IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 14TH JANUARY 2010 / 24TH POUSHA 1931 WP(C).No. 35946 of 2009(Q) --------------------------------------- M.C.113/2009 OF SUB DIVISIONAL MAGISTRATE COURT, FORT KOCHI. .................... PETITIONER(S): ---------------------- M.C. WILSON, S/O.CYRIL, CC NO.14/1242A, MUTHUNGAL HOUSE, MOOLAMKUZHI, RAMESWARAM, KOCHI. BY ADV. MR.K.RAVEENDRAN, MR.P.VISWANATHA MENON. RESPONDENT(S): ------------------------- 1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. THE SUB DIVISIONAL MAGISTRATE, FORT KOCHI. 3. THE SUB INSPECTOR OF POLICE, THOPPUMPADY POLICE STATION, COCHIN. R1 TO R3 BY GOVERNMENT PLEADER MR.S.U. NAZAR. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 14/01/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs. M.SASIDHARAN NAMBIAR,J. ------------------------------------------ W.P.C.NO.35946 OF 2009 ------------------------------------------ Dated 14th January 2010 JUDGMENT Petitioner is the counter petitioner in M.C.113/2009 of Sub Divisional Magistrate, Fort Kochi. By Ext.P3 order passed by Sub Divisional Magistrate, under Section 111 of Code of Criminal Procedure, proceedings under Section 107 was initiated and the petitioner was directed to show cause why he shall not be required to enter into a bond for Rs.10,000/- and also to furnish security by a bond of two sureties for the like sum and keep peace for a term of one year. This petition is filed under Articles 226 and 227 of Constitution of India for a writ of mandamus to quash Wpc 35946/09 2 Ext.P3 order contending that there was no material before the Sub Divisional Magistrate to initiate the proceedings under Section 107 of Code of Criminal Procedure as against the petitioner and it is only an abuse of process of the court. 2. Learned counsel appearing for the petitioner and learned Public Prosecutor were heard. 3. Ext.P3 order passed by the Sub Divisional Magistrate does not disclose the information based on which proceedings were initiated. Ext.P3 only shows that Sub Divisional Magistrate has received a report from the Sub Inspector/Circle Inspector of police to the effect that petitioner is likely to endanger public tranquility as he is continuing criminal activities and Sub Wpc 35946/09 3 Inspector has reported that petitioner is involved in crime Nos.168/2009 and 169/2009. Ext.P3 does not disclose what was the allegation against the petitioner in those cases or for what offence was allegedly committed by the petitioner. 2. Learned Public Prosecutor made available case diary relating to crime Nos.168/2009 and 169/2009. Cases diary in Crime 168/2009 shows that petitioner is not an accused but de facto complainant. After investigation a refer report was filed on 20/9/2009. Case diary in crime 169/2009 shows that, that case was registered for the offence under Sections 341, 323, 324 and 427 of Indian Penal Code as against three accused based on first information statement of Neelwilson on the allegation that accused wrongfully Wpc 35946/09 4 restrained him and voluntarily caused hurt. 3. If proceedings under Section 107 is to be initiated for the existence of crime 168/2009, proceedings is to be initiated against all the three accused therein. Therefore, it is clear that proceedings were not initiated based on the acts allegedly involved in crime 168/2009. When there is no material to show that petitioner was involved in any act leading to breach of peace or tranquility in the locality, as claimed in Ext.P3, and out of two cases referred therein, one case is registered on the allegation that petitioner sustained injury, he being the de facto complainant, when the information based on which Sub Divisional Magistrate has initiated proceedings under Section 107 of Code of Criminal Procedure as mandated under Section Wpc 35946/09 5 111 of Code of Criminal Procedure, proceedings can only be quashed. Petition is allowed. Ext.P3 proceedings initiated under Section 107 of Code of Criminal Procedure in M.C.113/2009 by Sub Divisional Magistrate, Fort Kochi is quashed. M.SASIDHARAN NAMBIAR, JUDGE. uj.