IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN MONDAY, THE 26TH SEPTEMBER 2011 / 4TH ASWINA 1933 Crl.MC.No. 3054 of 2011 -------------------------------- MC.183/2011of SUB DIVISIONAL MAGISTRATE, KASARAGOD AT KANHANGAD .................... PETITIONER/COUNTER PETITIONER: A.K.SURESH, S/O.RAGHAVAN, AGED 36 YEARS, RESIDING AT KUSHAVANKUNNU, AJANOOR VILLAGE, HOSDURG TALUK, KASARAGOD DISTRICT. BY ADV. SRI.T.MADHU RESPONDENTS/STATE: 1. THE SUB DIVISIONAL MAGISTRATE, KASARAGOD AT KANHANGAD, OFFICE OF THE SUB DIVISIONAL MAGISTRATE, KASARAGOD AT KANHANGAD, KANHANGAD PO, KASARAGOD DISTRICT. 2. THE SUB INSPECTOR OF POLICE, HOSDURG POLICE STATION, KASARAGOD DISTRICT. 3. THE STATE OF KERALA, REP.BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM. BY PUBLIC PROSECUTOR SRI.JAYASURYA THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 26/09/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: APPENDIX IN CRMC 3054/2011 ANNEXURE-A1 TRUE COPY OF THE ORDET DT. 18.8.2011 IN MC 183.2011 ON THE FILE OF SDM KASARAGOD AT KANHANGAD. /TRUE COPY/ N.K.Balakrishnan, J. ------------------------------------------- Crl.M.C.No.3054 of 2011 ------------------------------------------- Dated this the 26th day of September, 2011 ORDER Based on the report submitted by the Sub Inspector of Police, Hosdrug, action was initiated against the petitioner by the Sub Divisional Magistrate, Kasargod at Kanhangad under Section 107 of Code of Criminal Procedure. The report was to the effect that there existed serious political tension in Ajanur Village and that the petitioner was preparing and trying to create political tension and that, his acts were likely to create breach of peace, disturbing public tranquility in the locality. Pursuant to the report, a show cause notice was issued to the petitioner as to why he shall not execute a bond with or without sureties for keeping peace in the locality to such period not exceeding one year as contemplated under Section 107(1) of Code of Criminal Procedure. 2. Learned counsel for the petitioner submits that the impugned order would show that an order was passed by the Sub Divisional Magistrate directing the petitioner to execute an interim bond under Section 116(3) of Code of Criminal Procedure pending enquiry proceedings so as to prevent him from causing breach of peace and public tranquility. The Sub Divisional Magistrate directed the CRMC 3054/2011 2 petitioner to execute a bond for `.5,000/- in cash without sureties within a week. This, according to the learned counsel, is against the provisions contained in the relevant section. It is argued by the learned counsel that the proviso to Section 116(3) of Code of Criminal Procedure would show that bond shall be executed only in a case where action was initiated under Sections 108, 109 or 110 of Code of Criminal Procedure and not in a case where action was initiated under Section 107 of Code of Criminal Procedure. That argument cannot hold good. The proviso has no application to the proceedings initiated under Section 107 of Code of Criminal Procedure. 3. Section 116(3) of Code of Criminal Procedure makes it clear that after the commencement and before the completion of the inquiry under sub-section (1), the Magistrate, if he considers that immediate measures are necessary for prevention of breach of the peace or disturbance of the public tranquility or the commission of any offence or for the public safety, may, for reasons to be recorded in writing, direct the person in respect of whom the order under Section 111 has been made to execute a bond, without or without sureties, for keeping the peace or maintaining good behaviour until the conclusion of the inquiry and may detain him in custody until such bond is executed or in default of execution, until the inquiry is concluded. CRMC 3054/2011 3 4. Section 111 of Code of Criminal Procedure says that when a Magistrate acting under Sections 107, 108, 109 or Section 110, deems it necessary to require any person to show cause under such section, he shall make an order in writing, setting forth the substance of the information received, the amount of the bond to be executed, the term for which it is to be in force and the number, character and class of sureties, if any, required. 5. It is seen that no specific order was passed by the learned Magistrate bearing in mind the provision contained in Section 111 of Code of Criminal Procedure. But, it is seen that petitioner, who was the counter petitioner in M.C.No.183/2011, did not appear before the Sub Divisional Magistrate as required under Section 112 of Code of Criminal Procedure. No action was also taken as contemplated under Section 113 of Code of Criminal Procedure. The power to dispense with the personal attendance is mentioned in Section 115 of Code of Criminal Procedure. That is only an enabling provision. Admittedly, no such petition was filed before the Sub Divisional Magistrate and no order was passed under Section 115 of Code of Criminal Procedure. Therefore, presence of the petitioner before the Sub Divisional Magistrate was a must. 6. Now, learned counsel for the petitioner submits that petitioner is ready and willing to appear before the Sub Divisional CRMC 3054/2011 4 Magistrate on a day fixed by this Court. 7. In order to enable the Magistrate to pass an order after hearing the petitioner, the impugned order is set aside. But the petitioner is directed to appear before the Sub Divisional Magistrate, Kasargod at Kanhangad on 11.10.2011 at 10.30 a.m.. The Sub Divisional Magistrate will follow the procedure contemplated under Sections 111 to 116 of the Code of Criminal Procedure. The Sub Divisional Magistrate shall pass appropriate orders after hearing the petitioner and his counsel, if any, in accordance with law. This petition is disposed of as above. (N.K.Balakrishnan, Judge) tkv