IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA MONDAY, THE 22ND MARCH 2010 / 1ST CHAITHRA 1932 Crl.MC.No. 1778 of 2006() ------------------------- MC.87/2006 of SUB DIVISIONAL MAGISTRATE COURT, THIRUVANANTHAPURAM. .................... PETITIONER(S): COUNTER PETITIONER --------------------------------- SANTHOSHKUMAR @ BABY, S/O.SAMBASIVAN, SABITHAS, KARAVARAM VILLAGE, MANANBOOR THOTTAIKAD, THIRUVANANTHAPURAM DISTRICT. BY ADV. SRI.LATHEESH SEBASTIAN RESPONDENT(S): STATE/PETITIONER ------------------------------- 1. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. THE SUB INSPECTOR OF POLICE, KALLAMBALAM POLICE STATION. PUBLIC PROSECUTOR SRI.B.JAYASURYA THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 22/03/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K. HEMA, J. --------------------------------------------------- Crl.M.C. No. 1778 of 2006 --------------------------------------------------- Dated this 22nd day of March, 2010. ORDER This petition is filed to quash Annexure A1 proceedings initiated against petitioner under Section 107 of the Code of Criminal Procedure ('Cr.P.C.' for short). 2. A report was filed by the Sub Inspector before the Sub Divisional Magistrate alleging that petitioner was accused in a murder case which is being tried in S.C.No.28/99 before the Sessions Court. The allegation is that on 29.9.1995, petitioner along with certain others trespassed into the house of one Manilal and pulled him out of the house and caused injuries by cutting with swords and also creating terrorised atmosphere by throwing crackers etc. and caused his death and a crime was registered under Sections 143, 147, 148, 149, 120(b), 302 IPC and Section 3 of Explosive Substance Act and 27 of Arms Act. The Sub Divisional Magistrate issued a show cause notice to petitioner under Section 107 and hence this petition is filed. 3. Learned counsel for petitioner submitted that the proceedings initiated against petitioner are highly belated. The [Crl.MC.No.1778/2006] 2 delay in initiating proceedings itself is a ground to quash Annexure A1 proceedings which are initiated under Section 107 Cr.P.C, it is submitted. According to him, there are only vague allegations in the report, Annexure A1 and only one incident is referred to in Annexure A1, which has occurred about 11 years, prior to the report. Therefore, the proceedings are bad, it is submitted. 4. Learned Public Prosecutor argued that it is the subjective satisfaction of the Magistrate which is relevant in a proceeding under Section 107 Cr.P.C. Petitioner was involved in an offence under Section 302 IPC and the matter was reported by the Sub Inspector Petitioner was proceeded against on the basis of the materials placed before the court. There is no reason to interfere with the proceedings, it is submitted. 5. On hearing both sides and on going through Section 107 Cr.P.C., I find that as per the said section, when an Executive Magistrate receives information that any person is likely to commit breach of peace or disturb the public tranquility or to do any wrongful act that may probably occasion a breach of the peace or disturb public tranquility and is of opinion that there is sufficient ground for proceeding, he may require such person to show cause why he should not be ordered to execute a bond for keeping [Crl.MC.No.1778/2006] 3 peace for such period, not exceeding one year, as the Magistrate thinks fit. 6. It is clear from a reading of the above provision that the Magistrate has to form an opinion on the basis of the information received by him and there are sufficient grounds for proceeding against the person against whom an order is passed under Section 107 Cr.P.C. The only material placed before the Magistrate is Annexure A1. There are only vague allegations therein that petitioner is likely to commit breach of peace or disturb the public tranquility etc. But no specific instance is mentioned therein to show that immediately prior to the filing of the report in 2006, petitioner had committed any act which had given the informant a feeling that petitioner is likely to commit breach of peace or disturb public tranquility. 7. The only instance reported in Annexure A1 is the involvement of petitioner in a murder case which occurred in the year 1995 about 11 years prior to the filing of the report. It is not mentioned in Annexure A1 whether during this period for over a period of 11 years, petitioner was involved in any criminal activity, which is likely to cause breach of peace or disturb public tranquility. Therefore, on the materials placed before the court, as per [Crl.MC.No.1778/2006] 4 Annexure A1, the Magistrate court could not have formed an opinion that there is sufficient ground for proceeding against the petitioner under Section 107 of the Code. 8. The facts stated in Annexure A1 are too insufficient to form the requisite opinion to proceed against petitioner under Section 107 of Cr.P.C., In such circumstances, I find that petitioner ought not to have been proceeded against under Section 107 on the basis of Annexure A1. Hence, the following order is passed: Further proceedings initiated against petitioner on the basis of Annexure A1 report under Section 107 of Cr.P.C. shall be dropped. Petition is allowed. Sd/- K. HEMA, JUDGE. Krs.