IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 4TH MARCH 2011 / 13TH PHALGUNA 1932 Crl.MC.No. 548 of 2011() --------------------------------- A3-2381/2010 OF SUB DIVISIONAL MAGISTRATE, THIRUVALLA. ......... PETITIONER(S): ACCUSED -------------------------------------- 1. SUNNY JOSEPH, S/O.JOSEPH, THAZHATHUPARAMBIL HOUSE, THOLIKKODU KARA, PUNALUR VILLAGE, PATHANAPURAM TALUK, KOLLAM DISTRICT. 2. JIJI JOSEPH, W/O. SUNNY JOSEPH, THAZHATHUPARAMBIL HOUSE, THOLIKKODU KARA, PUNALUR VILLAGE, PATHANAPURAM TALUK, KOLLAM DISTRICT. BY ADV. SRI.M.P.MADHAVANKUTTY RESPONDENT(S): COMPLAINANT ------------------------------------------------- VILLAGE OFFICER, KUNNAMTHANAM VILLAGE MALLAPALLY TALUK ,PATHANAMTHITTA DISTRICT, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SMT.M.K.PUSHPALATHA THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 04/03/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: tss THOMAS P JOSEPH, J. ---------------------------------------- Crl.M.C.No.548 of 2011 --------------------------------------- Dated this 04th day of March, 2011 ORDER Petitioners who are respondents before Sub Divisional Magistrate, Thiruvalla challenge Annexure-VI, order dated 10.02.2011 whereby they were directed to appear before the Sub Divisional Magistrate on 16.02.2011 “and shall pay an interim bond of `.50,000/- as self bank guarantee within 15 days of receipt”. 2. Petitioners were initially served with Annexure-IV, notice dated 29 January, 2011 alleging that they are involved in illegal filling of paddy land situated in Kunnamthanam Village, such activities are reported to be carried out even during late night with the help of antisocial elements threatening the neighbours and revenue officials in case of obstruction and that petitioners have informers and escorts gathered at junction points to watch and report the arrival of revenue officials. The Sub Divisional Magistrate for the said reason thought that petitioners caused breach of public peace and tranquility by resorting to the above tactics and there is a definite chance that activities of petitioners will cause breach of peace and disturb Crl.M.C.No.548 of 2011 -: 2 :- public tranquility in future also. Accordingly Annexure-IV, notice was issued to the petitioners to appear before the Sub Divisional Magistrate on 07.02.2011 at 11 a.m and show cause why they shall not be required to execute a bond with two solvent sureties for the sum of Rupees One Lakh each for keeping peace or good behaviour for a period of one year. Pursuant to that notice, petitioners say, that they appeared before the Sub Divisional Magistrate on 07.02.2011 and requested time to file objection to show cause notice but, without granting opportunity to them to file their objection the Sub Divisional Magistrate passed Annexure-VI, order referred to above which is under challenge in this proceeding. Learned counsel submitted that apart from the fact that petitioners were not given sufficient time to show cause as they were asked in Annexure-IV, notice, the Sub Divisional Magistrate could not direct petitioners to execute a bond as directed in Annexure-VI since there was no proceeding against petitioners under Secs.108, 109 or 110 of the Code of Criminal Procedure (for short, "the Code”). Annexure-VI, order is illegal, it is contended. Learned Public Prosecutor submitted that it was after petitioners were given a personal hearing that Annexure-VI, order was passed. Crl.M.C.No.548 of 2011 -: 3 :- 3. Going by Annexure-IV, order petitioners were directed to appear before the Sub Divisional Magistrate on 07.02.2011 and Annexure-VI, order is signed on 10.02.2011. There, it is stated that petitioners appeared on 07.02.2011 and had requested 14 days' time to file objection. It is certain from Annexure-VI, order that the said request of petitioners was not entertained by the Sub Divisional Magistrate and instead, he proceeded to pass Annexure-VI, order which of course was signed by him only on 10.02.2011. I am persuaded to think that execution of bond being a matter of serious consequence, petitioners should have been given opportunity to file their objection to Annexure-IV, notice. 4. It is pointed out by learned counsel that in view of clause (a) to the proviso to Subsec.(3) of Sec.116 of the Code, only a person facing inquiry under Secs.108, 109 or 110 of the Code could be directed to execute bond after commencement of the inquiry and before its completion. It is contended by learned counsel that so far as Annexure-IV, notice goes there is no proceeding against petitioners under Secs.108, 109 or 110 of the Code but, it is purely under Sec.107 of the Code in which case the Sub Divisional Magistrate lacked authority to direct petitioners to Crl.M.C.No.548 of 2011 -: 4 :- execute interim bond as directed in Annexure-VI. I am not deciding that question in this proceeding since that is a matter which the Sub Divisional Magistrate has to consider since petitioners have not filed their objection pursuant to Annexure- IV, notice. 5. I found that petitioners should have been given sufficient time to show cause against execution of bond as directed in Annexure-IV, notice but that was not done. In view of that, I am inclined to set aside Annexure-VI, order. Resultantly Annexure-VI, order dated 10.02.2011 passed by the Sub Divisional Magistrate, Thiruvalla in proceeding No.A3- 2831/10 is set aside and the matter is remitted to the Sub Divisional Magistrate for fresh decision after giving petitioners reasonable time to show cause against Annexure-IV, notice. (THOMAS P JOSEPH, JUDGE) Sbna/- /True Copy/ P.A to Judge