IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT WEDNESDAY, THE 21ST JANUARY 2009 / 1ST MAGHA 1930 Crl.MC.No. 4415 of 2008() --------------------------------------- M.C.NO.187/2008 OF SUB DIVISIONAL MAGISTRATE COURT,ALAPPUZHA ........ PETITIONER(S): PETITIONERS: ----------------------------------------------- 1. VIMAL RAVEENDRAN, AGED 27 YEARS, RAVEENDRAN NAIR, PANKAJ NIVAS, THYCATTUSSERI P.O. CHERTHALA. 2. HARI SANKAR, AGED 21 YEARS, S/O. SURENDRAN NAIR, MADATHIPARAMBU, THYCATTUSSERI P.O., CHERTHALA. BY ADV. SRI.B.PRAMOD SRI.GEORGE MATHEWS RESPONDENT(S): PETITIONER & STATE: -------------------------------------------------------------- 1. SUB INSPECTOR OF POLICE, POOCHACKAL POLICE STATION. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI. P.A. SALIM FOR R1 & R2 THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 21/01/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss R.BASANT, J. ---------------------- Crl.M.C.No.4415 of 2009 ---------------------------------------- Dated this the 21st day of January 2009 O R D E R Petitioners are persons against whom proceedings under Chapter 8 has been initiated by the Sub Divisional Magistrate, Alappuzha. The order passed under Section 111 Cr.P.C alleges that the counter petitioners (petitioners herein) “are disturbing the tranquility in the area and are also engaged in acts which resulted in breach of the peace and security of the public. The impugned order dated 13/10/2008 which is purportedly passed under Section 107 Cr.P.C calls upon the petitioner “to enter into a bond for good behaviour with sureties” for a period of one year. 2. The learned counsel for the petitioners submits that the petitioners lead a respectable life. They are not involved in any crime. The 1st petitioner is working as a Scientific Information Executive and the 2nd petitioner is working as a teacher. They are not involved in any such instances of breach of peace and security. The learned counsel for the petitioners accepts that a crime has been registered against the petitioners as crime No.213/08 about an alleged incident which took place Crl.M.C.No. 4415/08 2 on 14/9/2008. That crime is registered under Section 341 and 323 read with 34 I.P.C. Except this one crime, there is no other allegations whatsoever against the petitioners of having committed any crime. In these circumstances, initiation of proceedings against the petitioners under Chapter 8 of the Cr.P.C is totally unjustified, argues the learned counsel for the petitioners. 3. The learned counsel for the petitioners further submits that there has been total absence of application of mind by the Sub Divisional Magistrate to the relevant facts before passing order under Section 111 Cr.P.C. There is no reference even to the said crime, that is crime No.213/08 in the impugned order produced as Annexure I. Though reference is made to Section 107 Cr.P.C, the operative portion of the order reveals that security is demanded not for keeping the peace; but for good behaviour under Section 108 Cr.P.C. There has been no clear application of mind as to whether Section 107 or 108 Cr.P.C is applicable to the petitioner, contends counsel. 4. I find merit in the contentions raised. I agree with the learned counsel for the petitioner that an anxious reading of the impugned order does not even suggest that the Sub Divisional Crl.M.C.No. 4415/08 3 Magistrate had applied his mind to crime No.213/08 registered against the petitioners. The learned Sub Divisional Magistrate does not appear to have considered at all whether the petitioners are involved in any other crime. I do further agree that significantly the impugned order does not call upon the petitioners to execute bonds as security for keeping the peace whereas the tenor of the impugned order suggests that security is demanded not for keeping the peace; but for good behaviour. Initiation of proceedings under Section 107 Cr.P.C is a matter of great consequence. Due and proper application of mind should precede an order under Section 111 Cr.P.C. The case diary has been placed before me for my perusal. I have gone through the impugned order. The materials available do not at all persuade me to entertain the requisite satisfaction that the Sub Divisional Magistrate has duly careful and cautiously applied his mind to the relevant facts before passing an order under Section 111 Cr.P.C. It follows therefore that the impugned order deserves to be set aside. 5. In the result, a) This Crl.M.C is allowed. b) The impugned order is set aside. Crl.M.C.No. 4415/08 4 6. I make it clear that the setting aside of the impugned order shall not in any way fetter the powers of the Sub Divisional Magistrate to initiate further action against the petitioners, if there be need, circumstances and materials to support such further action. (R.BASANT, JUDGE) jsr Crl.M.C.No. 4415/08 5 R.BASANT, J. CRL.M.C.No. of 2008 ORDER 09/07/2008