Judgment :- 1. The petitioners in this criminal miscellaneous petition are counter-petitioners f and 4 in M. C. No. 7 of 1980 pending before the Sub Divisional Magistrate, Moovattupuzha. The learned Magistrate had initiated proceedings is M. C. No. 7 of 1980 under S.107 of the Code of Criminal Procedure, 1973, on a report submitted to him by the Sub Inspector of Police, Kunnathunad duly countersigned by the Deputy Superintendent of Police, Alwaye, against these petitioners and 25 others. The police report alleges that there is a likelihood of breach of peace at the instance of these petitioners and other counter-petitioners in M. C. No. 7 of 1980. In the impugned order the grounds stated are: "The counter-petitioners are residing in North Mazhuvannoore Kara, Mazhuvannoore Village and Kunnathunad Taluk within the local limits of the jurisdiction of this Court and they are the R. S.S. Workers and followers. A case is pending against them in Crime No. 60/80 of Kunnathunad Police Station. The counter-petitioners, are on enemical terms with Sri Narayana Kaimal, the former legal heir of the Blanthevar Temple and his relatives and friends and they are threatening them. The witness No. 4 Sri Narayana Kaimal has given land for construction of a building to Khadi Board near to the temple and the Khadi Board has started construction of the building. On 10th May - 1980, the counter-petitioners 1 to 12 trespassed over the property of the Khadi Board, and assaulted the construction workers and 'threatened them with deadly weapons and also demolished a portion of the building. In this connection, a case has been registered against the counter-petitioners as Crime No. 60/80 and it is under investigation. On 17th May 1980 at about 5a.m. the counter-petitioners gathered together in the premises of the Blanthevar Temple and assaulted Sri Narayana Kaimal, witness No. 4 Kunju Nair, witness No.5 and Govidan, witness No.6 with a stick when they go to worship in the temple and thereby caused head injury to the witnesses and they were admitted in the Government Hospital, Perumbavoor. A case has been registered against them in Crime No. 146/80 of the Kunnathunad Station and it is under investigation. If the counter-petitioners are allowed to be at large, it will lead to a serious breach of peace and public tranquillity. A case has been registered against them in Crime No. 146/80 of the Kunnathunad Station and it is under investigation. If the counter-petitioners are allowed to be at large, it will lead to a serious breach of peace and public tranquillity. In the above circumstances, the counter-petitioners found to be a nuisance in the locality and they are creating troubles and thereby causing danger to human life and public tranquillity. Hence this order." 2. The learned Magistrate has said that he is directing and requiring the counter-petitioners is the proceedings before him to attend the court and show cause why they should not be ordered to execute a bond for Rs. 2,000 with two solvent sureties for like amount for keeping the peace for a period of one year under S.107 of the Code of Criminal Procedure. As "it has been made to appear before him by credible information laid before the court by the Sub Inspector of Police, Kunnathunad duly countersigned by the Deputy Superintendent of Police, Alwaye, that the counter-petitioners referred to above are likely to commit breach of peace or do wrongful acts by which breach of peace may probably be occasioned in Mazhuvannoore Kara and Village, in Kunnathunad Taluk within the local limits of the jurisdiction" of that court. 3. The petitioners would contend that the impugned order has been issued due to political pressure exerted on the authorities concerned and on false data furnished to the learned Magistrate. It is submitted that the property which is the subject matter of dispute is 1 acre 27 cents forming part of survey numbers 595/4B, 595/4A, 595/3A and 575/3B of Mazhuvannur Village and is part of the Mazhuvannur Blanthevar Temple premises, which according to the petitioners belongs to the N S.S. Karayogam No. 1249 and possessed by the petitioners for and on behalf of the said Karayogam. They are respectively the President and Secretary of the said N.S.S. Karayogam. The temple had been constructed by the said Karayogam years back. The property wherein the temple is situated and which forms the temple premises belonged to the family by name Oliyapurathu Madam, Mazhuvannur. By a sale deed of 1095, the family conveyed its rights to the Karayogam.. Thereafter, the Karayogam is in possession of the property and is managing the temple affairs. The property wherein the temple is situated and which forms the temple premises belonged to the family by name Oliyapurathu Madam, Mazhuvannur. By a sale deed of 1095, the family conveyed its rights to the Karayogam.. Thereafter, the Karayogam is in possession of the property and is managing the temple affairs. While so, Narayana Kaimal, referred to in the order, pretending to be the owner of the property executed a sale deed in respect of a portion of the property in favour of the Khadi Board on 24th March 1980, without mentioning the sale deed in favour of the Karayogam and also the fact that Karayogam is in possession of the property even before the date of sale deed in their favour executed in 1095 M.E. 4. The petitioners' further case is that on the strength of the said document executed by Narayana Kaimal some persons who claim to be either workers or associates of the Khadi Board attempted "to commit trespass into the temple compound and also to demolish a portion of the compound wall. They would allege that on enquiry it was found that some of the workers of one of the major partners in the coalition Government of Kerala, are behind such attempt and they are only making use of the name of the Khadi Board to achieve their object of taking possession of the temple property. The petitioners approached the police in the matter, who expressed their helplessness as the persons behind that attempt are members of one of the Ruling parties in Kerala. This led to the filing of a suit, O. S, No. 94 of 1980 in the Munsiff's Court, Perumbavoor, praying for a permanent injunction against the defendants therein who are the persons referred to earlier. The petitioners also state that an Advocate of that court was appointed as Commissioner and a report had been submitted by the Commissioner in the case. Pending the suit, the aforesaid persons attempted to commit trespass into the property and since the police did not take any action, a private complaint was filed as C. C. 283 of 1980 before the Judicial Magistrate of First Class, Perumbavoor. This matter is pending before the Perumbavoor First Class Magistrate Court. Pending the suit, the aforesaid persons attempted to commit trespass into the property and since the police did not take any action, a private complaint was filed as C. C. 283 of 1980 before the Judicial Magistrate of First Class, Perumbavoor. This matter is pending before the Perumbavoor First Class Magistrate Court. It is the petitioners' case that after the civil suit was instituted, due to political influence the concerned persons got registered two criminal cases against the petitioners and some others which cases are referred to in the impugned order. The investigations in these cases are not over. The impugned order is issued, according to the petitioners, falsely picturing them and other counter-petitioners as R. S. S. workers and followers and further falsely alleging that the situation therein is tense and there is likelihood of breach of peace. 5. What is contended before me by Mr. Achutha Kurup, learned counsel for the petitioner is that the learned Magistrate is bound to consider the materials placed before him and to satisfy himself there are sufficient grounds for invoking S.107 Criminal Procedure Code. The order apparently would indicate that the learned Magistrate has not applied his mind to the facts of the case and he was acting mechanically. It is argued that the civil court is seized of the matter and dispute if at all relates to the property pending adjudication before the competent Civil Court and this fact is deliberately kept concealed before the learned Magistrate. It is also stated that even assuming that the facts revealed in the preliminary order are true, no case really arises under S.107, Criminal Procedure Code. It is pointed out by the learned counsel that the foundation for invoking the jurisdiction under S.107, Criminal Procedure Code is imminent danger to the peace and tranquillity. The reasons stated in the impugned order will not justify such an inference. No materials had been placed before the learned Magistrate to get himself satisfied that it is necessary in the circumstances to invoke his jurisdiction under S.107, Criminal Procedure Code. 6. I may first quote S.107 of the Code of Criminal Procedure: "107. Security for keeping the peace in other cases. No materials had been placed before the learned Magistrate to get himself satisfied that it is necessary in the circumstances to invoke his jurisdiction under S.107, Criminal Procedure Code. 6. I may first quote S.107 of the Code of Criminal Procedure: "107. Security for keeping the peace in other cases. (1) When an Executive Magistrate receives information that any person is likely to commit a breach of the peace or disturb the public tranquillity or to do any wrongful act that may probably occasion a breach of the peace or disturb the public tranquillity and is of opinion that there is sufficient ground for proceeding, he may, in the manner hereinafter provided, require such person to show cause why he should not be ordered to execute a bond, for keeping the peace for such period, not exceeding one year, as the Magistrate thinks fit. (2) Proceedings under this section may be taken before any Executive Magistrate when either the place where the breach of the peace or disturbance is apprehended is within his local jurisdiction or there is within such jurisdiction a person who is likely to commit a breach of the peace or disturb the public tranquillity or to do any wrongful act as aforesaid beyond such jurisdiction." 7. It might be noted that this section does not contemplate the drawing up of proceedings automatically whenever information of the kind mentioned in the section is received by the Magistrate. Action can be taken only when the Magistrate is of opinion that there are sufficient grounds for proceeding. The Magistrate has to exercise his discretion with reference to the credibility and sufficiency of the information received by him. The prior formation of ' the opinion by the Magistrate under S 107 is that which gives him jurisdiction to proceed further under S.111 and following sections. The formation of opinion should be on cogent material. Though the initiation of the proceedings depends on Magistrate's subjective satisfaction and in his discretion, there should be cogent materials before him on which a reasonable opinion for initiating the action could be formed. The Magistrate may not do, in Lord Radcliffe's language in another context (Attorney General v. Hallet and Carey Ltd. (1952) A. C. 427 at 450 "whatever he may feel inclined, for what he does must be capable of being related to one of the prescribed purposes". 8. The Magistrate may not do, in Lord Radcliffe's language in another context (Attorney General v. Hallet and Carey Ltd. (1952) A. C. 427 at 450 "whatever he may feel inclined, for what he does must be capable of being related to one of the prescribed purposes". 8. It is really unfortunate that the information which the Police placed before the Magistrate has not referred to the vital factor of the civil suit and the Civil Court's Order (in O. S.94 of 1980 of the Munsiff's Court, Perumbavoor) I. A. 766 of 1980of 7th April 1980 directing defendants 3 to 9 in the suit to maintain the status quo. In proceedings under this section, an attempt must always be made to ascertain the legal rights of the parties. The Magistrate should never allow himself to be made an instrument to flout the civil court's order. The Magistrate says that as per the information submitted by the Police the counter-petitioners in the M. C. are likely to commit breach of peace or to do wrongful acts by which breach of peace may probably be occasioned. As Sadasivan, J. pointed out in Chirukandath Chandrasekharan v. The State of Kerala 1970 KLJ. 61 an apprehension of a possible breach of peace is not what is contemplated in S.107, Criminal Procedure Code. It must appear to the Magistrate that a likelihood of a breach of peace is imminent and as pointed out in Queen v. Kidar Nath 7. N. W. P. C. R.233 and Queen v. Abdul Haq 20 W.R. 57 there must be something more than a bare possibility, there must be a reasonable likelihood of a breach of peace. 9. Therefore without going into the other questions raised by the petitioner also on the basis of 1970 KLJ. 61 the correctness of which decision, on those points the learned Public Prosecutor questions. I am of the view that the Magistrate's order is against law and has to be quasbed. No doubt this will not prevent the Magistrate from initiating any fresh action if there is an imminent threat of breach of peace but before taking such action which he can do in his discretion, he should satisfy himself that there are relevant materials on which reasonable opinion of the likelihood of an imminent threat to peace could be formed. No doubt this will not prevent the Magistrate from initiating any fresh action if there is an imminent threat of breach of peace but before taking such action which he can do in his discretion, he should satisfy himself that there are relevant materials on which reasonable opinion of the likelihood of an imminent threat to peace could be formed. And in the circumstances disclosed he should carefully scrutinise whether there is an attempt to bypass the civil court's proceedings for clutching at the property in dispute He should also consider whether in the nature of the dispute regarding property whether the proper proceedings to be initiated is under S.145 of the Criminal Procedure Code. In a democratic political set up it will be unfortunate if the authorities in charge of law and order create an impression that they are succumbing to any sort of political pressure. It might be noted that the power is given to the Magistrate under this section so that effective preventive steps could be taken to prevent breach of peace and to maintain peace and order. It will be useful to quote from the Forty-first Report of the Law Commission: "In all States where separation of the judiciary has been introduced in some form or other, powers under this section are exercisable exclusively by Executive Magistrates. In order to be effective, proceedings under the section have to be taken urgently and as they are immediately concerned with the maintenance of peace and order, the functions should, in our opinion, be assigned to Executive Magistrates. We do not, however, think it necessary to restrict the power to take action under sub-s. (1) to District Magistrates and Sub Divisional Magistrates. A District Magistrate who is the administrative head of the District will not in practice have any time to look to such proceedings. It is. therefore, proposed that any Executive Magistrate may be vested with the power to take security proceedings under the section. It is not necessary to invest Judicial Magistrates with concurrent powers." 10. The Executive Magistrates being so authorised, it is essential that the steps they take under the very wide power given should be one for maintenance of peace and order. The Magistrate should understand that in the exercise of his powers under S.107, Criminal Procedure Code he owes no obedience to any executive power. The Executive Magistrates being so authorised, it is essential that the steps they take under the very wide power given should be one for maintenance of peace and order. The Magistrate should understand that in the exercise of his powers under S.107, Criminal Procedure Code he owes no obedience to any executive power. He is only to act reasonably and in good faith I am certainly aware that the High Court will seldom interfere in the preliminary stage with the discretion of the Magistrate in taking action under the preventive sections of the Code. However, when the relevant materials before the Magistrate are insufficient to support the action, the Court has no option but to interfere. The discretion of the Magistrate to initiate the action is a judicial discretion. The Criminal Miscellaneous Petition is allowed and the impugned order is quashed.