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2014 DIGILAW 191 (KER)

Ahammad Kabeer, Kollam v. State of Kerala

2014-02-28

K.RAMAKRISHNAN

body2014
Judgment K. Ramakrishnan, J. 1. This is an application filed by the petitioner to quash Annexure-A order issued by the Sub Divisional Magistrate, Kollam under Section 482 of the Code of Criminal Procedure. 2. It is alleged in the petition that Annexure -A order dated 21.12.2013 is issued against the petitioner under Section 111 of the Code of Criminal Procedure on the basis of vague allegations. There is nothing mentioned in that order regarding the information received, which prompted the second respondent to issue Annexure-A order. So the petitioner has no other remedy except to approach this Court seeking the following relief: For these and other grounds to be urged at the time of hearing, it is most humbly prayed that, this Hon'ble Court may be pleased to call for the records relating to Annexure A order and quash all proceedings in furtherance to the same in MC.No.720/13 of Sub Divisional Magistrate, Kollam forthwith. 3. This Court has called for a report from the Sub Divisional Magistrate namely the second respondent regarding the circumstances which warranted issuance of Annexure-A order, for which a statement has been filed through Senior Superintendent of that office which reads as follows: “It is submitted that, the Sub Inspector of Police, Kadakkal has filed an FIR under Section 107 Cr.P.C before this Honourable Court vide Frime No.158/13 has reported that Sri. Ahammed Kabeer, S/o. Aliyarukunju, Melecharuvil Veedu, Elampazhannoor, Kadakkal Village is indulging in criminal activities frequently, causing threat to public tranquility and peaceful life of the resident of Kadakkal and Elampazhanoor and nearby places and further pleaded that the counter petitioner (Ahammed Kabeer) be required to enter into a bond with this Court for keeping peace for one year and issued summons. Matter has been examined by this Court from the report submitted by the petitioner (Sub Inspector of Police, Kadakkal), it is seen that three crimes viz., 164/2007,502/2008 and 1039/2009 have already been registered against the counter petitioner, under various sections of Indian Penal Code, for petitions received from Sri. Purushothaman, Biju Bhavan, Kunnupuram, Elampapzhannoor, Sri. Nazarudheen, Vengamootil Veedu, Poredam, Chadayamangalam Village and Sri.Ramli, S/o. Muhammed Sali, Charuvila Puthen Veedu, Poredam, Chadayamangalam respectively. Purushothaman, Biju Bhavan, Kunnupuram, Elampapzhannoor, Sri. Nazarudheen, Vengamootil Veedu, Poredam, Chadayamangalam Village and Sri.Ramli, S/o. Muhammed Sali, Charuvila Puthen Veedu, Poredam, Chadayamangalam respectively. From the aforesaid substances, it is seen that the counter petitioner is of aggressive nature and committing crimes repeatedly, the former case is of assaulting the witness with the intention of murder, according to the petitioner and therefore, it appears to this Court that the counter petitioner is likely to cause breach of peace and public tranquility in Kadakkal and Elampazhannoor and nearby places. 2. On the basis of FIR, a case was registered as MC.No.720/2013 in this Court, exercising the power of the Sub Divisional Magistrate Court, and issued orders under Section 111 Cr.P.C to the counter petitioner to appear before this Honourable Court of Sub Divisional Magistrate, Kollam on 08.01.2014. On 08.01.2014 case was adjourned to 05.02.2014. On 05.02.2014, counter petitioner absent but the counsel of the CP attend the Court, filed Vakkalath and filed leave application. The case postponed to 21.03.2014. The action of the Sub Divisional Magistrate is as per law.” 4. Heard the counsel for the petitioner and the learned Public Prosecutor. 5. The counsel for the petitioner submitted that even going by the allegations in the crime registered for initiating proceedings under Section 107 of the Code of Criminal Procedure against the petitioner, there is no allegation that he has involved in any other crime in the recent past. The crimes registered against the petitioner were of more than three years and five years old. So there is no necessity for the second respondent to initiate the proceedings against the petitioner of such a nature. The counsel for the petitioner has relied on the decision reported in Moidu v. State of Kerala (1982 KLT 578 FB) and Girish P. v. State of Kerala (2009 (4)KHC 929). 6. The learned Public Prosecutor supported the action of the second respondent, the Sub Divisional Magistrate, in initiating proceedings against the petitioner on the ground that petitioner is even now a threat to the society. 7. It is an admitted fact that the Sub Inspector of Police, Kadakkal had registered Annexure-C crime as Crime No.158/2013 against the petitioner and sent Annexure-D report to the Sub Divisional Magistrate, Kollam for initiating proceedings against the petitioner under Section 107 of the Code of Criminal Procedure. Annexure D reads as follows: 8. 7. It is an admitted fact that the Sub Inspector of Police, Kadakkal had registered Annexure-C crime as Crime No.158/2013 against the petitioner and sent Annexure-D report to the Sub Divisional Magistrate, Kollam for initiating proceedings against the petitioner under Section 107 of the Code of Criminal Procedure. Annexure D reads as follows: 8. On the basis of this, the second respondent issued Annexure A order purporting to be under Section 111 of the Code, which reads as follows: “Whereas an FIR has been registered against the counter petitioner under Section 107 CrPC by the petitioner of Kadakkal Police Station for his wrongful acts and unlawful activities and I am satisfied that the above such activities of the counter petitioner may cause a breach of peace and disturbance to public tranquility with in the local limits of jurisdiction of this Court and Hence I am of the opinion that there is sufficient ground for proceeding against the counter petitioner U/s 107 of CrPC and therefore require him to appear in person before this Court of the Sub Divisional Magistrate Kollam by 2 PM on 8.1.2014 and show cause why he should not be ordered to execute a bond for Rs.20,000/- within two solvent sureties for the like amount to keep the peace for one year”. 9. Section 107 of the Code of Criminal Procedure deals with initiation of proceedings in order to secure security for keeping peace in the locality which reads as follows: “(Language)” Section 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 tranquility or to do any wrongful act that may probably occasion a breach of the peace or disturb the public tranquility and is of opinion that thee 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 [with or without sureties,] 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. 10. Section 111 of the Code of Criminal Procedure reads as follows: Section 111. Order to be made:- When a Magistrate acting under Section 107 Section 108, Section 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. 11. In the decision reported in Moidu's case (cited supra) a Full Bench of this Court had dealt with ingredients which are to be established for the purpose of satisfying the Sub Divisional Magistrate to initiate proceedings under Section 107 of the Code of Criminal Procedure which was narrated in paragraphs 4, 5 and 13 of that judgment which reads as follows: 4. To take proceedings against a person under S 107 of the Code there must be (1) receipt of information by the Magistrate (2) such information must be that a person is likely to commit breach of the peace or disturb the public tranquillity and (3) on such information the Magistrate must be able to form an opinion that there are sufficient grounds for proceeding. There is no controversy with regard to the first and the third elements. But it is really the scope of the second, namely, what should be the nature of the information concerning the likelihood of commission of the breach of the peace or disturbance of the public tranquility that calls for consideration. No hard and fast rule can be laid down as regards the nature and source of the information. As observed in C.S. Reddy v. State of A.P 1973 (79) Crl.LJ 1713 it may be that past conduct and wrongful act is the safe guideline. It is not the likelihood of a breach of the peace at any point of time that is relevant. As observed in C.S. Reddy v. State of A.P 1973 (79) Crl.LJ 1713 it may be that past conduct and wrongful act is the safe guideline. It is not the likelihood of a breach of the peace at any point of time that is relevant. The breach of the peace must be imminent to justify action under S.107. The information about the past conduct or wrongful acts of the past must not be remote or isolated but must be relatable to the present apprehension in the sense that it must have some relevance to the apprehension of likelihood of breach of the peace or disturbance of public tranquillity. 5. The contention that post conduct should t at all be the basis for taking proceedings under S.107 does not appear to be sound. There is no justification to read such a limitation into the section. In fact it is the events of the pst that would furnish material to infer about the tendencies of a person which in turn will have bearing on the likelihood of a similar conduct on his part in the present or immediate future. To quote the words of Venkatarama Iyer J. in zk.N. Joglekar v. Commr. of Police, AIR 1957 SC.28- “What a person is likely to doe in future can only be a matter of inference from various circumstances, and his past record will be valuable, and often the only record on which it could be made”. The same idea was expressed by the Supreme Court in Ujagar Singh v. State of Punjab, AIR. 1952 SC. 350 thus: “The past conduct or antecedent history of a person can be taken into account when making a detention order, and as a matter of fact, it is largely from prior events showing the tendencies or inclinations of the man that an inference could be drawn whether he is likely even in the future to act in a manner prejudicial to the maintenance of public order”. No doubt this was said about the conduct of a person in relation to the application of the law of Preventive detention. But this is true as a general Rule. No doubt this was said about the conduct of a person in relation to the application of the law of Preventive detention. But this is true as a general Rule. Justice Chinnappa Reddy, then functioning as a Judge of the High Court of Andhra Pradesh, expressed the same idea in relation to proceedings under S.107 of the Code of criminal Procedure thus: “It is true that S.107 is not punitive in nature, but is intended to prevent apprehended breaches of the peace. But that does not mean that past violent activities, especially those of the immediate past cannot be taken into consideration to arrive at the conclusion that there is likelihood of a breach of the peace in the future” (Venkureddy v. State of U.P., 1969 (75) Crl.LJ 685) Justice A.D.V. Reddy, in Mallu Thimma Reddy v. State of A.P., 1972 MLJ (Crl) 635 said thus: “A proceeding under S.107, Criminal Procedure Code is to prevent future breach of the peace and events of the recent past are to be taken as a guide for coming to the conclusion whether any breach of the peace is likely to recur in the near future”. 13. Regard being bad to the object of S.107 of the Code and Particularly the fact that it is not intended as a punitive action but preventive even where punitive action is taken preventive action may be called for if the character of the information is such that the Magistrate would be justified in acting on such information. As a rule of prudence it may be said that information about events which are the subject matter of pending prosecutions may not by themselves be relied on by the Magistrate as information sufficient to warrant an order under S.107 of the Code. Ultimately it would be for the Magistrate to consider whether on an overall consideration of the facts available to him by way of information he could form the opinion that the person against whom he was proposing to take action under S.107 was likely to cause imminent breach of the peace or disturb the public tranquility. We make it clear that to the extent the decision of this court in Chirukandath Chandrasekharan v. State of Kerala, 1970 KLJ 61 can be read as prohibiting reliance on such information in categorical terms, we do not agree. We make it clear that to the extent the decision of this court in Chirukandath Chandrasekharan v. State of Kerala, 1970 KLJ 61 can be read as prohibiting reliance on such information in categorical terms, we do not agree. As we stated earlier, had it been stated as a rule of prudence or caution we may not have seen reason to disagree with it. In the result we answer the question referred to us as above and we take up the cases in which this question appears for disposal on the basis of facts of each case. 12. This was followed by this Court in the decision reported Girish's Case (cited supra) wherein also it has been mentioned that unless the substance of the information is not stated in the order passed under Section 107 of the Code of Criminal Procedure, the order is bad in law. Merely because a crime is registered is not a ground to initiate the proceedings under Sections 107 of the Code of Criminal Procedure. In this case also even in Annexure D report, it is only mentioned that there were three crimes registered against the petitioner namely Crime No.164/07 under Sections 294(b) and 506 read with Section 34 of the Indian Penal Code and that is pending for trial, Crime No.502/2008 under Sections 143, 147, 148, 294 (b), 447, 323, 324 and 149 of the Indian Penal Code and Crime No.1039/09 under Sections 294(b), 341, 324, 302 read with Section 34 of the Indian Penal Code which is now pending as C.P.No.134/10 in trial. The counsel for the petitioner submitted that in all these cases the petitioner is on bail. In the first case namely Crime No.164/2007, he was tried and acquitted by the court. In the second a case namely Crime No.502/2008, it was taken on file as C.C.No.1768/08 and in that case after trial the case was posted for judgment. The murder case is now ripe for trial. So except these, there is nothing mentioned even in Annexure-D report that after the registration of these cases, the petitioner had involved in any other criminal activity for which any new crimes have been registered. The murder case is now ripe for trial. So except these, there is nothing mentioned even in Annexure-D report that after the registration of these cases, the petitioner had involved in any other criminal activity for which any new crimes have been registered. So under the circumstances, there is some force in the submission made by the counsel for the petitioner that there is no valid information or substance furnished by the Sub Inspector of Police while sending Annexure-D report so as to enable the Sub Divisional Magistrate to initiate proceedings against the petitioner under Section 107 of the Code of Criminal Procedure. So in the absence of any valid reason stated in Annexure-D report and also in the absence of any particulars mentioned in Annexure-A order which satisfied the second respondent for initiating proceedings against the petitioner under Section 107 of the Code of Criminal Procedure or to issue an order under Section 111 of the Code of Criminal Procedure, initiating actions by the Sub Divisional Magistrate against the petitioner under Sections 107 and 111 of the Code is unsustainable in law and the same is liable to be quashed. In the result, the petition is allowed. The proceedings initiated against the petitioner by the second respondent as MC.No.720/13 and further issuance of Annexure-A order under Section 111 of the Code of Criminal Procedure against the petitioner are hereby quashed. Office is directed to communicate this order to the second respondent immediately.