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2024 DIGILAW 1637 (KER)

AJITH S/O AYYAPPANKUTTY v. STATE OF KERALA

2024-12-11

C.JAYACHANDRAN

body2024
ORDER : 1. The petitioner is a person against whom Annexure-4 Preliminary Order has been passed under Section 107 of the Cr.P.C. Petitioner seeks quashment of Annexure-4 on the premise that the same cannot be sustained in law. 2. Heard the Learned counsel for the petitioner and the learned Senior Public Prosecutor. Perused the records. 3. Learned counsel for the petitioner would submit that the petitioner is the accused in Crime No. 899/2022 of Chalakudy Police Station for offences alleged under Section 376 and 376(2)(n) of the Penal Code. Subsequently, another crime has been registered against the petitioner by the same defacto complainant, alleging that she was threatened by the petitioner. In the subsequent crime bearing no. 231/2023 of Koratty Police Station, the offences alleged are under Section 195 A and 506(1) of the Penal Code. On the basis of the report given by the 2nd respondent (S.H.O. Koratty Police Station), Annexure-4 Preliminary Order has been passed against the petitioner, under Section 111 of the Code of Criminal Procedure. Learned counsel would submit that the parameters to satisfy Section 107 of the Code have not been gone into by the Executive Magistrate, who issued Annexure-4 Order. There was no occasion of any breach of peace, or disturbance to the public tranquility. The two crimes are based on private inter-necine disputes between the petitioner and the defacto complainant. The foundational facts to invoke Section 107 are not satisfied, wherefore, Annexure-4 Order is liable to be quashed, is the submission made. 4. This application was seriously opposed by the learned Senior Public Prosecutor. It was pointed out that Annexure-4 Order under Section 111 only called upon the petitioner to show cause as to why proceedings under Section 107 shall not be initiated against him. The petitioner cannot have any grievance in respect of such an innocuous order. If he is of the opinion that, Section 107 is not liable to be initiated against him, it is for the petitioner to appraise the Executive Magistrate of such fact. It was also submitted by the learned Public Prosecutor that once a report is made by the S.H.O. concerned, it is mandatory on the part of the Magistrate to issue an Order under Section 111 of the Code. Thus, according to the learned Public Prosecutor, there is no necessity to quash Annexure-4 Order. 5. It was also submitted by the learned Public Prosecutor that once a report is made by the S.H.O. concerned, it is mandatory on the part of the Magistrate to issue an Order under Section 111 of the Code. Thus, according to the learned Public Prosecutor, there is no necessity to quash Annexure-4 Order. 5. Having heard the learned counsel appearing for the respective parties, this Court finds substantial merit in this Criminal Miscellaneous Case. Section 107 of the Cr.P.C. is extracted here-below: “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 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 [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 tranquility or to do any wrongful act as aforesaid beyond such jurisdiction.” (Underlined for emphasis) 6. As the heading indicates, Section 107 speaks of ‘security for keeping peace’. Three ingredients can be culled out from Section 107(1). The first is a likelihood to commit breach of peace; the second is a disturbance to the public tranquility; and the third is to do any wrongful act, that may occasion either of the first or second above. This Court cannot endorse the submission made by the learned Public Prosecutor that once a report is made under Section 107, the Executive Magistrate is duty bound to act upon it. Section 107 specifically speaks of the requirement of the Executive Magistrate arriving at an opinion that there is sufficient ground for proceeding under Section 107. This necessarily implies the satisfaction of the Magistrate as regards the requirement for invocation of Section 107 based on its ingredients and parameters. Section 107 specifically speaks of the requirement of the Executive Magistrate arriving at an opinion that there is sufficient ground for proceeding under Section 107. This necessarily implies the satisfaction of the Magistrate as regards the requirement for invocation of Section 107 based on its ingredients and parameters. Secondly, coming to Section 111, where also, an order is liable to be issued only when the Magistrate choose to act under 107, 108, 109 or 110, only when the Magistrate deems it necessary to require any person to show cause. The discretion of the Magistrate is well laid in both the Sections, wherefore, on a mere submission of a report by the S.H.O. the Magistrate is not duty bound to act. Instead, the Magistrate has to satisfy himself that there exists a necessity to invoke the power under Section 107, which necessity should be gauged in the parameters of the possibility of committing a breach of peace, or disturbance of the public tranquility, or doing a wrongful act, which may occasion either of the above two contingencies. In other words, Section 107 is not liable to be invoked, when there is little chance to the breach of the peace or disturbance to the public tranquility, especially in cases where the crimes pertains to individual disputes. In a case where a person -who is involved in several crimes is otherwise posing threat to several members of the society on account of his criminal activities, Section 107 may be profitably invoked. Here, in the instant facts, this Court notice that the allegation against the petitioner is one of rape as against the defacto complainant in the first crime and in the second, it is the same defacto complainant who alleges that the petitioner had threatened her. The given facts, for sure, does not justify invocation of Section 107. In the circumstances, Annexure-4 Preliminary Order cannot be sustained and the same is hereby quashed. 7. Learned counsel for the petitioner would also submit that the petitioner was arrested pursuant to Annexure-4 Order and that a bail bond was executed. The bail bonds, if any, executed by the petitioner, shall stand cancelled. The Criminal Miscellaneous Case is allowed as indicated above.