The necessity for the magistrate to provide concrete evidence of a threat to peace before issuing orders under Section 107 of the CrPC.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V ST TUESDAY, THE 1 DAY OF AUGUST 2023 / 10TH SRAVANA, 1945 CRL.MC NO. 4341 OF 2023 AGAINST THE ORDER IN MC NO.317/2023 OF SUB DIVISIONAL MAGISTRATE, KOZHIKODE PETITIONER/COUNTER PETITIONER :-

SHAHBAZ, AGED 34 YEARS S/O NISAR AHAMMED, KUTTIYIL THAZHAM HOUSE, MURIYAD, POKUNN, KOZHIKODE DISTRICT -, PIN - 673014 BY ADV T.S.SARATH RESPONDENT/S:

1 STATE OF KERALA REPRESENTED PUBLIC PROCECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN - 682031

2 THE SUB DIVISIONAL MAGISTRATE KOZHIKODE DISTRICT -, PIN - 673001

3 THE STATION HOUSE OFFICER KASABA POLICE STATION, KOZHIKODE DISTRICT -, PIN - 673004 BY SRI.VIPIN NARAYAN, SR.PP THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 01.08.2023, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

ORDER

This petition is filed by the petitioner challenging the order dated

27.04.2023 passed by the Sub Divisional Magistrate Court, Kozhikode invoking the powers under Section 107 of the Code of Criminal Procedure (“the Code” for the sake of brevity).

2. As per the impugned order issued under Section 107 of the Cr.P.C., the learned Sub Divisional Magistrate has called upon the petitioner to attend the Court of the Sub Divisional Magistrate on 03.05.2023 at 11 am to show cause why he shall not be ordered to execute a cash bond for Rs.50,000/ (Rupees Fifty thousand Only) with two solvent sureties for the like sum for keeping the peace for a period of one year under Section 107 of the CrPC.

3. Sri.T.S.Sarath, the learned counsel appearing for the petitioner, submitted that the order passed by the learned Sub Divisional Magistrate cannot be sustained under law. According to the learned counsel, there was absolutely no material before the learned magistrate to show that there was an imminent danger or that there was a likelihood of disturbance of peace and tranquility in the area. It is submitted that one of the crime is under Section 420 of the IPC and the other one is registered for bailable offences. Mere mention of two crimes will not be

sufficient to confer the learned Magistrate with the power to invoke the jurisdiction under Section 107 of the Code, submits the learned counsel. On the other hand, the learned Magistrate was bound to consider the materials placed before him and to satisfy himself that there are sufficient grounds for invoking the provision and to call up the individual to execute a bond as contemplated therein for a fixed period. Finally, it is contended that the preliminary order under Section 107 did not meet the requirement of Section 111 of the Code. Reliance is placed on the Full Bench decision of this Court in Moidu v. State of Kerala , [11982 KHC 139] and the decision of the learned Single Judges in Peethambaran v. State of Kerala , [21980 KLT 876], Santhosh M.V. and Others v. State of Kerala³, and Bejoy

K.V. v. State of Kerala, [42015 (2) KLD 889]

4. The learned Public prosecutor, on the other hand, submitted that based on the report received from the Sub Inspector of Police, the Sub Divisional Magistrate was convinced and satisfied that the petitioner herein posed a real threat to public peace and tranquility. Referring to Section 107 of the Code and to its objective, it is submitted that the provision is not intended as a punitive action but a preventive one, and according to him, the learned Magistrate was well justified in acting on such information.

32014 (2) KLD 519

5. I have considered the submissions advanced and have perused the records.

6. In the order impugned, it is mentioned that a report has been received by the Sub Inspector of Police that the petitioner is involved in Crime No. 109/2023 and Crime No. 482/2022 of the Kasba Police Station. Clearly, Crime No.482/2022 is one involving offence under Section 420 of the IPC. The nature of the crime, the offense involved, and how the petitioner is likely to endanger the peaceful and tranquil atmosphere of the area are also not mentio