MOIDU Vs. STATE OF KERALA

JUDGEMENT

(1.) Our learned brother Khalid J. doubted the correctness of the decision in Chirukandath Chandrasekharan v. State of Kerala, 1970 KLJ 61 and expressed the view that the principle enunciated in that decision needs reconsideration. Proceedings initiated under S.107 of the Code of Criminal Procedure were sought to be quashed. The proceedings so taken under S.107 of the Code were attacked in the said petitions under S.482 of the Code of Criminal Procedure on the basis that the proceedings were grounded on accusations which formed the subject matter of cases pending investigation or pending trial in courts. Our learned brother Sadasivan J. in Chandrasekharan's case expressed the view that the incidents involved in such cases cannot be the ground for initiation of proceedings under S.107 of the Code. The correctness of that view was doubted not only by our learned brother Khalid J. but by one of us, Justice Janaki Amma, who had in the order on 26-9-1981 referred a similar question for decision by a Division Bench. That case is still pending and necessarily the question therein will have to be answered in the light of the decision of this Full Bench.

(2.) If our learned brother Sadasivan J. was stating only a rule of prudence we may not have serious disagreement with it. But if the statement by the learned Judge to which we will presently refer is as a rule of law we feel the need for a closer examination.

(3.) Proceedings under S.107 of the Code are taken up by a Magistrate, if, on the basis of information he is of opinion that a person is likely to commit a breach of the peace or disturb the public tranquillity. The apprehension about the conduct of a person must necessarily depend upon incidents or events of the past or at any rate such events or incidents or conduct of the person from whom such act is apprehended roust be the background which may enable a Magistrate to form an opinion about the likelihood of the breach of the peace or disturbance of public tranquillity. A Magistrate may feel that a person who has been committing certain acts is likely to commit it again. It cannot be said that the past conduct of a person is unrelated to the possibility of conducting himself in a particular manner in the present or immediate future. If the past conduct alleged is the subject of investigation by the police or trial in a court could it be said that for that reason it should not furnish a basis for initiating action under S.107 of the Code. Sri. T. V. Prabhakaran, appearing for some of the petitioners in these cases contends for the extreme position that past conduct irrespective of whether it is the subject of an investigation or trial is irrelevant as in the language of S.107 no reference is made to such conduct as the basis for action under that Section. The position taken up by the Public Prosecutor is the other extreme, that, even incidents which are the subject matter of investigation by the police and similar incidents which are the subject of trial in Criminal Courts could be the sole foundation for taking proceedings under S.107 of the Code Whether either of these positions could be said to be correct or whether the answer lies elsewhere has to be examined by us in these cases.