KRISHNAN NAIR Vs. STATE OF KERALA

JUDGEMENT

(1.) IN these cases which came up before me at a time when the strike of the Kerala State Electricity Board Employees was on, I thought I would pass, only interim orders to protect the petitioner lest any observation of the court called for at final disposal may embarass the Board or the government in meeting the situation arising out of the strike. But now that the tension has eased it would be appropriate to consider the case here in an objective background.

(2.) ACTION under S. 107 of the Code of Criminal Procedure was resorted to by the Police against an Assistant Engineer of the Kerala State electricity Board. He happened to be the Vice President of Kerala State electricity Board Workers Association. Naturally he must have been interested in the strike and the object of taking S. 107 proceedings against him was to dissuade him from carrying on such activities. In the report by the police to the Sub Divisional Magistrate (Executive) it was mentioned that if the petitioner was allowed to be free he would carry on his activities vigorously, that he will give a call for such activities, and pursue it with all force. It is said that there has been destruction of public property by those engaged in the strike and the petitioner as an active Vice President of the Association would contribute to the activities of the workers. On this plea the Sub Divisional magistrate was approached to take action under S. 107 of the Code of Criminal procedure. That section contemplates an order requiring any 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 in case the 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 he is of opinion that there is sufficient ground for proceeding. The procedure to be followed is laid down in S. 111 to 116 of the code. The Executive Magistrate is to make an order in writing setting forth the substance of information received by him, 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. Summons has to issue to a person not in custody. If he is in police custody a warrant has to be issued to the officer having custody of such person to produce him in court. The persons concerned may appear pursuant to the summons or they may be produced pursuant to the warrant as the case may be. When they so appear the Magistrate has to act under s. 116 of the Code. He may proceed to inquire into the truth of the information upon which action has been taken and take further evidence if necessary. If finally the Magistrate decides, on the evidence taken by him and the inquiry made by him as to the truth of the information, that there are circumstances warranting action by way of calling for execution of a bond to keep the peace he may direct the party to execute an appropriate bond. If he considers that an interim bond to be operative till the matter is finally decided is necessary he can direct the execution of such bond. He can remand a person to custody only if despite such order to execute interim bond that is not so executed. It goes without saying that there is no power in an Executive Magistrate to remand a person to custody as soon as such person appears before him pursuant to summons issued or is produced before him by the police pursuant to warrant issued to produce a person in custody. That can be done only after an order for execution of interim bond is passed and the person concerned does not execute such a bond.

(3.) IN any case to which attention of this Court is drawn in appropriate proceedings that a person has been served with an order which is not justifiable under S. 116 (3) of the Code this Court would not hesitate to interfere.