CHIRUKANDATH CHANDRASEKHARAN Vs. STATE OF KERALA

JUDGEMENT

(1.) THE counter petitioners in M.C.13/69 on the file of the Executive First Class Magistrate,Tellicherry are the revision petitioners.Proceedings under S.107 of the Code of Criminal Procedure were taken against them by the learned Magistrate on the report of the Circle Inspector of Police.Tellicherry that they are likely to create a breach of peace and disturb public tranquility within the jurisdiction of the Tellicherry police.The learned Magistrate acting under S.107 has passed a composite order purporting to be falling both under S.112 and 117(3)of the Code.Two points were raised before me against the validity of the order and they are: - (i)The grounds stated for the initiation of the proceedings are irrelevant and in any event insufficient for passing an order either under S.112 or 117(3)of the Code;and (ii)The order is illegal,in that it is in violation of the mandatory provisions of the Code.I think there is considerable force in the contention of the learned 'counsel.

(2.) POINT No.1:The ' sine qua non ' for the institution of a proceeding under S.107 is that the Magistrate shall be of opinion that there is sufficient ground for proceeding.It must appear to the Magistrate that a likelihood of a breach of the peace is imminent.Security in anticipation of a breach of peace cannot be justified.So also mere enmity between two factions is insufficient to sustain an order under S.112.It is not sufficient that bad feelings exist between two sets of people,for starting proceedings under S.107.In the present case grounds are stated in support of the order and they are: (i)On 1469 at about 2330 hrs.counter petitioners 1 to 6 along with other persons numbering about 25,formed themselves into an unlawful assembly carrying deadly weapons near the Jaganath Temple gate at Tellicherry,beat with sticks and stabbed with knife etc.; (ii)On 24469 at about 1700 hrs.at Mallor road,near Mukunda Talkies in Tellicherry amsom counter petitioners 1 to 3 along with others formed themselves into an unlawful assembly armed with deadly weapons and assaulted Kottammal Balakrishnan,Kannachankandy Kadur Jaya Rajan and other Marxist group of the Communist Party and caused injuries;and (iii)Counter petitioners 7 and 8 who are active members of R.S.S.have been organising training for volunteers with long sticks in the premises of Daivatharamadom,Tiruvangad.There is also information that the counter petitioners and others are likely to indulge in acts of violence with a view to retaliate against the Marxists for the offences committed by them on 24469.

(3.) IN the present case as already pointed out,two out of the three accusations have already been made the subject matter of cases under the Indian Penal Code and they are pending in the respective courts.They cannot,therefore,furnish grounds for initiation of proceedings under S.107.The third ground,viz .,that two of the counter petitioners are active members of the R.S.S.and they are organising training for volunteers with sticks,is flimsy and cannot be made the basis for security proceedings under S.107.So long as the R.S.S.is not banned by an order of the government they are entitled to carry on their legitimate activities.The physical training in which they are stated to be indulging is carried on not in any thoroughfare or public place;but within their own premises.The apprehension that they are likely to indulge in acts of violence against the Marxist party is equally frivolous.The police officer has been careful enough to point out that these R.S.S.people are likely to let loose violence only against those Marxists who have committed offences against them.The report would show that on 24 -4 -69 certain offences were committed by the Marxists and by way of retaliation the R.S.S.are likely to hit back;but it is interesting to note that no action has been taken against the Marxists for the offences alleged to have been committed by them.In the circumstances it must be said that ground No.3 is lacking in good faith.The report of the police continues to state that in view of the gravity of the situation the police have taken all possible precautions to avert clashes between the parties and the situation is now well under control.Still the police anticipate a possible breach of the peace if the notification issued under S.21(1)and(11)of Kerala Police Act prohibiting carrying swords,spears etc .,is withdrawn.The report runs: - It is feared that the counter petitioners are likely to indulge in unlawful activities as soon as the notifications are withdrawn and the police patrolling reduced. In other words,the police wants security proceedings to be taken against the counter,petitioners in anticipation of a possible breach of the peace when the notification is withdrawn.Such an apprehension is not what is contemplated in S.107.S.107,on the other hand,contemplates imminent breach of the 'peace. It must appear to the Magistrate that a likelihood of a breach of the peace is imminent,the object of the bond being to prevent an imminent breach of the peace between parties who have quarrelled and to secure peace until the lapse of a reasonable time,allowing them to coo! down,and not to protect a town from any possible misconduct at some future time on the part of notoriously turbulent and dangerous bad characters,who may have kept the town in ferment in past years.There must be something more than a bare possibility,there must be a reasonable likelihood of a breach of the peace.( Queen v.Kidar Nath 7 N.W.P.H.C.R.233 and Queen v Abdool Maq - - 20 WR 57.) In another case a person applied to the police for assistance to protect him whilst distraining the crops of certain ryots for arrears of rent.On this fact being reported to the Magistrate,he required the applicant to furnish security to keep the peace as he thought that any riot which may result from the resistance of the cultivators would be attributable to the applicant;it was,held that the order was illegal,and as the Magistrate had not found that the applicant himself was likely to commit a breach of the peace,he ought not to have held the applicant responsible in anticipation.( vide Sheo Sarn Lal 3 CLR 280)