It is definitely a matter of immense satisfaction to note that while according paramount priority to the personal liberty of citizens which is ostensibly also a fundamental right of every citizen as enshrined as a basic fundamental tenet under Article 21 of the Constitution, the Kerala High Court in a most learned, laudable, landmark, logical and latest judgment titled Sharmina A vs Sub-Divisional Magistrate & Ors in Crl.MC.No.10742/24 and cited in Neutral Citation No.: 2025:KER:16397 and Crime No.138/2024 of Thalapuzha Police Station, Wayanad against the Order/Judgment dated in MC NO.686 of 2024 of Sub Divisional Magistrate, Perinthalmann that was finally heard on 13.02.2025 and then pronounced finally as recently as on 18.02.2025 has minced absolutely just no words whatsoever to state in no uncertain terms most unequivocally that the liberty of citizens is sacrosanct and cannot be curtailed merely because they have participated in public protests. It also must be highlighted and is really worth paying attention that the Single Judge Bench comprising of Hon’ble Mr Justice VG Arun made the key observation while quashing an order that had directed a woman to execute a bond of Rs 50,000 along with sureties to maintain peace for one year. Very rightly so!
At the very outset, this pertinent, progressive, pragmatic and persuasive judgment authored by the Single Judge Bench comprising of Hon’ble Mr Justice VG Arun of Kerala High Court at Ernakulam sets the ball in motion by first and foremost putting forth in para 1 that, “The challenge in this Crl.M.C is against Annexure A1 preliminary order under Section 130 of the BNSS issued by the Sub Divisional Magistrate, Perinthalmanna requiring the petitioner to show cause why she should not be ordered to execute a bond for Rs.50,000/- with sureties to keep peace for a period of one year. The basis for issuing the order is Annexure A2 report of the Station House Officer, Kolathur Police Station stating that, by repeatedly indulging in illegal activities, petitioner is likely to cause breach of peace and disturb public tranquillity in the locality.”
To put things in perspective, the Bench envisages in para 2 while elaborating on the facts of this leading case that, “Learned counsel for the petitioner submitted that, among the crimes referred in Annexure A2 report, the allegation in Crime No.138 of 2024 registered at Thalapuzha Police Station is that the petitioner, along with 12 other individuals, held a procession to commemorate the death anniversary of a lady named Kavitha, who was associated with a Maoist group. The allegation in Crime No.123 of 2024 registered at the Nilambur Police Station is that on 22.01.2024, between 18:50 and 19:10 hrs, petitioner and other accused belonging to Purogamana Yuvajana Prasthanam organised a demonstration, disrupted traffic and shouted the slogan “In the land of Babari, Justice is only Masjid”. The 3rd crime, registered as per Annexure A5, pertains to a protest by the petitioner and 7 others against an NIA raid in Pandikkad. According to the learned counsel, voicing one’s opinion and expressing dissent is every citizen’s fundamental right and petitioner’s liberty cannot be curtailed, by reason of her participation in demonstrations and voicing her opinion. It is contended that, for invoking the power under Section 126 and compelling a person to execute bond under Section 130 of BNSS, the Sub Divisional Magistrate should reach a prima facie conclusion that the activities of that person is posing imminent threat to the peace and tranquillity in the locality. In support of the contention, reliance is placed on the decisions in Kuldip Singh Chawla and Others v. The State of Bihar [1988 Supreme (Pat) 107], Ashish Khanna v. State of Bihar Through S.D.M. [2007 Supreme (Pat) 1130] and Bijay Sankar Sen and Ors. v. State of Assam and Others [2021 Supreme (Gau) 415].”
Be it noted, the Bench notes in para 3 that, “According to the learned Public Prosecutor, repeated registration of crimes against the petitioner for holding demonstrations and disrupting traffic shows that she is an imminent threat to peace and tranquillity. Hence, petitioner has to be restrained, by requiring her to execute the bond under Section 130 of BNSS.”
Do also note, the Bench then notes in para 4 of this balanced judgment stipulating that, “The contentions advanced give rise to the question whether petitioner’s liberty can be curtailed, by requiring her to execute bond for keeping peace for participating in demonstrations to protest against the policies of the Government. While answering this question, it has to be borne in mind that Article 19 of the Constitution guarantees to every citizen freedom of speech and expression, right to assemble peaceably without arms and to form associations or unions. Indeed, those rights are subject to reasonable restrictions and cannot be exercised contrary to public order, decency, morality or against the sovereignty, integrity and security of the State.”
While citing the relevant and remarkable case laws, the Bench then hastens to add in para 5 of this brilliant judgment propounding that, “A perusal of the impugned order shows that, other than relying on Annexure A2 report, the Sub Divisional Magistrate has not formed an independent opinion that the activities of the petitioner are an imminent threat to the peace and tranquillity in the locality. As held by the Apex Court in Madhu Limaye v. Sub-Divisional Magistrate Monghyr And others [1970 3 SCC 746], even though an order directing execution of bond for preventing breach of peace may have the appearance of an administrative order, in reality it is judicial in character. Therefore, reasons are to be stated in the order passed by the Magistrate. This Court in Santhosh M.V. and Others v. State of Kerala and Others [2014 KHC 522] has also held that, while initiating proceedings under Section 107 Cr.P.C. (126 BNSS), Magistrate must pass a preliminary order, stating nature of information received and the relevant factors which influenced him to form an opinion that the concerned person is likely to cause imminent breach of peace, making it essential to take preventive action against that person.”
Finally and far most significantly, we see that the Bench then encapsulates in para 6 what constitutes the cornerstone of this notable judgment postulating precisely that, “The liberty of a citizen being sacrosanct, cannot be curtailed in a casual manner, by referring to crimes relating to public demonstrations. Mere participation in demonstrations, holding of banners or shouting slogans, cannot be perceived as activities in violation of the reasonable restrictions mentioned in Article 19. Moreover, mere mentioning of the crimes pending against a person will not satisfy the requirement of giving reasons and the apprehended breach of peace must be imminent. The conduct or wrongful acts, which are projected as the reason for issuing the order must have occurred recently and must be relatable to the apprehension of likelihood of breach of peace. In the case at hand, the impugned order does not even indicate the factors that had prompted the Magistrate to form an opinion that, unless prevented, activities of the petitioner will result in breach of peace and disturb public tranquillity. For the aforementioned reasons, the Crl.M.C is allowed. Annexure A1 order and all further proceedings thereon are quashed.”
All said and done, the bottom-line of the aforesaid discussion is that the Single Judge Bench comprising of Hon’ble Mr Justice VG Arun of Kerala High Court at Ernakulam has made it indubitably clear in this noteworthy judgment that the liberty of citizens is sacrosanct and cannot be curtailed merely because they have participated in public protests. It thus certainly merits no reiteration that all the courts in India must definitely must pay heed to what the Kerala High Court has held so very clearly, cogently, commendably and convincingly in this leading case! No denying!
Author Bio
