The High Court of Kerala has reaffirmed that a preliminary order under Section 111 of the Code of Criminal Procedure cannot be issued without a clear, specific, and cogent summary of the information justifying the apprehension of breach of peace. This ruling reinforces the constitutional imperative of procedural fairness and prevents mechanical judicial action that risks arbitrary curtailment of liberty.
Background & Facts
The Dispute
The petitioner, Santhosh Kumar, was served with a preliminary order under Section 111 of the Cr.P.C. by the Sub-Divisional Magistrate, Muvattupuzha, following a police report under Section 107 Cr.P.C. alleging that he was likely to cause a breach of public tranquillity. The order, dated 9 November 2021, merely listed allegations against him without explaining the factual basis or specific conduct that triggered the Magistrate’s apprehension.
Procedural History
- 9 November 2021: Sub-Divisional Magistrate issued Annexure A1 preliminary order under Section 111 Cr.P.C. without stating the substance of information.
- December 2021: Petitioner filed a criminal miscellaneous case challenging the order as violative of statutory mandates and fundamental rights.
- 2 February 2026: High Court heard arguments and delivered judgment.
Relief Sought
The petitioner sought quashing of Annexure A1 on grounds that it failed to comply with the mandatory requirements under Section 111 Cr.P.C., particularly the obligation to disclose the substance of information received. He also contended that the order was issued mechanically, without application of mind.
The Legal Issue
The central question was whether a preliminary order under Section 111 of the Cr.P.C. is valid if it merely recites allegations without disclosing the substance of the information that led the Magistrate to believe a breach of peace is likely.
Arguments Presented
For the Petitioner
The petitioner’s counsel relied on Madhu Limaye v. Sub Divisional Magistrate, Monghyr, Moidu v. State of Kerala, and Ismail Sahib v. State of Kerala to argue that Section 111 Cr.P.C. requires the Magistrate to articulate the specific facts, sources, and reasoning underlying the apprehension of breach of peace. Merely listing charges or summarizing police reports does not satisfy the statutory mandate. The absence of such disclosure renders the order non est, violating the right to fair hearing under Article 21.
For the Respondent
The Public Prosecutor contended that the order was valid as it was based on a police report under Section 107 Cr.P.C., which detailed the petitioner’s alleged conduct. It was argued that the Magistrate’s discretion must be respected and that technical defects should not invalidate proceedings initiated in public interest.
The Court's Analysis
The Court examined the statutory language of Section 111 Cr.P.C., which mandates that any order issued under this provision must "set forth the substance of the information received." The Court emphasized that this is not a mere formality but a substantive safeguard to enable the affected person to prepare a meaningful defence.
"The term 'substance of the information' presupposes a clear and cogent summary of the information that was received by the Magistrate, which led him to the conclusion that a breach of the peace is likely at the behest of the person implicated."
The Court held that Annexure A1 failed this test. It contained only a list of accusations - such as "threatening behaviour," "inciting unrest," and "previous criminal antecedents" - without identifying the source, date, or specific incident that formed the basis of the Magistrate’s apprehension. The order was thus a mechanical reproduction of the police report, devoid of judicial reasoning.
The Court further noted that Section 107 Cr.P.C. proceedings are time-bound and require a fresh application of mind. More than a year had elapsed since the preliminary order, rendering the matter infructuous. The Court clarified that quashing the order does not preclude a fresh, lawful initiation of proceedings under Section 107 Cr.P.C. if warranted by new facts.
The Verdict
The petitioner succeeded. The High Court quashed Annexure A1, holding that a preliminary order under Section 111 Cr.P.C. is invalid if it does not disclose the substance of the information. The Court emphasized that procedural compliance is not optional but a constitutional necessity.
What This Means For Similar Cases
Substance of Information Is Non-Negotiable
- Practitioners must challenge any preliminary order under Section 111 Cr.P.C. that merely parrots police reports or lists vague allegations.
- Courts must scrutinize whether the order contains specific facts, dates, sources, and reasoning - not just conclusions.
- Failure to comply renders the order void ab initio, not merely irregular.
Time-Bound Proceedings Cannot Be Extended by Technicalities
- If a preliminary order under Section 111 Cr.P.C. is not followed by a final order within the statutory period, the matter becomes infructuous.
- Authorities cannot revive stale proceedings by reissuing orders without fresh grounds.
- Practitioners should raise limitation as a substantive defence in such matters.
Judicial Discretion Must Be Reasoned, Not Mechanical
- Magistrates cannot delegate their duty to assess probable cause to police.
- A judicial order must reflect independent application of mind, not administrative rubber-stamping.
- Petitioners may invoke Ismail Sahib and Madhu Limaye to demand reasoned orders in all preventive detention-like proceedings under Cr.P.C.
