Allahabad High Court
Siya Nand Tyagi vs State Of U.P. on 20 October, 1992
Equivalent citations: 1994CRILJ1298
ORDER Virendra Saran, J.
1. This application Under Section 482, Cr. P.C. (hereinafter referred to as Code) was filed in the Registry on 29-9-92 and has come up before me today. The application was filed in person but the applicant is not present. I have perused the record and have also heard the learned State counsel who agrees that the application may be finally disposed of today.
2. By means of this application, the applicant has prayed for quashing of the order dated 30-5-92, purporting to be under Section 111 of the Code, passed by Sub-Divisional Magistrate, Modinagar in Criminal Case No. 147 of 1992,under Section 151, 107, 116 of the Code. The case presents a sorry state of affairs. The order under Section 111 of the Code has been passed on a printed pro forma which blanks have been filled in by the learned Magistrate, Judicial orders are to be passed after applying mind to the facts and circumstances of the case. I have gone through the printed order passed under Section 111. It is distressing to note that there is no mention of the substance of information received by the learned Sub-Divisional Magistrate on which he took action. Making an order under Section 111 of the Code is not an idle formality. It should be clear on the face of the order Under Section 111 that the order has been passed after application of judicial mind. If no substance of information is given in the order under Section 111 the person against whom the order has been made will remain in confussion. Section 114 of the Code provides that the summons or warrants shall be accompanied by a copy of the order made under Section 111. This salutary provision has been enshrined in the Code to give notice of the facts and the allegations which are to be met by the person against whom the proceedings under Section 107 are drawn.
3. It is unfortunate that the requirement of Section 107 of the Code that the Executive Magistrate receiving information should be of the opinion that there are sufficient grounds for proceedings under the said section have become a dead letter and are always followed in its breach. It should be borne in mind that the proceedings Under Section 107 / 116 of the Code some times cause irreparable loss and unnecessary harassment to the public who run to the Court at the costs of their own vocations of life. Unless it is absolutely necessary proceedings Under Section 107/116, Cr. P.C. should not be resorted to experience tells that proceedings like the one under Section 107/116 of the Code are conducted in a most lethargic and lackadaisical manner by the learned Executive Magistrate causing harassment to public beyond measure.
4. 107 is aimed at a person who causes reasonable apprehension of conduct likely to lead to apprehension of breach of peace or a disturbance of public tranquillity. It is a preventive measure. Proceedings under Section 107/116 should not be transformed into persecution of innocent persons at the sweet will of the police or other persons acting mala fide.
5. In the case of Mohan Lal v. State of U.P., 1977 All Cri C 333 this Court observed:-
"There are a series of decisions in which it has been held that the provisions contained in Section 111 of the Code are mandatory and that the non-compliance thereof vitiated the entire proceedings."
6. In the case of Madhu Limaye v. S. D. M. Mongyr, , the Apex Court, in para 36 of its judgment observed:
"We have seen the provisions of Section 107. That section says that action is to be taken in the manner here-in-after provided and this clearly indicate that it is not open to a Magistrate in such a case to depart from the procedure to any substantial extent. This is very salutary because the liberty of the person is involved and the law is rightly solicitous that this liberty should only be curtaided according to its own procedure annd not according to the whim of the Magistrate concerned. It behoves us, therefore, to emphasise the safeguards built into the procedure because from there will arise the consideration of the reasonableness of the restrictions in the interest of public order or in the interest of the general public."
In this very case the Apex Court went on the observe in para 37 "Since the person to be proceeded against has to show cause, it is but natural that he must know the grounds for apprehending a breach of the peace or disturbance of the public tranquillity at his hands. Although the section speaks of the `substance of the information' it does not mean the order should not be full. It may not repeat the information bodily but it must give proper notice of what has moved the Magistrate to take the action. This order is the foundation of the jurisdiction and the word 'substance' means the essence of the most important parts of the information."
7. In the present case the learned Sub-Divisional Magistrate has thrown the mandatory provisions of Section 111 of the Code to the winds and has prepared a printed pro forma. The learned Magistrate has also not recorded his opinion that there existed sufficient grounds to take action under the provisions of Section 107 of the Code.
8. In the result, this application is allowed, and the order dated 30-5-1992, passed by the learned Sub-Divisional Magistrate, Modinagar in Criminal Case No. 147 of 1992, Under Section 151 /107/116 of the Code is quashed and the entire proceedings arising out of the said order are quashed.
9. Since the applicant is not present doay, the Registry shall intimate the learned Sub-Divisional Magistrate of this order within two weeks from today.