Allahabad High Court
Sumit And 5 Others vs State Of U.P. And 2 Others on 23 November, 2020
Author: Suneet Kumar
Bench: Suneet Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 2 Case :- APPLICATION U/S 482 No. - 16957 of 2020 Applicant :- Sumit And 5 Others Opposite Party :- State Of U.P. And 2 Others Counsel for Applicant :- Mohammad Shariq Counsel for Opposite Party :- G.A. Hon'ble Suneet Kumar,J.
Heard learned counsel for the applicants and learned A.G.A. for the State.
A report dated 15.09.2020 was received by Sub Divisional Magistrate (S.D.M.), Loni, Ghaziabad, who on the basis of the report issued notice under Section 111 Cr.P.C. to the applicants asking them to show cause why they may not be required to furnish personal bonds of Rs.10,00,000/- and two sureties in the like amount for maintaining peace and good conduct for a period of six months.
By means of this application u/s 482 Cr.P.C. the applicants have approached this Court praying to quash this notice U/s 107/116 Cr.P.C. on the ground that it is on a cyclostyled proforma with certain blanks which have been filled in with pen and ink by someone and the Magistrate has simply put his signatures on it mechanically without application of mind.
It is contended that police under political and administrative pressure sent an incomplete, one sided, vague and false report, against three persons viz. (i)-Vijay Pal, (ii)-Pawan, (iii)- Anand a 40% disabled person. The external pressure for sending the report is admitted by the police in report dated 31.08.2020 which reads as follows:
"mDr izdj.k esa mPpkf/kdkjhx.k ds Hkh ekSf[kd vkns'k izkIr gks jgs gS fd gR;k ds vfHk;qDrx.k fot; iky] iou] o vkuUn mijksDr dh ikcan /kujkf'k dks c<+k dj de ls de nl&nl yk[k djusa gsrq fjiksVZ izsf"kr djsaA"
It is further contended that an ex-parte challan dated 02.09.2020 under Section 107/ 116 Cr.P.C. under the heading of most important was issued against 6 (six) persons 1- Vijay Pal 2-Pawan, 3-Sannky, 4-Sonu, 5-Sumit and 6-Anand 40% disabled person. It is next contended that it is very much clear that the complaint dated 31.08.2020, police report dated 31.08.2020 and challan dated 02.09.2020 are self contradictory. It transpires that being satisfied with the complaint, police report, challan report, the S.D.M., Ghaziabad, issued the impugned show cause notice under Section 111 Cr.P.C. in the proceedings under Section 107/ 116 Cr.P.C. in Criminal Case No. 1198 C of 2020, State of U.P. vs. Sumit and others, to show cause as to why they are not to be ordered to execute personal bond of 10 Lakh rupees and 2 surities of same amount, of local, prosperous, reputed and respected person to ensure that the applicants maintain peace.
It is further contended that brother of applicant no. 2 was murdered and F.I.R. was lodged by Vijay Pal (applicant no. 2) being case crime no. 231 of 2019 against Veer Singh, Sanju, Sandeep and Pradeep, under Sections 452, 302, 307, 506 IPC and 3(2)(V) SC/ST Act, Police Station Loni, District Ghaziabad, wherein, all the aforesaid applicants are languishing in jail till date; in the present case there is one case from each side, the second case was lodged being case crime no. 320 of 2019, under Sections 120B, 147, 148, 149, 302, 307, 364 IPC, Police Station Loni, District Ghaziabad against the applicants.
Learned counsel for the applicants has contended that the notice is ambiguous and it suffers from vagueness, therefore, proceeding on the basis of such notice is a nullity. Learned counsel for the applicants has vehemently argued that the provisions of Section 107/116 Cr.P.C. have not been complied with by the learned Magistrate while issuing the notice hence in wake of the guidelines laid down by the apex court in the case of Madhu Limaye Vs. S.D.M. Monghyr (2); AIR 1971 SC 2486 case the notice and the entire criminal proceedings be quashed.
Learned A.G.A. has opposed the application, but he has fairly conceded that the impugned notice suffers from vagueness and it is on a printed proforma wherein only by filling in the gaps the reason for issuing notice has been communicated to the applicants.
The impugned notice which has been issued to the applicants, by filling the gaps on printed proforma signed by the S.D.M., Loni, Ghaziabad, shows that the applicants were called upon to show cause as to why they should not be ordered to execute a personal bond and to furnish two sureties, each in the like amount, to maintain peace. A perusal of impugned notice shows that no ground is mentioned in this notice to apprehend breach of peace which is a mandatory requirement of Section 111 Cr.P.C.
Section 111 Cr.P.C. provides :-
"When a Magistrate acting under section 107, section 108, section 109 or section 110, deems it necessary to require any person to show cause under such section, he shall make an order in writing, setting forth the substance of the information received, 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."
In Shiv Kant Tripathi Versus State of U.P. & Anr. 2005(3) JIC 477 (All), this Court by allowing the application under section 482 Cr.P.C. has quashed the notice served on printed proforma, held such notice null and void and the proceedings initiated on its basis as not maintainable.
In the case of Madhu Limaye's (supra), the apex court, in para 36 of its judgment has observed as under:-
"We have seen the provisions of Sec. 107. That section says that action is to be taken in the manner here-in-after provided and this clearly indicates 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 curtained according to its own procedure and not according to the whim of the Magistrate concerned. It behoves us, therefore, to emphasize 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 general public."
In this very case the Court went on to observe in Para 37 as under:-
"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 tranquility 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."
In the present case, the learned Sub-Divisional Magistrate while issuing the impugned notice dated 16.09.2020 has thrown the mandatory provisions of Section 111 of the Code to the winds and has prepared a printed proforma. The learned Magistrate has also not recorded his opinion that there existed sufficient ground to take action under the provisions of Section 107 of the Code.
In the impugned notice, the pith and substance of the information received is not given which could have formed the basis for apprehending breach of peace. Therefore, the impugned notice issued by the learned S.D.M. Loni, Ghaziabad, may be said to be a vague notice which does not fulfill the requirements of Section 111 of Cr.P.C.
Such a notice has been held to be illegal by this Court in the case of State Versus Baleshwar and others decided on 8-8-2008 and reported in (63) ACC page 374 wherein it is held as under:-
"making an order u/s 111 of the code is not an idle formality. It should be clear on the face of the order u/s 111 Cr.P.C. that the order has been passed after application of judicial mind. If no substance of information is given in the order u/s 111, the person against whom the order has been made will remain in confusion. Section 114 of the Code provides that the summons or warrants shall be accompanied by a copy of the order made u/s 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 u/s 104 Cr.P.C. are drawn. It should be borne in mind that the proceedings u/s 107/116 of the Code sometimes cause irreparable loss and unnecessary harassment to the public, who run to the court at the costs of their own vacations of life. Unless it is absolutely necessary proceedings u/s 107/116 Cr.P.C. should not be resorted to. Experience tells that proceedings like the one u/s 107/116 of the Code are conducted in a most lethargic and lackadaisical manner by the learned Executive Magistrate causing harassment to public beyond measures."
This Court in the case of Mohan Lal Versus State of U.P., 1977 ACC page 333 has expressed its of dissatisfaction as under:-
"there are series of decisions in which the same principles have been repeated again and again. It is distressing to note that the repeated pronouncement of this Court and also the perception made by the Supreme Court have fallen on the deaf ears of our Executive Magistrates, who still treat the making of order u/s 111 an idle formality."
In view of the law and the reasons, I am of the opinion that the impugned notice, which has been issued mechanically in printed proforma without spelling out the substance of facts to be met by the applicants, being wholly illegal and void, is liable to be quashed.
Accordingly, the application u/s 482 Cr.P.C. deserves to be allowed.
The order shall not preclude the S.D.M., Loni, Ghaziabad to issue fresh notice in accordance with law.
Order Date :- 23.11.2020 Mukesh Kr.