Allahabad High Court
Santosh Sharma @ Sonu vs State Of U.P. And 2 Others on 21 July, 2022
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Court No. - 84 Case :- APPLICATION U/S 482 No. - 10307 of 2022 Applicant :- Santosh Sharma @ Sonu Opposite Party :- State Of U.P. And 2 Others Counsel for Applicant :- Siddharth Saran Counsel for Opposite Party :- G.A. Hon'ble Sameer Jain,J.
Heard Sri Siddharth Saran, learned counsel for the applicant, Sri Jhamman Ram, learned AGA for the State.
The instant application has been filed by the applicant for quashing of the notice dated 18.2.2022 issued by Sub Divisional Magistrate, Sadar-Basti in Case No.1652 of 2022 under Sections 110/111 Cr.P.C.
The brief facts of the case is that on 6.2.2022 applicant was challaned by Station Officer, Police Station Lalganj, District Basti under Section 110(g) Cr.P.C. on the basis of a case relates to Case Crime No.248 of 2021 under Sections 323, 504 and 506 IPC, registered at Police Station Lalganj, District Basti and on a beat information vide rapat no. 57 time 18.24 hours dated 4.2.2022 and in pursuance of police chalani report dated 6.2.2022, SDM concerned after being satisfied with chalani report of SO Lalaganj dated 6.2.2022 that applicant is habitual offender and his free movement in the society is not in favour of public at large, issued show cause notice to applicant under Sections 110/111 Cr.P.C.
Learned counsel for the applicant submitted that the impugned notice dated 18.2.2022 issued against applicant under Sections 110/111 Cr.P.C. is illegal as it is cryptic one and not even contains material particulars.
Learned counsel further submitted that while issuing notice to applicant under Sections 110/111 Cr.P.C., learned SDM failed to apply his judicial mind and merely on the basis of police chalani report dated 6.2.2022 issued show cause notice against applicant.
Learned counsel for the applicant next submitted that in the impugned notice even the details of cases mentioned in the chalani report against applicant has not been disclosed, therefore, impugned notice was issued even without application of mind.
Learned counsel further submitted that even from the perusal of the chalani report dated 6.2.2022, it reflects that applicant was labelled as habitual offender merely on the basis of a case relates to Case Crime No.248 of 2021 under Sections 323, 504 and 506 IPC and on the basis of a beat information although even the details of the information is not mentioned in the chalani report dated 6.2.2022, therefore, chalani report dated 6.2.2022 itself is illegal and, therefore, the impugned notice dated 18.2.2022 issued by SDM against the applicant pursuant to the chalani report dated 6.2.2022 automatically becomes illegal.
He further submitted that merely on the basis of a case relates to Sections 323,504 and 506 IPC a person cannot be declared desperate and dangerous as mentioned in Section 110(g) Cr.P.c. and, therefore, the impugned notice dated 18.2.2022 is liable to be quashed.
Per contra, learned AGA submitted that as the impugned notice dated 18.2.2022 is merely a show cause notice, therefore, present application under Section 482 Cr.P.C. is not maintainable.
He further submitted that as police chalani report dated 6.2.2022 clearly shows that applicant is an accused in a case relates to Sections 323, 504 and 506 IPC and also on 4.2.2022 a beat information was received against him, therefore, it cannot be said that applicant is a law abiding citizen and, therefore, if he was challaned by the Police under Section 110(g) Cr.P.C. then there is no illegality and further if pursuant to the chalani report dated 6.2.2022 the SDM concerned after satisfying with the chalani report issued notice under Sections 110/111 Cr.P.C. against applicant than there is no illegality in the notice dated 18.2.2022 as it was the subjective satisfaction of the SDM concerned and if the SDM concerned was satisfied with the chalani report then this Court should not interfere with the subjective satisfaction of the SDM concerned under Section 482 Cr.P.C.
Therefore, learned AGA urged that the present application under Section 482 Cr.P.C. challenging the show cause notice dated 18.2.2022 issued against applicant under Sections 110/111 Cr.P.C. is liable to be dismissed.
I have given my anxious consideration on rival submissions and perused the record of the case.
From the record it reflects that on 6.2.2022 applicant was challaned under Section 110(g) Cr.P.C. by SO, Police Station Lalganj, District Basti. The chalani report dated 6.2.2022 shows that on the basis of a case relates to Sections 323, 504 and 506 IPC and on a beat information dated 4.2.2022 applicant was labelled as habitual offender, who is so desperate and dangerous as to render his being at large without security hazardous to the community. The SDM concerned after satisfying with the chalani report dated 6.2.2022 issued show cause notice to applicant under Sections 110/111 Cr.P.C.
As per the impugned notice dated 18.2.2022 SDM was satisfied with the chalani report dated 6.2.2022 that applicant was habitual offender and if no preventive measure was taken against him then it would be hazardous for the community and, therefore, a show cause notice was issued to applicant under Sections 110/111 Cr.P.C.that why he should not be restricted through personal bond and two sureties bond of Rs.Two Lacs for a period of one year.
Aggrieved by the notice dated 18.2.2022 issued by SDM under Sections 110/111 Cr.P.C. applicant filed the present application.
Learned AGA raised a preliminary objection that as the impugned notice dated 18.2.2022 is merely a show cause notice, therefore, application under Section 482 Cr.P.C.filed by applicant is not maintainable.
A similar question arose before five Judges Full Bench of this Court in the case of Bhim Sain Tyagi Vs. State of U.P. and others, reported in 1999 (39) ACC 321 in respect of notice issued under U.P.Control of Goondas Act 1970 (in short the Goondas Act) and after discussing the matter in detail Five Judges Full Bench of this Court observed in para-25 as:-
"25.................... a show cause notice which fails to indicate general nature of material allegations may be challenged and quashed by this Court under Article 226 of the Constitution of India....................."
Thus even a show cause notice can be challenged if it does not disclose the general nature of material allegations, i.e., substance of information received.
As the case of Bhim Sain Tyagi (supra) related to the notice issued under the Goondas Act, therefore, writ petition under Article 226 of the Constitution of India was maintainable but here as the impugned notice was issued under Sections 110/111 Cr.P.C.,i.e, under the provisions of Criminal Procedure Code, therefore, the same may be challenged under Section 482 Cr.P.C. if the impugned notice does not indicate general nature of material allegations, i.e., substance of information received.
In case at hand, the impugned notice dated 18.2.2022 issued under Sections 110/111 Cr.P.C. does not disclose either material particulars or general nature of allegations or substance of information received, therefore, in view of the case of Bhim Sain Tyagi (supra) impugned notice dated 18.2.2022 can be challenged before this Court.
Therefore, preliminary objection raised by learned AGA is unsustainable.
Now, the question arises, whether the impugned notice dated 18.2.2022 issued under Sections 110/111 Cr.P.C. against applicant is in accordance with law.
It is necessary to note Sections 110 and 111 Cr.P.C. which run as follows:
"110. Security for good behaviour from habitual offenders. When an Executive Magistrate receives information that there is within his local jurisdiction a person who-
(a) is by habit a robber, house- breaker, thief, or forger, or,
(b) is by habit a receiver of stolen property knowing the same to have been stolen, or
(c) habitually protects or harbours thieves, or aids in the concealment or disposal of stolen property, or
(d) habitually commits, or attempts to commit, or abets the commission of, the offence of kidnapping, abduction, extortion, cheating or mischief, or any offence punishable under Chapter XII of the Indian Penal Code (45 of 1860 ), or under section 489A, section 489B, section 489C or section 489D of that Code, or
(e) habitually commits, or attempts to commit, or abets the commission of, offences, involving a breach of the peace, or
(f) habitually commits, or attempts to commit, or abets the commission of-
(i) any offence under one or more of the following. Acts, namely:-
(a) the Drugs and Cosmetics Act, 1940 (23 of 1940 );
(b) the Foreign Exchange Regulation Act, 1973 ] (46 of 1973 );
(c) the Employees' Provident Funds and Family Pension Fund] Act, 1952 ;-- of 1952 .
(d) the Prevention of Food Adulteration Act, 1954 (37 of 1954 );
(e) the Essential Commodities Act, 1955 (10 of 1955 );
(f) the Untouchability (Offences) Act, 1955 (22 of 1955 );
(g) the Customs Act, 1962 or (52 of 1962 );
(ii) any offence punishable under any other law providing for the prevention of hoarding or profiteering or of adulteration of food or drugs or of corruption, or
(g) is so desperate and dangerous as to render his being at large without security hazardous to the community, such Magistrate may, in the manner hereinafter provided, require such person to show cause why he should not be ordered to execute a bond, with sureties, for his good behaviour for such period, not exceeding three years, as the Magistrate thinks fit.
111. Order to be made. 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."
(Emphasis supplied) Therefore, from the perusal of Section 110 Cr.P.C. it is crystal clear that it is for habitual offender and as applicant was challaned under Section 110(g) Cr.P.C., therefore, it was necessary that applicant must be so desperate and dangerous as to render his being at large without security hazardous to the community.
In the present matter, from the perusal of the chalani report dated 6.2.2022 it reflects that only one case of Section 323, 504 and 506 IPC and a beat information was noted against applicant and except that not even a single case was mentioned in the chalani report. Therefore, applicant was declared desperate and dangerous and was labled as habitual offender merely on the basis of case relates to Section 323, 504 and 506 IPC and on a beat information dated 4.2.2022 and even details of beat information is not mentioed in chalani report.
It is hard to believe that a person can be challaned under Section 110(g) Cr.P.C. on the basis of such allegation.
A Three Judges Bench of the Apex Court in the case of Gopalanchari Vs. State of Kerela, reported in AIR 1981 SC 674 cautioned as "
"................The constitutional survival of Section 110 certainly depends on its obedience to Article 21, as this Court has expounded. Words of wide import, vague amplitude and far too generalised to be safe in the hands of the Police cannot be constitutionalised in the context of Article 21 unless read down to be as a fair and reasonable legislation with reverence for human rights. A glance at Section 110 shows that only a narrow signification can be attached to the words in Clauses (a) to (g), "by habit a robber....", by habit a receiver of stolen property...", "habitually protects or harbours thieves...", "habitually commits or attempts to commit or abets the commission of...", "is so desperate and dangerous as to render his being at large without security hazardous to the community". These expressions, when they become part of the preventive chapter with potential for deprivation of a man's personal freedom up to a period of three years, must be scrutinised by the court closely and anxiously............................."
Justice Krishna Iyer further observed from the Bench:-
"...................................We have not the slightest doubt that expressions like 'by habit', 'habitual', 'desperate', 'dangerous', 'hazardous' cannot be flung in the face of a man with laxity of semantics. The Court must insist on specificity of facts and be satisfied that one swallow does not make a summer and a consistent course of conduct convincing enough to draw the rigorous inference that by confirmed habit, which is second nature, the counter-petitioner is sure to commit the offences mentioned if he is not kept captive. Preventive sections privative of freedom, if incautiously proved by indolent judicial processes, may do deeper injury......................"
He further observed:-
" .......................To call a man dangerous is itself dangerous; to call a man desperate is to affix a desperate adjective to stigmatise a person as hazardous to the community is itself a judicial hazard unless compulsive testimony carrying credence is abundantly available............................"
And further:-
" .................................we as court, cannot subscribe to any such proposition on mere assertion without copious substantiation............................"
He further added:-
"..................................liberty is a prized value and that is why we have insisted not merely upon the Police having to be careful before marching poor people into court under Section 110 but the Court itself having to be gravely concerned about using preventive provisions against helpless persons, not on formal testimony readily produced to order as we have noticed in a recent case, [Prem Chand v. Union of India, Writ Petition No. 3050 of 1980 decided on 11-11-1980: MANU/SC/0191/1980 : 1981CriLJ5 (SC)], but on convincing testimony of clear and present danger to society."
Thus, from the judgment of Gopalanchari (supra) of the Apex Court, it is abundantly clear that a notice/action under Sections 110/111 Cr.P.C. cannot be issued/taken in casual manner and before taking such steps, the conduct of a person must be convincing enough to draw the rigorous inference that by confirmed habit he is sure to commit the offences mentioned if he is not kept captive.
In the present matter, chalani report only discloses one case against applicant which is also of Sections 323, 504 and 506 IPC and a beat information, therefore, there was no material available before the SDM concerned on the basis of which rigorous inference could be drawn that applicant was of confirmed habit surely to commit such offence for which it is necessary to issue notice under Sections 110/111 Cr.P.C.
Merely on the basis of a case and beat information, it cannot be said that such inference can be drawn that applicant has developed habit to commit such offence for which it is necessary to abide him through security bond for the security of community.
It was the duty of the learned SDM, before adopting preventive measures under Sections 110/111 Cr.P.C. that he must scrutinized the fact closely and anxiously but he failed to do so. Learned SDM without any compulsive evidence labelled the applicant as habitual offender so desperate and dangerous as it render his being at large without security hazardous to the community which was not permissible.
Further, the impugned notice dated 18.2.2022 does not even disclose material particulars of general allegations. As per Section 111 Cr.P.C. it is necessary for the Magistrate concerned while issuing notice under Section 111 Cr.P.C. to give substance of information received by him.
This important ingredient is completely missing in the impugned notice dated 18.2.2022. Section 110 Cr.P.C. clearly says that a Magistrate may, in the manner, here-in-after provided, require such persons to show cause why he should not be ordered to execute a bond with sureties for his good behaviour for such period not exceeding three years as the Magistrate thinks fit. The Phrase "in the manner here-in-after provided" is significant. It means the manner provided under Sections 111 Cr.P.C. must be followed.
The Seven Judges Constitution Bench of the Apex Court in the case of Madhu Limaye Vs. Sub-Divisional Magistrate, Monghyr and others reported in 1970 (3) SCC 746 while discussing the legality of Chapter VIII, of Code of Criminal Procedure, 1898 observed in paragraph -35 as under:
"We have seen the provision of Section 107. That section says that action is to be taken 'in the- manner hereinafter--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 curtailed according to its own procedure and 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 t he interest of public order or in the interest of the general public."
Therefore, the phrase "in the manner here-in-after provided" used under Section 110 Cr.P.C.clearly indicates that the Magistrate cannot depart from procedure prescribed in the manner to any substantial extent and if he fails to do so then action taken by him cannot be approved In the present matter, the substance of information which was received by the SDM concerned has not been mentioned in the impugned notice dated 18.2.2022 therefore, it is apparent that he failed to follow the manner and procedure prescribed under Section 111 Cr.P.C. and therefore, from this angle itself the impugned notice dated 18.2.2022 is unsustainable.
Further, there is another angle too, as substance of information received by the Magistrate through chalani report has not been mentioned in the notice dated 18.2.2022, therefore, this fact itself renders the impugned notice illegal as the impugned notice is a show cause one and therefore, the person against whom notice was issued, he must know the ground for apprehending hazardous to the community.
The Seven Judges Constitution Bench in the case of Madhu Limaye (supra) in paragraph-36 observed as under:
"36.The Procedure begins with Section 112. It requires that the Magistrate acting under Section 107 shall make an order in writing, setting forth the substance of the information received, the amount of the bond, the term for which it is to, be in force and the number, character and class of sureties (if any) required. 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 that 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."
Note: Section 111 Cr.P.C. is pari materia with Section 112 Cr.P.C. of 1898.
Therefore, it is obligatory that the Magistrate while issuing notice under Sections 107, 110 and 111 Cr.P.C. must give proper notice of what has moved him to take the action, i.e., substance of information received must take place in the notice issued by him which is totally missing in the present matter. The result of not mentioning the substance of the information received was of two fold:- (a) applicant was unable to reply the impugned show cause notice dated 18.2.2022 as general nature of material allegations, i.e., substance of information received was missing (b) substance of the information received was the foundation of the notice issued under Sections 110/111 Cr.P.C. as it satisfies the judicial mind of the Magistrate and compel him to take action against the applicant under the said provisions of Cr.P.C., therefore, it means learned SDM failed to apply its judicial mind Therefore, from the above discussion, it is crystal clear that issuance of show cause notice under Sections 110/111 Cr.P.C. is not a mere formality and it is necessary for the Magistrate concerned to follow the procedure prescribed under Sections 110/111 Cr.P.C. at the time of issuing it.
In the case at hand indisputably while issuing notice dated 18.2.2022 the SDM concerned failed to follow the procedure. He failed to note down the substance of the information received by him through police chalani report which was necessary as per Sections 110/111 Cr.P.C.
Further, applicant was labelled as habitual offender and so desperate and dangerous as to render his being at large without security hazardous to the community merely on the basis of a beat information and a case under Sections 323, 504 and 506 IPC, therefore, the approach of SDM Concerned was most casual one and he failed to apply his judicial mind as it is not possible to believe that on the basis of such information a rigorous inference could be drawn against the applicant that he is having such a habit that he will surely commit such offence which is dangerous for the community.
In view of the above and for the reasons stated above, in my considered view, the impugned notice dated 18.2.2022 is illegal and cannot be sustained, therefore, notice dated 18.2.2022 issued by the SDM concerned under Sections 110/111 Cr.P.C. against applicant is hereby quashed.
The application stands allowed.
Order Date :- 21.7.2022 SKM