Allahabad High Court
Junnu Rain And Ors. vs State Of U.P. And Ors. on 5 April, 2024
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ? Neutral Citation No. - 2024:AHC-LKO:28146 Court No. - 23 Case :- APPLICATION U/S 482 No. - 6450 of 2016 Applicant :- Junnu Rain And Ors. Opposite Party :- State Of U.P. And Ors. Counsel for Applicant :- Chandresh Mani Shukla Counsel for Opposite Party :- Govt. Advocate Hon'ble Ajai Kumar Srivastava-I,J.
1. Case called out in the revised list.
2. No one has appeared for the applicants.
3. Learned Additional Government Advocate for the State of U.P.
4. The instant application pertains to the year 2016. This Court finds it appropriate to proceed to dispose of the instant application on its own merits on the basis of material available on record before this Court.
5. By means of present application filed under Section 482 Cr.P.C., the applicants are challenging notices dated 31.08.2016 and 01.09.2016 issued by the Sub Divisional Magistrate, Mankapur, District Gonda, under Sections 110/112 Cr.P.C.
6. In the present case, notices dated dated 31.08.2016 and 01.09.2016 under Section 110/112 Cr.P.C. have illegally been issued against the applicants by the Sub Divisional Magistrate, Mankapur, District Gonda, wherein it has been mentioned that the applicants are so desperate and dangerous as to render his being at large without security hazardous to the community. It is further submitted that it has not been mentioned in notice that what criminal charges are pending against applicants. The essential ingredients of Sections 110/112 of Cr.P.C. are not made out. The substance of the information has also not been mentioned.
7. The perusal of the notice issued to the applicants under section 110(g) Cr.P.C. would indicate that there is only a mention of case crime no.87/2016, under Sections 147, 148, 323, 452 I.P.C., Police Station Chhapiya, District Gonda against the applicants without any further details, which clearly indicates non application of mind, which, on the face of it, is illegal and arbitrary.
8. Per contra, learned Additional Government Advocate has opposed the application and submitted that notices were sent to the applicants who are desperate and dangerous person, in the habit of using his muscle power against individuals belonging to the weaker section of the society and he is also involved in abusing and assaulting them, due to which there exists an atmosphere of terror in the area, and therefore the conditions prescribed under Section 110(g) Cr.P.C. are fulfilled and there is no infirmity in the same.
9. In the case of Gopalanachari Vs. State of Kerala [AIR 1981 SC 674], Hon'ble the Apex Court observed in para -6 of the judgment as under :-
"6. 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 scrutinized by the court closely and anxiously. The poor are picked up or brought up, habitual witnesses swear away their freedom and courts ritualistically. commit them to prison and Article 21 is for them a freedom under total eclipse in practice. Courts are guardians of human rights. The common man looks upon the trial Court as the protector. The poor and the illiterate, who have hardly the capability to defend themselves, are nevertheless not 'non-persons', the trial Judges must remember. This Court in Hoskot case has laid down the law that a person in prison shall be given legal aid at the expense of the State by the court assigning counsel. In cases under Section 110 of the Code, the exercise is often an idle ritual deprived of reality although a man's liberty is at stake. We direct the Trial Magistrates to discharge their duties, when trying cases under Section 110, with great responsibility and whenever the counter-petitioner is a prisoner give him the facility of being defended by counsel now that Article 21 has been reinforced by Article 39- A. Otherwise the order to bind over will be bad and void. 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. They will have the effect of detention of one who has not been held guilty of a crime and carry with it the judicial imprimatur, to boot. To call a man dangerous is itself dangerous ; to call a man desperate is to affix a desperate adjective to stigmatize a person as hazardous to the community is itself a judicial hazard unless compulsive testimony carrying credence is abundantly available. A sociologist may pardonably take the view that it is the poor man, the man without political clout, the person without economic stamina, who in practice gets caught in the coils of Section 110 of the Code, although, we as court, cannot subscribe to any such proposition on mere assertion without copious substantiation. Even so, the court cannot be unmindful of social realities and be careful to require strict proof when personal liberty may possibly be the causality. After all, the judicial process must not fail functionally as the protector of personal liberty."
10. The Hon'ble Supreme Court in the case of Madhu Limaye Vs. Sub-Divisional Magistrate, Monghyr and others [1970 (3) SCC 746] has observed that "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 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."
11. The necessary ingredients for invoking provisions under Section 110 of Cr.P.C. is that the kind of the information received should be of such a nature that from a bare perusal of the same it can be determined that the person concerned is desperate and dangerous so as to render his being at large without security, hazardous to the community. It is a pre-condition with regard to the material before the police which should be of such kind as envisaged in Section 110(g) of Cr.P.C. so as to enable the Magistrate to invoke the powers under the said section. If the material before the Magistrate does not fulfill the conditions as stated in Section 110(g) of Cr.P.C. then the Magistrate would not have any jurisdiction to even send a notice. In this regard, the issuance of notice is a jurisdictional notice and the Magistrate can derive powers under Section 110(g) Cr.P.C. and proceed further only when the condition laid therein are fulfilled.
12. The foundation of jurisdiction for action under Section 110(g) Cr.P.C. is credible information from a police officer or a private person. Prior to the initiation of proceedings under Section 110 Cr.P.C., information must be given against a person from whom it is sought to take security. The condition precedent of taking security is that the Magistrate should be informed that some person is desperate and dangerous, likely to commit a breach of the peace or disturb the public tranquility or to do some wrongful act that may probably occasion a breach of the peace or disturb the public tranquility. The law provides for a proceedings under Section 110 Cr.P.C., being comments on information received, if in the opinion of the Magistrate there is sufficient ground for a proceeding. The Magistrate has to satisfy himself that a person is likely to commit a breach of the peace or disturb the public tranquility as mentioned in Section 110 Cr.P.C. before taking action.
13. Section 110 Cr.P.C., does not provide a discretion to the Magistrate in the sense that he "may" require the person to show cause. However, when he does exercise that discretion and does decide that he will issue a notice to show cause, then that notice to show cause must be a notice which satisfies the requirements of Section 111 Cr.P.C. Persons who are sought to be bound over to keep the peace should be given an opportunity to show cause and all the procedure laid down in Chapter VIII should be followed. Therefore, an order directing certain persons to enter into a recognizance is not proper and legal, if the parties were not summoned to show cause as to why they should not be required to enter into a bond to keep the peace.
14. For taking action under Section 110(g) Cr.P.C., the manner provided is clearly laid down under Section 111 Cr.P.C. Issue of a preliminary notice to show cause apart from what is provided in Section 111 Cr.P.C. does not appear to be justified. Before the Magistrate two courses are open. If he is satisfied on report on information, he will immediately draw up a proceedings under Section 110 Cr.P.C., but if he is not satisfied, then he will not take any action and leave the matter as it is. The Magistrate has to follow the prescribed procedure, and the Magistrate cannot discover a manner of his own because manner provided is clearly laid down under Section 111 Cr.P.C. If the prescribed manner is not followed, the proceedings cannot be sustained.
15. Further, even the police report clearly indicates absence of any relevant and cogent material to invoke power U/S 110 (g) Cr.P.C.
16. Thus, a perusal of the police report as annexed with the petition also discloses that a finding has been recorded that the petitioner is a person who is desperate and dangerous so as to render him at large without security, hazardous to the community, but in fact the police report should have contained the facts from which such finding could be deciphered. The police report merely concludes and reiterates the provisions given in section 110 (g) Cr.P.C, and not a single instance or any incident has been recorded by him from which it would be concluded that the petitioner is a person who is so desperate and dangerous so as to render his at large being without security hazardous to the community. Needless to say it is the duty of the police to report about the incident or incidents which may enable the Magistrate to recording satisfaction. The conclusion has to be drawn by the Magistrate on the basis of the police report, but where the police report does not indicate any incident against the petitioner with regard to his being desperate of dangerous, it is impossible for the Magistrate to recording a finding with regard, much less being satisfied sufficiently enough so as to issue a notice under section 110(g) Cr.P.C.
17. The upshot of the aforesaid discussions is that in the facts and circumstances of the present case, the material necessary for invocation of jurisdiction under Section 110(g) Cr.P.C. is clearly lacking and therefore, the application deserves to be allowed.
18. In light of the above, notices dated 31.08.2016 and 01.09.2016 issued by the Sub Divisional Magistrate, Mankapur, District Gonda, under Sections 110/112 Cr.P.C., are hereby set aside and the notices are discharged. The present application under Section 482 Cr.P.C. is hereby allowed.
19. However, it would be open to the concerned Magistrate to draw fresh proceeding in accordance with law, if he so chooses.
Order Date :- 5.4.2024 Mahesh