Allahabad High Court
Ram Ajor And 2 Others vs State Of U.P. And 3 Others on 19 August, 2021
Author: Rajeev Misra
Bench: Rajeev Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 83 Case :- APPLICATION U/S 482 No. - 5412 of 2021 Applicant :- Ram Ajor And 2 Others Opposite Party :- State Of U.P. And 3 Others Counsel for Applicant :- Shiv Ram Dubey,Uma Nath Pandey Counsel for Opposite Party :- G.A. Hon'ble Rajeev Misra,J.
Heard Mr. Uma Nath Pandey, learned counsel for applicants and learned A.G.A. for State.
This application under section 482 Cr.P.C. has been filed challenging notice dated 13.11.2020, issued by Sub Divisional Magistrate, Harraiya, District Basti under section 111 Cr.P.C in Case No. 10175/9 of 2020 (State of U.P. Vs. Ram Bahore and Others) under sections 107/116, Cr.P.C. P.S. Chhawani, District-Basti.
Record shows that Police of Police Station, Chhawani, Basti, submitted a chalan report dated 26.10.2020 against Ram Bahore, Sarju Prasad, Lal Chand, Chavi Lal and Ram Ajor, whereby they have been challaned under sections 107, 116 Cr.P.C. Aforesaid report has been brought on record (as Annexure-1 to the affidavit).
Perusal of aforesaid report goes to show that Station House Officer of Police Station Chhawani, Basti has expressed his anxiety that there is dispute between parties regarding possession of certain land and on account of pending proceedings in respect thereof.
After aforesaid report was forwarded by S.H.O. P.S. Chhawani, District Basti, Sub Divisional Magistrate, Harraiya issued notice dated 13.11.2020 under section 111 Cr.P.C asking applicants to show cause why order under section 107/116 be now passed against them.
Feeling aggrieved by aforesaid notice dated 13.11.2020, applicants have now approached this Court by means of present application under section 482 Cr.P.C.
Learned counsel for applicant contends that the notice dated 13.11.2020, issued by Sub Divisional Magistrate is patently illegal. Same does not contain full particulars nor the full substance on the basis of which aforesaid notice has been issued. Concerned Magistrate has not recorded his personal satisfaction in the impugned notice warrnting initiation of proceedings under section 107/116 Cr.P.C. It is thus urged that impugned notice does not fulfill the requirement of Section 111 Cr.P.C. It is further contended that Original Suit No. 1236 of 2018 (Dayaram and 3 others Vs. Uday Pratap Singh) has been filed in which applicants are plaintiffs. Along with plaint, an application for temporary injunction was also filed which is pending consideration. Consequently, on account of pendency of aforesaid, proceedings under section 107/116 Cr.P.C. could not have been initiated.
In support of above, reliance is placed upon Baleshwar S/o Ram Saran and Others Vs. State of U.P., 2008 (63) ACC 374, wherein a learned Single Judge has observed as follows in paragraphs 6, 7 and 8:
"6. Having given my thoughtful consideration to the rival submissions made by parties Counsel and after going the impugned notice, I find force in the aforesaid contention of the learned Counsel for the applicants that the impugned notice is wholly illegal and void. Annexure 1 is the copy of the impugned notice, which was issued by SDM Mawana (Meerut) to the applicants, whereby they were called upon to appear on 10.12.2004 and show cause as to why they be not ordered to execute a personal bond for Rs. 30,000/- and furnish two sureties each in the like amount to keep peace for a period of one year. In this notice it is only mentioned by the SDM concerned that he is satisfied with the report of S.O. of P.S. Mawana that due to old litigation, there is enmity between the parties, due to which there is likelihood of the breach of peace. It is not mentioned in this notice that what type of litigation is going on between the parties and in which Court the said litigation is pending. Number of the case and other details of the said litigation have also not been mentioned in the impugned notice. As such the impugned notice issued by the learned SDM Mawana is vague and it does not fulfil the requirements of Section 111, Cr.P.C. This type of notice has been held to be illegal by this Court in the case of Ranjeet Kumar v. State of U.P. (supra).
7. 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, Cr.P.C. 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 confusion. 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, Cr.P.C. are drawn.
8. 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. "
Reference has also been made to the judgement of this Court in Siya Nand Tyagi Vs. State of U.P., 1994 Cri LJ 1298 and also the judgement of Delhi High Court in Tavindar Kumar and another Vs. State, 1990 Cri LJ 40 and also in Madhu Limaye Vs. S.D.M Mongyr, 1971 AIR 2486 Much emphasis has been laid upon the observation made in Mohan Lal Vs. State of U.P. 1977 All Cri C 333, wherein following has been observed:
"There are a series of decisions in which it has been held that the provisions contained in Section 111 of the Code are madndatory and that the non-compliance thereof vitiated the entire proceedings."
Consequently, Court has examined impugned notice dated 13.11.2020, issued by Sub Divisional Magistrate under section 111 Cr.P.C. The Court finds that impugned notice contains a bare recital that there is dispute between parties regarding possession of certain land and on account of pending proceedings regarding same. Impugned notice does not contain full substance of information given by concerned Police Officer nor it reflects the satisfaction of concerned Magistrate. Consequently, concerned Magistrate has not acted judiciously while issuing the impugned notice dated 13.11.2020.
In view of above, the impugned notice dated 13.11.2020, issued by Sub Divisional Magistrate, cannot be sustained. Accordingly, the same is liable to be quashed.
Consequently, present application succeeds and is liable to be allowed. It is accordingly allowed. Impugned notice dated 13.11.2020 is quashed. Sub Divisional Magistrate shall issue a fresh notice after undertaking requisite exercise in the light of observations made herein above. However, it shall be open to concerned S.D.M. to issue a fresh notice in the light of observations made above.
Order Date :- 19.8.2021 Arshad