Court No. - 49
Case :- APPLICATION U/S 482 No. - 20040 of 2018 Applicant :- Aftar Opposite Party :- State Of Up And Another Counsel for Applicant :- Ganesh Shanker Srivastava Counsel for Opposite Party :- G.A.
Hon'ble Saumitra Dayal Singh,J.
Heard learned counsel for the applicant and learned A.G.A. for the State.
A Chalani Report dated 22.04.2018 was received by S.D.M., Itwa, Siddharth Nagar who on the basis of such report issued a notice under Section 111 Cr.P.C. to the applicant asking him to show cause why he may not be required to furnish personal bonds of Rs. 1,00,000/- 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 applicant has 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 initial signatures on it.
Learned counsel for the applicant has contended that the notice is ambiguous and it suffers from various vagueness, therefore, proceeding on the basis of such notice is a nullity. Learned counsel for the applicant 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 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 applicant.
The impugned notice which has been issued to the applicant, by filling the gaps on printed proforma signed by the S.D.M., Itwa, Siddharth Nagar shows that the applicant was called upon to show cause in the court as to why they should not be ordered to execute a personal bond of Rs. 1,00,000/- and to furnish two sureties, each in the like amount, to keep peace. A perusal of impugned notice shows that no ground is mentioned in this notice to apprehend the 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 and has held such notice as null and void and the proceedings initiated on its basis as not maintainable.
In the case of Madhu Limaye's case (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 Apex 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 S.D.M., Itwa, Siddharth Nagar while issuing the impugned notice 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., Itwa, Siddharth Nagar may be said to be a vague notice which does not fulfill the requirements of Section 111 of Cr.P.C.
This type of 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 the Hon'ble Allahabad High Court has 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 feeling 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 observations made in the cases mentioned herein above the impugned notice which has been issued to applicant by filling in the gaps in printed proforma without following the proper procedure, being wholly illegal and void, is liable to be quashed. Accordingly, the application u/s 482 Cr.P.C. deserves to be allowed.
The application u/s 482 Cr.P.C. is hereby allowed and the impugned notice is quashed.
Order Date :- 31.5.2018 A. Singh