Court No. - 83
Case :- APPLICATION U/S 482 No. - 12454 of 2021 Applicant :- Fajalurrahman Opposite Party :- State Of U.P. And 3 Others Counsel for Applicant :- Suresh Chandra Dwivedi Counsel for Opposite Party :- G.A.
Hon'ble Rajeev Misra,J.
1. Heard Mr. Suresh Chandra Dwivedi, learned counsel for applicant and learned A.G.A. for State.
2. At the very outset, learned counsel for applicant contends that he be permitted to amend the prayer clause of this application as due to inadvertence the description "under Section 107/117 Cr.P.C." has been wrongly transcribed in place of the description "under Section 107/116 Cr.P.C.".
3. Prayer made for is bonafide. Accordingly, same is allowed.
4. Let necessary amendment in the prayer clause of this application be made by learned counsel for applicant during course of the day.
5. This application under Section 482 Cr.P.C. has been filed challenging notice under Section 111 Cr.P.C. dated 13.03.2021 issued by Additional City Magistrate-III, Varanasi in Case No.649 of 2021, (State Vs. Fajalurrahman) under Sections- 107/116 Cr.P.C., Police Station- Jaitpura, District- Varanasi as well as entire proceedings of afore-mentioned case.
6. Record shows that police of Police Station- Jaitpura, District- Varanasi submitted challan report dated 12.03.2021 against applicant- Fajalurrahman. By means of aforesaid challan report, it was stated that Hon'ble the President of India is to visit Varanasi in near future. Fajalurrahman is a political person, can commit an act which may lead to disturbance. As such, there is every possibility of breach of peace on account of applicant.
7. After aforesaid challan report was forwarded by Station House Officer P.S.- Jaitpura, District- Varanasi, Additional City Magistrate-III, Varanasi issued notice under Section 111 Cr.P.C. dated 13.03.2021 in Case No.649 of 2021, (State Vs. Fajalurrahman), under sections- 107/116 Cr.P.C, Police Station- Jaitpura, District- Varanasi, asking applicant to show-cause as to why he should not be directed to furnish a personal bond of Rs.1 lac and two sureties of the same amount to ensure good conduct of applicant so that there is no breach of peace.
8. Feeling aggrieved by aforesaid notice dated 13.03.2021, applicant- Fajalurrahman has now approached this Court by means of present application under section 482 Cr.P.C.
9. Learned counsel for applicant contends that notice dated 13.03.2021 issued by Additional City Magistrate-III, Varanasi is patently illegal. Same does not contain full particulars nor the full substance of Police Report, on the basis of which aforesaid notice has been issued. It is thus urged that impugned notice does not fullfil the requirement of Section 111 Cr.P.C. For ready reference Section 111 Cr.P.C. is reproduced herein under:-
"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."
10. In support of above submission, Mr. S.C. Dwivedi, learned counsel for applicant has placed reliance upon Baleshwar S/o Ram Saran and Others Vs. State of U.P., 2008 (63) ACC 374, wherein a learned Single Judge has examined the issue as involved in present application. Learned Single Judge, ultimately, concluded as follows in paragraphs 6, 7 and 8 of the judgement:
"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."
11. Accordingly, court has examined the impugned notice dated 13.03.2021, issued by Additional City Magistrate-III, Varanasi, under section 111 Cr.P.C. Upon evaluation, the Court finds that impugned notice contains a bald recital that there is apprehension of commission of such act by applicant which may result in breach of peace. Impugned notice does not contain full substance of information given by concerned Police Officer nor the material on the basis of which Additional City Magistrate-III, Varanasi arrived at his prima-facie satisfaction for issuing the impugned notice. Consequently, concerned Magistrate has not acted judiciously while issuing the impugned notice dated 13.03.2021.
12. In view of above, the impugned notice dated 13.03.2021, issued by Additional City Magistrate-III, Varanasi, cannot be sustained in law and fact. Accordingly, same is liable to be quashed by this Court.
13. Consequently, present application succeeds and is liable to be allowed. It is accordingly allowed. Impugned notice dated 13.03.2021 under Section 111 Cr.P.C. issued by Additional City Magistrate-III, Varanasi in Case No.649 of 2021, (State Vs. Fajalurrahman) under Sections- 107/116 Cr.P.C., Police Station- Jaitpura, District- Varanasi, is quashed. However, Additional City Magistrate-III, Varanasi may issue a fresh notice after undertaking the requisite exercise in the light of observations made herein above.
Order Date :- 27.9.2021 Saif