Heard learned counsel for petitioner and learned A.G.A. for the State. The instant petition is filed against impugned order dated 4.12.2009 passed by City Magistrate Saharanpur in case no. 151 of 2009 State Vs. Varun Aggarwal under Section 110 Cr.P.C. whereby notice under Section 111 Cr.P.C., P.S. Mandi , District Saharanpur has been issued against petitioner.
Learned counsel for petitioner submits that notice under Section 111 Cr.P.C. has been issued without considering mandatory provision and taking into consideration the entire substance and general nature of material allegation, only on a printed proforma. Notice has been issued without application of mind. The counsel for petitioner has relied upon the judgment reported in 1993 (30) ACC page 146 Siya Nand Tyagi Vs. State of U.P. in which High Court had quashed the proceedings on account of the reason that initiation of proceedings under Sections 111, 151, 107, 116, 114 Cr.P.C. on the basis of that notice was issued on a printed proforma and there was complete absence of application of mind by the Magistrate concerned. Apart from the aforesaid facts, there are series of decisions in which it has been held by the High Court that provisions contained under Section 111 of the Code are mandatory and non-compliance thereof vitiates the entire proceedings. Learned Magistrate is not expected to depart from procedure to any substantial extent because liberty of the persons is involved and this liberty can only be curtailed after adopting legal procedure and not according to the whims of learned Magistrate concerned. The Magistrate while issuing impugned notice against petitioner has not followed mandatory provisions hence there was non-application of mind. In view of the aforesaid discussion, the impugned notice dated 4.12.2009 under Section 111 Cr.P.C. issued by City Magistrate Saharanpur is hereby quashed. The instant revision is allowed.
However, it will be open to learned Magistrate to issue a fresh notice if found necessary in view of the facts and circumstances of the case in accordance with law.
Order Date :- 6.1.2010 Iss