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Rajasthan High Court · body

1997 DIGILAW 354 (RAJ)

Mazid v. State of Rajasthan

1997-03-11

M.A.A.KHAN

body1997
Honble KHAN, J. – In this case the Addl. Distt. Magistrate I, Jaipur, vide his notice u/S. 111 Cr.P.C. dated 5.8.1993 required the presence of the petitioner before him on 2.9.1993 to show cause why he should not be ordered to execute a bond in the sum of Rs. 10,000/-, with one surety in the like amount, for his good behaviour for a period of one year. The petitioner challenged the issuance of the notice dated 5.8.1993 to him before the learned Sessions Judge, Jaipur City, Jaipur, by preferring a revision application u/S. 397 Cr.P.C. The learned Sessions Judge, however, declined to entertain the application on the ground that as simply a notice u/S. 111 Cr.P.C. had been issued to the petitioner, he may raise his objection against the notice before the learned Magistrate. The order so made by the learned Sessions Judge on 7.2.1994 has been challenged by the petitioner through this petition u/S. 482 Cr.P.C. (2). I heard the learned counsel for the parties and examined the record of the lower Courts. (3). Relying on the decision of this Court in the case of Ramesh Chandra Soni vs. State of Raj. (1), Mr. R.N. Sharma, the learned counsel for the petitioner urged that proceedings u/S. 110 Cr.P.C. cannot be instituted against the petitioner simply on the ground that he was a man of quarrelsome nature and two or three cases, involving alleged use of violance or criminal force by him against others, were instituted. (4). The learned Public Prosecutor, on the other hand, challenged the very maintainability of this petition u/S. 482 Cr.P.C. not only in the wake of issuance of a notice u/S. 111 Cr.P.C. against the petitioner but also on petitioners having exhausted his remedy u/S. 397 Cr.P.C. before the learned Sessions Judge against such a notice. (5). Ordinarily a petitioner u/S. 482 Cr.P.C. is not maintainable if it is noticed that the validity and legality of an order made or action taken has been examined by the Sessions Judge in exercise of his powers u/S. 397 Cr.P.C. as in that case, a petition in the garb of an application u/S. 482 Cr.P.C. would simply be a second revision petition u/S. 397 Cr.P.C. the maintainability of which is barred u/S. 397(3) Cr.P.C. But that position does not absolutely bar the jurisdiction of this Court to exercise its powers u/S. 482 Cr.P.C. in exceptionally appropriate cases. In the instant case the learned Sessions Judge has declined to exercise his powers u/S. 397 Cr.P.C. on the ground that a revision against the issuance of a notice u/S. 111 Cr.P.C. was not maintainable. This seems to me to be an incorrect approach. (6). In the case of Ramesh Chandra Soni (supra) this Court had observed that Sec. 110 Cr.P.C. empowers the Executive Magistrate to initiate the proceedings under it against a person only when he receives information of the nature specified therein. Cls. (a) to (g) of this Section contain the nature of information on which a proceeding u/S. 110 Cr.P.C. is to be initiated. This view of the Court is supported by the decision of the Supreme Court in the case of Gopalchari vs. State of Kerala (2), relied upon by this Court in Ramesh Chandra Sonis case (supra). Proceedings u/S. 110 Cr.P.C. against a citizen are of the nature of criminal proceedings. Institution of such proceedings gives to the citizen a right to challenge them before theauthorities concerned, particularly when it is alleged that initiation and continuance of such proceedings against him amount to abuse of the process of Court. It is true that he may challenge the initiation and continuance of such proceedings against him before the very Court which initiated such proceedings and required him to show cause against the contemplated enquiry u/S. 116 Cr.P.C. and that normal procedure should be ordinarily adopted by the notice but that does not take away his right to approach the higher Courts u/S. 397 or 482 Cr.P.C. in appropriate and exceptional cases. The Court vested with the powers u/ss. 397 or 482 Cr.P.C. as the case may be, may examine the correctness of the order made u/S. 110 Cr.P.C. and justification of the initiation and continuance of such proceedings against him. Since the learned Sessions Judge in the instant case declined to exercise his powers u/S. 397 Cr.P.C. presumably on the ground that issuance of notice u/S. 111 Cr.P.C. and not the very order u/S. 110 Cr.P.C. initiating the proceedings was challenged before him the powers of this Court under either Sec. 397 or Sec. 482 Cr.P.C. are not barred. (7). Since the learned Sessions Judge in the instant case declined to exercise his powers u/S. 397 Cr.P.C. presumably on the ground that issuance of notice u/S. 111 Cr.P.C. and not the very order u/S. 110 Cr.P.C. initiating the proceedings was challenged before him the powers of this Court under either Sec. 397 or Sec. 482 Cr.P.C. are not barred. (7). Being of the above opinion, I would have preferred, treating this petition as an application u/S. 397 Cr.P.C., to transfer it to the learned Sessions Judge for its disposal according to law but looking to the merits of the case and keeping in mind the mandatory provisions of Sec. 116(6), requiring the termination of such proceedings within 6 months of their institution unless such period has been extended as also the views of this Court in the cited case, I have thought it proper to decide the petition on merits here and now. (8). The information communicated by the police to the Executive Magistrate against the petitioner was that he was a man of quarrelsome nature picking up quarrel with others and exhibiting violent temper and behaviour against them. Instances of three cases namely FIR No. 194/87 u/S. 324, 341 IPC P/s. Vidhayak Puri, FIR No. 258/92 u/Ss. 353, 332, 147, 323 IPC & 569 JDA Act and report No. 725 dated 13.7.1993 about his general reputation were cited in the information sent to the Magistrate. Reproducing such information in the first paragraph of his order dated 5.8.1993 the learned Magistrate, in para 2, directed issuance of notice u/S. 111 Cr.P.C. requiring the petitioner to show cause against initiation of proceedings u/S. 110 Cr.P.C. against him. Proceedings u/S. 110 Cr.P.C. were thus initiated on 5.8.1993 and in consequence of initiation of such proceedings notice u/S. 111 Cr.P.C. was directed to be issued. In para 3 it was mentioned that the petitioner had not admitted the truth in the information hence security bond in the amount of Rs. 10,000/- be taken from him for the period of enquiry is continued against him and 2.9.1993 was fixed for informants evidence. In para 4, however, it was mentioned that the petitioner had admitted the truth in the information, hence security, as required by Sec. 111 Cr.P.C. be taken from him. The contents of paras 3 and 4 were, on the face of it, self contradictory. (9). In para 4, however, it was mentioned that the petitioner had admitted the truth in the information, hence security, as required by Sec. 111 Cr.P.C. be taken from him. The contents of paras 3 and 4 were, on the face of it, self contradictory. (9). In the above position of the record of the lower Court it is clear that only two cases registered against the petitioner were relied upon for initiation of procee- dings u/S. 110 Cr.P.C. against him. The registration of those cases, as held in Ramesh Chandras case (supra), did not attract any of the grounds specified in Cls. (a) to (g) of Sec. 110 Cr.P.C. and therefore, initiation of proceedings therein against the petitioner was bad in law and continuation of such proceedings even after the expiry of the period of six months as contemplated u/S. 116(6) Cr.P.C. amount to abuse of the process of the Court of the learned Magistrate. In the result proceedings u/S. 110 Cr.P.C. against the petitioner in this case are quashed and dropped.