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2007 DIGILAW 51 (PAT)

Diwakar Singh v. State Of Bihar

2007-01-08

MRIDULA MISHRA

body2007
Judgment 1. Heard counsel for the petitioner and the State. 2. This application has been filed for quashing the order dated 4.8.2006, passed by Sessions Judge, Nalanda at Biharsharif in Cr. Rev. No. 25 of 2006 whereby the revisional court has not quashed the notice issued by the S.D.M., Biharsharif, Nalanda in Case No. 849(M) of 2005 under Sec.110 Cr.P.C. 3. The S.D.M., Nalanda, Biharsharif has issued notice to show cause as to why a proceeding under Sec.110 Cr.P.C. be not initiated and he be not ordered to execute a bond for a period of three years for maintaining good behaviour. 4. From perusal of the impugned order, it is apparent that the S.D.M., Nalanda, Bihar sharif on receiving report from the Officer-in-charge of Bihar RS. has issued notice to the petitioner. In the notice reference of this case has been given which relates to the case instituted in the year 1991, 2002 and 2003. The last case which has been instituted against the petitioner is Bihar PS. Case No. 240 of 2003 relating to offence under Sections 467, 468, 384, 504/34 of the Indian Penal Code. 5. Counsel for the petitioner submits that the show cause notice for initiating proceeding under Sec.110 Cr.P.C. is illegal, without jurisdiction and vague since the specific provision under Sec.111 Cr.P.C. has not been followed. Under Sec.110 Cr.P.C. proceeding can be initiated against any person who is habitual offender and who is regularly committing offence as mentioned in sub-sections a, b, c, d, e, f and g of Sec.110 Cr.RC. It has been stated that after 2003 no F.I.R. has been instituted against the petitioner. So far the last case is concerned petitioner has no knowledge about the institution of the case for the reasons that he has not received any notice in relation to such cases. In this view of the matter he is not an habitual offender and no proceeding under Sec.110 can be initiated against him. So far the last case is concerned petitioner has no knowledge about the institution of the case for the reasons that he has not received any notice in relation to such cases. In this view of the matter he is not an habitual offender and no proceeding under Sec.110 can be initiated against him. Further it has been submitted that the scope of Sec.110 is vague as Sec.111 Cr.P.C. provides that when a Magistrate issues any notice to show cause to a person under Sections 107, 108, 109 and 110 Cr.P.C. the substance of the information received, the amount of the bond to be executed and the terms for which it is to be in force as well as the number, character and class of sureties required be mentioned in the notice. There is no averment regarding the amount of bond which makes the notice vague and against the provisions of Sec.111 Cr.P.C. On these grounds the submission of the petitioner is that the revisional court should have quashed the show cause notice, but it was not done which is completely without jurisdiction. 6. Counsel for the State has submitted that considering the number of cases which are pending against the petitioner, it can very well be said that the petitioner is habitual offender and the show cause notice against the petitioner is proper and valid. 7. However, counsel for the petitioner states that out of total six cases two cases are pending against the petitioner. So far other cases are concerned that has already been dropped. 8. Considering the fact that after 2003 the petitioner has not been named in any of the criminal cases, the notice has been issued in the year 2005 and also that the mandatory provision as mentioned under Sec.111 Cr.P.C. is missing in the show cause notice, the same is liable to be quashed. 9. On perusal of the notice I find that the amount of bond to be executed is missing in the show cause notice. Considering the fact that any person who is asked to execute bond for maintaining good behaviour is itself essential and the mandatory provision must be complied before initiating proceeding under Sec.110 Cr.RC. 10. For the reasons stated about, the order dated 4.8.2006 passed by the Sessions Judge, Nalanda at Biharsharif in Cr. Rev. Considering the fact that any person who is asked to execute bond for maintaining good behaviour is itself essential and the mandatory provision must be complied before initiating proceeding under Sec.110 Cr.RC. 10. For the reasons stated about, the order dated 4.8.2006 passed by the Sessions Judge, Nalanda at Biharsharif in Cr. Rev. No. 25 of 2006 as well as the order dated 28.12.2005 passed by the S.D.M., Biharsharif, Nalanda in Case No. 849(M) of 2005 is quashed and this application is allowed.