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2008 DIGILAW 1568 (ALL)

BALESHWAR v. STATE OF UTTAR PRADESH

2008-08-08

VIJAY KUMAR VERMA

body2008
JUDGMENT Hon’ble Vijay Kumar Verma, J.—By means of this application under Section 482 of the code of Criminal Procedure (in short the ‘Cr.P.C.’), the applicants have challenged the validity of impugned notice dated 2.11.2004 purporting to be issued under Section 111, Cr.P.C. by the S.D.M. Mawana, District Meerut. 2. From the impugned notice (Annexure 1), it transpires that being satisfied with the report dated 2.11.2004 of S.O. P.S. Mawana, the S.D.M. Mawana District Meerut passed an order under Section 111 Cr.P.C. in the proceedings under Section 107/116, Cr.P.C. in Case No. 943/9 of 2004 (State v. Baleshwar and others) and in pursuance of that order impugned notice was issued to the applicants to 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. 3. Heard Sri Manoj Vashisth learned Counsel for the applicants and learned AGA for the State. 4. It was contended by the learned Counsel for the applicants that the impugned notice purported to be issued under Section 111, Cr.P.C. is void, as full substance of the police report has not been mentioned in the notice. For this contention, reliance has been placed on the case of Ranjeet Kumar and others v. State of U.P., 2002(45) ACC 627 and Trijugi Narain Shukla v. State of U.P. and another, 1975 ALR 627. 5. The learned AGA on the other hand, submitted that there is no illegality in the impugned notice and hence interference by this Court in the said notice is not warranted. 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. 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. 9. In the case of Madhu Limaye v. S.D.M. Mongyr, 1971 Cr. 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. 9. In the case of Madhu Limaye v. S.D.M. Mongyr, 1971 Cr. L.J. 1720, the Apex Court, in para 36 of its judgment observed : “We have seen the provisions of Section 107. That section says that action is to be taken in the manner hereinafter 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 curtailed according to its own procedure and not according to the whim of the magistrate concerned. It behoves us, therefore, to emphasise 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 the general public.” 10. In this very case the Apex Court went on to observe as under in para 27 : “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 tranquillity 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.” 11. In the case of Mohan Lal v. State of U.P., 1977 ACC 333, this Court observed that “there are a 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 as 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 under Section 111 an idle formality. It is distressing to note that the repeated pronouncement of this Court as 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 under Section 111 an idle formality. Unfortunately due to lack of clear perception of law the learned VIIIth Additional Sessions Judge, Agra has also put his seal of approval on the invalid order under Section 111. In modern time the judiciary, like any other State Organ, is under scrutiny of the public and rightly so, because in a democracy the people are the ultimate masters of the country and all State organs are meant to serve the people. The lack of vigil on the part of the lower revisional Court is regrettable.” 12. In view of the observations made in the cases mentioned herein-above, the impugned notice being wholly illegal and void is liable to be set-aside. 13. In the result, the application under Section 482, Cr.P.C. is allowed. The order dated 2.11.2004 and impugned notice issued in pursuance thereof as well as the proceedings of case No. 943/9 of 2004 (State v. Baleshwar and others) under Section 107/116, Cr.P.C. pending in the Court of SDM Mawana District Meerut are hereby quashed. ————