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2010 DIGILAW 1295 (ALL)

DAU DAYAL v. STATE OF U. P.

2010-04-22

SHRI KANT TRIPATHI

body2010
JUDGMENT Hon’ble Shri Kant Tripathi, J.—Heard learned counsel for the applicant and the learned AGA and perused the record. This is a petition under Section 482 of the Code of Criminal Procedure (in short “the Code”) to quash the notice dated 21.12.2009 issued by the respondent No. 2 under Section 111 of the Code. 2. The main ground for challenging the notice is that the learned Executive Magistrate has issued the notice on a printed proforma and did not apply his mind before calling for the applicant to show-cause. 3. The learned counsel for the applicant placed reliance on the case of Siya Nand Tyagi v State of U.P. [1993(3) ACC page 146], the excerpts of which are being reproduced below: “The case presents a sorry state of affairs. The order under Sec. 111 of the Code has been passed on a printed proforma which blanks have been filled in by the learned Magistrate. Judicial orders are to be passed after applying mind to the facts and circumstances of the case. I have gone through the printed order passed under Sec. 111. It is distressing to note that there is no mention of the substance of information received by the learned Sub-Divisional Magistrate on which he took action. Making an order under Sec. 111 of the Code is not an idle formality. It should be clear on the face of the order under Sec. 111 that the order has been passed after application of judicial mind. If no substance of information is given in the order under Sec. 111 the person against whom the order has been made will remain in confusion... “ 4. Similarly he placed reliance on the case of Naresh Kumar Jain and others v State of U.P. [1993(30) ACC page 227], the excerpts of which are also being reproduced below: “.....The order made under Sec. 111 in the present case does not at all disclose the substance of information received by the Magistrate. The order has been passed in a most mechanical manner. It is distressing to note that the repeated pronouncement of this Court as also the pronouncements made by the Supreme Court have fallen on the deaf ears of our Executive Magistrates who still treat the making of order under Sec. 111 an idle formality. The order has been passed in a most mechanical manner. It is distressing to note that the repeated pronouncement of this Court as also the pronouncements made by the Supreme Court have fallen on the deaf ears of our Executive Magistrates who still treat the making of order under Sec. 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 Sec. 111. In modern time the judiciary, like an 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.” Apart, it was also submitted that the notice is vague and does not disclose at all the substance of information received by the Magistrate. 5. A perusal of the impugned notice reveals that there was a dispute between the applicant and one Brijesh Kumar in regard to a plot and due to which there was apprehension of breach of peace. 6. In my opinion, if the apprehension of breach of peace was in regard to the possession of the land, the appropriate course for the Executive Magistrate was to initiate a proceeding under Section 145 of the Code instead of proceeding under Section 107/116 of the Code. The satisfaction recorded by the Magistrate in the notice in regard to the apprehension of breach of peace was already printed and only gaps have been filled up, therefore, the satisfaction was not recorded after application of the mind to the facts of the case. 7. In view of the fact that the notice (annexure 2 to the petition) has been prepared on a printed proforma without application of mind and is silent in regard to the substance of information for initiating the proceedings under Sections 107/116 of the Code, the impugned notice is quashed. It will however be open to the learned Executive Magistrate to issue a fresh notice under Section 111 of the Code after making due compliance of the legal requirements, provided apprehension of breach of peace subsists on the date of issue of the fresh notice. With the aforesaid observation, the petition is allowed. ————