Research › Search › Judgment

Allahabad High Court · body

2022 DIGILAW 161 (ALL)

Rajendra Prasad Patel v. State Of U. P.

2022-02-07

MANJU RANI CHAUHAN

body2022
JUDGMENT : 1. Heard Mr. Piyush Kant Vishwakarma, learned counsel for the applicants and Mr. Pankaj Srivastava, learned A.G.A. for the State as well as perused the entire material available on record. 2. This application under Section 482 Cr.P.C. has been filed to quash the notice dated 22nd December, 2021 under Sections 107/116/111 Cr.P.C. issued against the applicants and the consequential orders passed by the Sub-Divisional Magistrate, Mariahu, District-Jaunpur. 3. Relevant facts of the present case are that the dispute relates to land bearing new Araji No. 198A (old Gata/Araji No. 215/2) area 20 decimal situated in Village-Ahirauli, Paragana and Tehsil Mariahu, District-Jaunpur, which has been old Abadi of applicants' grandfather, namely, Bhagi in which kachcha house of the applicants' grandfather was built and trees were also planted by the grandfather of the applicant over the same land. During consolidation operation in the aforesaid village, the said land being Abadi land (residential land) was out of consolidation proceeding and was recorded in the name of descendants of Bhagi i.e. grandfather of the applicants, namely, Ramshiroman and others, which is evident from C.H. Form 41 and 45, a copy of which has been enclosed as Annexure-1 to the affidavit accompanying the present applicant. 4. When, Rama Shankar Patel and Ram Achal Patel, sons of Jharihag resident of the same village, who are not descendants of Bhagi, were cutting trees and making pakka house over the said land, the applicants objected, due to which, the Police of Police Station-Mariyahu, District-Jaunpur has submitted a Chalani report dated 26th November, 2021 under Sections 107/116 Cr.P.C. against the applicants, a copy of which has been enclosed as Annexure-3 to the affidavit accompanying the present application. By means of Chalani report dated 26th November, 2021, it was stated that due to dispute with respect to Abadi land, there is litigation between the parties, who may commit an act, which will lead to disturbance. As a result, there is every possibility of breach of peace on account of the applicants. 5. Upon the aforesaid Chalani report, a Case No. 5164 was registered and the Sub-Divisional Magistrate, Mariahu, Jaunpur issued impugned notice dated 22nd December, 2021 under Section 107/116/111 Cr.P.C. requiring the applicants to show cause as to why they would not be directed to furnish personal bonds of Rs. 50,000/-each for maintaining peace for a period of six months. 6. 5. Upon the aforesaid Chalani report, a Case No. 5164 was registered and the Sub-Divisional Magistrate, Mariahu, Jaunpur issued impugned notice dated 22nd December, 2021 under Section 107/116/111 Cr.P.C. requiring the applicants to show cause as to why they would not be directed to furnish personal bonds of Rs. 50,000/-each for maintaining peace for a period of six months. 6. The objection raised by counsel for the applicant is that impugned notice has been issued without application of mind and notice is vague and ambiguous. Only on the basis of Chalani report, the Sub-Divisional Magistrate has issued the same and he has not recorded his prima facie satisfaction as to why and how, the applicants may be threat for breach of peace. In the impugned notice, no prima facie direct or indirect evidence has been mentioned on the basis of which it can be said that there is apprehension of breach of peace from the applicants due to dispute of residential land. Learned counsel for the applicants, therefore, submits that proceeding on the basis of said notice is a nullity. Reliance has been placed on a number of decisions of this Court in the case of Ranjeet Kumar and others Vs. State of U.P. and others reported in 2002 (45) ACC 627, wherein it has been held that Upper City Magistrate has no jurisdiction or authority to proceed on the basis of this void notice. 7. Similar view has been expressed in the case of Aurangzeb and others State of U.P. and another reported in 2004 (50) ACC 734. Paragraph of the said decision is quoted below: "It is submitted that notice under challenge is void and proceedings against the applicants are nullity without jurisdiction as substance of information received as required is incomplete, vague and ambiguous and notice is only defective. It is also submitted on report of police on 21.6.2004, a notice under Section 111 Cr.P.C. to initiate proceedings under Sections 107/116 Cr.P.C. is served upon the applicants vide Annexure-1 and the impugned notice does not fulfill the requirements of mandatory provisions of Section 111 Cr.P.C., thus the notice is null and void and the proceedings before the learned Magistrate are a nullity and the impugned notice is on a printed proforma in which gaps are filled and the substances of information received as set forth is wholly incomplete, vague and ambiguous. It is further submitted that the learned Magistrate (S.D.M.) has no jurisdiction or authority to proceed on the basis of this void notice and he has placed reliance in the case of Ranjeet Kumar and others V. State of U.P. and others." 8. Similar view has also been taken by the Single Bench of this Court in the case of Shiv Kant Tripathi Versus State of U.P. & Another reported in 2006 (1) UPCrR. 9. On the cumulative strength of the aforesaid, learned counsel for the applicants submits that the impugned notice cannot be legally sustained and is liable to be quashed 10. Per contra, the learned A.G.A. has opposed the prayer so made on behalf of the applicants but he has fairly conceded that the impugned notice suffers from vagueness. 11. Before coming to the aforesaid submissions advanced by the learned counsel for the applicants, it would e worthwhile to reproduce Sections 107, 111 and 116 Cr.P.C., which read as follows: "107. Security for keeping the peace in other cases. (1) When an Executive Magistrate receives information that any person is likely to commit a breach of the peace or disturb the public tranquillity or to do any wrongful act that may probably occasion a breach of the peace or disturb the public tranquillity and is of opinion that there is sufficient ground for proceeding, he may, in the manner hereinafter provided, require such person to show cause why he should not be ordered to execute a bond, 1 with or without sureties,] for keeping the peace for such period, not exceeding one year, as the Magistrate thinks fit. (2) Proceedings under this section may be taken before any Executive Magistrate when either the place where the breach of the peace or disturbance is apprehended is within his local jurisdiction or there is within such jurisdiction a person who is likely to commit a breach of the peace or disturb the public tranquillity or to do any wrongful act as aforesaid beyond such jurisdiction. 111. Order to be made. 111. Order to be made. When a Magistrate acting under section 107, section 108, section 109 or section 110, deems it necessary to require any person to show cause under such section, he shall make an order in writing, setting forth the substance of the information received, the amount of the bond to be executed, the term for which it is to be in force, and the number, character and class of sureties (if any) required. 116. Inquiry as to truth of information. (1) When an order under section Ill has been read or explained under section 112 to a person present in Court, or when any person appears or is brought before a Magistrate in compliance with, or in execution of, a summons or warrant, issued under section 113, the Magistrate shall proceed to inquire into the truth of the information upon which action has been taken, and to take such further evidence as may appear necessary. (2) Such inquiry shall be made, as nearly as may be practicable, in the manner hereinafter prescribed for conducting trial and recording evidence in summons- cases. (3) After the commencement, and before the completion, of the inquiry under sub-section (1), the Magistrate, if he considers that immediate measures are necessary for the prevention of a breach of the peace or disturbance of the public tranquillity or the commission of any offence or for the public safety, may, for reasons to be recorded in writing, direct the person in respect of whom the order under section 111 has been made to execute a bond, with or without sureties, for keeping the peace or maintaining good behaviour until the conclusion of the inquiry, and may detain him in custody until such bond is executed or, in default of execution, until the inquiry is concluded: Provided that- (a) no person against whom proceedings are not being taken under section 108, section 109, or section 110 shall be directed to execute a bond for maintaining good behaviour; (b) the conditions of such bond, whether as to the amount thereof or as to the provision of sureties or the number thereof or the pecuniary extent of their liability, shall not be more onerous than those specified in the order under section 111. (4) For the purposes of this section the fact that a person is an habitual offender or is so desperate and dangerous as to render his being at large without security hazardous to the community may be proved by evidence of general repute or otherwise. (5) Where two or more persons have been associated together in the matter under inquiry, they may be dealt with in the same or separate inquiries as the Magistrate shall think just. (6) The inquiry under this section shall be completed within a period of six months from the date of its commencement, and if such inquiry is not so completed, the proceedings under this Chapter shall, on the expiry of the said period, stand terminated unless, for special reasons to be recorded in writing, the Magistrate otherwise directs: Provided that where any person has been kept in detention pending such inquiry, the proceeding against that person, unless terminated earlier, shall stand terminated on the expiry of a period of six months of such detention. (7) Where any direction is made under sub-section (6) permitting the continuance of proceedings, the Sessions Judge may, on an application made to him by the aggrieved party, vacate such direction if he is satisfied that it was not based on any special reason or was perverse." 12. I have gone through the records of the present applicants, perused Sections 107, 111 and 116 Cr.P.C. and considered the submissions made by the learned counsel for the applicants. I find substance in the submissions made by the learned counsel for the applicants that such notice like the present one suffers from vagueness. 13. It is settled proposition of law that even in administrative matters, the reasons should be recorded as it is incumbent upon the authorities to pass a speaking and reasoned order. In Kumari Shrilekha Vidyarthi & Ors. Vs. State of U.P. & Ors., reported in AIR 1991 SC 537 , the Apex Court has observed as under:- "Every such action may be informed by reason and if follows that an act un-informed by reason is arbitrary, the rule of law contemplates governance by law and not by humour, whim or caprice of the men to whom the governance is entrusted for the time being. It is the trite law that "be you ever so high, the laws are above you." This is what a man in power must remember always." 14. In the case of Madhu Limaye Vs. S.D.M. Monghyr (2) reported in AIR 1971 SC 2486 , the Apex Court, in para 36 of its judgment has observed as under:- "We have seen the provisions of Sec. 107. That section says that action is to be taken in the manner here-in-after 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 curtained according to its own procedure and not according to the whim of the Magistrate concerned. It behoves us, therefore, to emphasize 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 general public." 15. In this very case the Apex Court went on to observe in Para 37 as under:- "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 tranquility 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." 16. In the present case, the learned Sub-Divisional Magistrate, while issuing the impugned notice dated 22nd December, 2021 has not complied with the mandatory provisions, as enumerated in Section 111 Cr.P.C. and has issued the notice in a printed proforma and has only filled the dates therein. In the present case, the learned Sub-Divisional Magistrate, while issuing the impugned notice dated 22nd December, 2021 has not complied with the mandatory provisions, as enumerated in Section 111 Cr.P.C. and has issued the notice in a printed proforma and has only filled the dates therein. The learned Sub-Divisional Magistrate has also not recorded his opinion that there exists sufficient ground to take action under the provisions of Section 107 Cr.P.C. In the impugned notice, the details of the information received are not given, which could have formed the basis for apprehending breach of peace, therefore, the notice issued by the Sub-Divisional Magistrate, Jaunpur dated 22nd December, 2021 may be set aside to be a vague notice, which does not fulfill the requirement of Sections 111 Cr.P.C. 17. This Court in the case of Mohan Lal Versus State of U.P., reported in 1977 ACC page 333 has expressed its dissatisfaction as under:- "there are 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 and 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 u/s 111 an idle formality." 18. In view of the law and the reasons, this Court is of the opinion that the impugned notice u/s 107/116 Cr.P.C which has been issued by the Sub-Divisional Magistrate dated 22nd December, 2021 mechanically in printed proforma without spelling out the substance of facts to be met by the applicants, being wholly illegal and void, is liable to be quashed. 19. Accordingly, the present application under Section 482 Cr.P.C. deserved to be allowed. 20. This order shall not preclude the Sub-Divisional Magistrate, Mariahu, Jaunpur to issue fresh notice in accordance with law.