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Himachal Pradesh High Court · body

2022 DIGILAW 289 (HP)

Narinder Pal S/o Sh. Shir Ram v. State Of H. P.

2022-06-14

AJAY MOHAN GOEL

body2022
JUDGMENT : By way of this petition filed under Section 482 of the Code of Criminal Procedure, the petitioner has prayed for the following relief: “It is, therefore, respectfully prayed that after calling for the total record of the Courts below, the petition may kindly be allowed and after setting aside the order dated 22.09.2021, as passed by the Ld. Additional Sessions Judge, Sarkaghat in Criminal Rev. No.03/2019, whereby the Order passed by the learned SubDivisional Magistrate, Dharampur, District Mandi, H.P. dated 11.12.2018, titled as State Versus Narinder Pal & others has been affirmed may kindly be set aside and quashed, in the interest of justice and fair play.” 2. In terms of order dated 15.12.2021, respondent No.2 was proceeded against ex parte and State of Himachal Pradesh was ordered to be deleted as party respondent and Superintendent of Police, Mandi, District Mandi, H.P. was ordered to be impleaded as respondent. 3. The case of the petitioner is that a complaint bearing No. PC/Misc./2018-16-15 dated 16-11-18, PC/MCS/2018-16-14 dated 16-11-18 filed by Sh. Ludar Singh, Village Bhedi, P.O. Sajao Piplu, Tehsil Dharampur, District Mandi, H.P. was received at Police Station Dharampur, District Mandi, H.P. from Superintendent of Police, District Mandi, H.P. The investigation in the complaint was conducted by the Assistant SubInspector and statements of respondent Ludar Singh and his family per the complainant Ludar Singh, when he was in Indian Army, was allotted 10/½ bighas of land by the Army through Government of Himachal Pradesh, after long legal battle. On account of this, the present petitioner was keeping grudge with the complainant and his family. The boundaries of the land of the complainant were being interfered with by the present petitioner who was also using filthy language against the family members of the complainant and threatening to do away with their lives. 4. After investigation was carried out on the said complaint, the Incharge of the Police Station filed a Kalandra under Sections 145/146/107 of the Code of Criminal Procedure before SubDivisional Magistrate, Dharampur, District Mandi, H.P.. This lead to issuance of order of summoning, dated 11.12.2018, by SubDivisional Magistrate. As per the petitioners, this order was bad in law as the same was not inconformity with the statutory provisions. This lead to issuance of order of summoning, dated 11.12.2018, by SubDivisional Magistrate. As per the petitioners, this order was bad in law as the same was not inconformity with the statutory provisions. Feeling aggrieved the petitioner filed a Criminal Revision, i.e. Criminal Revision No.03 of 2019, in the Court of learned Additional Sessions Judge, Sarkaghat, District Mandi, H.P., however, the same was dismissed by the said Court, which has led to the filing of the present petition. 5. Shri J.L. Sharma, learned counsel for the petitioners has submitted that the impugned orders are not sustainable in the eyes of law for the reason that while issuing notice to the petitioners under Section 111 of the Code of Criminal Procedure, learned SubDivisional Magistrate, Dharampur did not follow the statutory provisions as they stand contained in Sections 107, 111 and 112 etc. and for this reason the summoning order dated 11.12.2018 was bad in law. He further submitted that in revision this extremely important aspect of the matter was completely ignored by the learned Revisional Court while dismissing the revision filed by the petitioner and therefore, the order so passed by the learned Revisional Court was also perverse and not sustainable in the eyes of law. 6. On the other hand, learned Additional Advocate General argued that there was no infirmity either in the summoning order or in the order vide which the Revision Petition of the petitioners was dismissed by the learned Court below for the reason that the procedure prescribed was duly followed while issuing the summoning order and the reasons as to why the Criminal Revision filed by the present petitioners was dismissed are clearly borne out from the order. On these basis, he submitted that the petition being devoid of any merit be dismissed. 7. Having heard learned counsel for the parties and having perused the pleadings as well as the documents appended therewith, this Court is of the considered view that there is merit in the present petition and the same deserves to be allowed. 8. Order dated 11.12.2018, vide which summons were issued to the complainant by learned SubDivisional Magistrate, Dharampur, in proceedings under Sections 107/150/145 of the Code of Criminal Procedure is on record as Annexure P3 and the same reads as under: “This is a case U/S 107/150/145 Cr.PC, received throgh Police Station Dharampur Distt. Mandi, H.P. filed by one Sh. 8. Order dated 11.12.2018, vide which summons were issued to the complainant by learned SubDivisional Magistrate, Dharampur, in proceedings under Sections 107/150/145 of the Code of Criminal Procedure is on record as Annexure P3 and the same reads as under: “This is a case U/S 107/150/145 Cr.PC, received throgh Police Station Dharampur Distt. Mandi, H.P. filed by one Sh. Luder Singh S/O Sh. Devi Ram Village Bhedi PO Sajao Piplu Tehsil Dharampur Distt. Mandi (HP). Case be instituted afresh and summon be issued the Complainant. Notice under section 111 Cr.P.C. be issued to the respondent and case to come upon 29-12-18 Announced.” 9. Section 107 of the Code of Criminal Procedure is quoted hereinbelow: “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.” 10. In terms of the said statutory provisions, when an Executive Magistrate receives information that any person is likely to commit a breach or peace or disturb public tranquility etc. and is of the opinion that there is sufficient ground for proceeding, then the Magistrate may, in the manner thereinafter provided, require such person to show cause why he should not be ordered to execute a bond for keeping peace for such period as the Magistrate thinks fit not exceeding one year. The procedure prescribed finds mentioned in Section 111 of the Code of Criminal Procedure and this statutory provision reads as under: “111. The procedure prescribed finds mentioned in Section 111 of the Code of Criminal Procedure and this statutory provision reads as under: “111. Order to be made.-Whena 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.” Thus, it is apparent from the scheme of statute that in terms of Section 111 of the Code of Criminal Procedure, when a Magistrate acting under Sections 107 to 110 of the Code of Criminal Procedure, deems it necessary to require any person to show cause under such Section, then 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. 11. Section 112 of the Code of Criminal Procedure provides that if the person in respect of whom such order is made is present in the Court, then the order shall be read over to him and if he so desires, the substance whereof shall be explained to him. 12. Section 113 of the Code of Criminal Procedure provides that if such person is not present in the Court, then the Magistrate shall issue a summon, requiring him to appear. 13. Section 114 of the Code of Criminal Procedure provides that every summons issued under Section 113 of the Code of Criminal Procedure shall be accompanied by a copy of the order made under Section111 of the Code of Criminal Procedure and such copy shall be delivered by the officer serving or executing such summons to the person served. 14. Section 116 of the Act provides that when an order under Section 111 has been read over and explained in terms of Section 112 or when person appears or is brought before the Magistrate in compliance with or in execution of summons/ warrants issued under Section 113, the Magistrate shall proceed to inquire into the truth of the information, upon which action has been taken etc. 15. 15. The important aspect is that when a Magistrate acting under Sections 107 to 110 of the Code of Criminal Procedure deems it necessary to require any person to show cause, then “he shall make an order in writing, setting forth the substance of the information received, the amount of the bond to be executed etc.” This implies that a show cause under Section 111 of the Code of Criminal Procedure can be issued only after an order is made in writing by the SubDivisional Magistrate, setting forth the substance of the information received etc. In the present case, this is missing. Notice under Section 111 of the Code of Criminal Procedure has been issued to the respondent by the SubDivisional Magistrate without making an order in writing, setting forth the substance of the information received. In fact, the order which was passed while issuing notice under Section 111 of the Code of Criminal Procedure has already been quoted by me hereinabove. Perusal thereof makes it amply clear that before issuance of the summons, no order in writing setting forth the substance of the information received was made by the SubDivisional Magistrate concerned. The above renders the issuance of Notice under Section 111 of the Code of Criminal Procedure as bad in law. 16. Coming to the order passed by the learned Revisional Court, it appears that the learned Court below did not appreciate the contentions of the petitioners therein as well as the statutory provisions of Code of Criminal Procedure in the correct perspective. 17. A perusal of the order demonstrates that after taking note of the provisions of Sections 107, 111 and 116 of the Code of Criminal Procedure, learned Court below held that SubDivisional Magistrate had “established” on the basis of police complaint that offences under Sections 107, 145 and 150 of the Code of Criminal Procedure were made out against the petitioners and then issued notice under Section 111 of the Code of Criminal Procedure to the revision petitioners. Learned Court below also observed that there was no merit in the contention of the petitioners that there was no substance of the information etc. mentioned in the notice, which as per the learned Revisional Court was a matter to be decided on merit after the parties had adduced evidence. 18. Learned Court below also observed that there was no merit in the contention of the petitioners that there was no substance of the information etc. mentioned in the notice, which as per the learned Revisional Court was a matter to be decided on merit after the parties had adduced evidence. 18. These findings in the considered view of this Court are not sustainable in the eyes of law. The findings returned by the learned Revisional Court that the issues raised by the revision petitioners had to be decided on merit after the parties had adduced evidence, are wrong findings for the reason that learned Revisional Court lost sight of the fact that there was no compliance of the provisions of Section 111 of the Code of Criminal Procedure at the time of issuance of notice under the said Section. The relevant record of the case which was produced by the State in compliance to the orders passed by this Court demonstrated that no order was made in writing setting forth the substance of the information received by the SubDivisional Magistrate after he had received the complaint as is envisaged in Section 111 of the Code of Criminal Procedure. This rendered the issuance of summons to the petitioner as bad in law being contrary to the letter and spirit of the provisions of Section 111 of the Code of Criminal Procedure. 19. Thus, in view of what has been observed hereinabove, this petition succeeds and both, the order of summoning issued by learned SubDivisional Magistrate, Dharampur, District Mandi, H.P. dated 11.12.2018 and also the order which has been passed by the Court of Ld. Additional Sessions Judge, Sarkaghat, Distt. Mandi, H.P., in Criminal Revision. No.03/2019, titled as Narinder Pal & others Versus State of H.P. & another, preferred by the petitioners against order dated 11.12.2018 are held to be bad in law. 20. The petition, therefore, is allowed in above terms and order dated 11.12.2018, passed by learned SubDivisional Magistrate, Dharampur, District Mandi, H.P. as well as order dated 22.09.2021, passed by the Court of learned Additional Sessions Judge, Sarkaghat, District Mandi, H.P., in Criminal Revision Petition No.03/2019, titled as Narinder Pal & others Versus State of H.P. & another, are ordered to be quashed and set aside. 21. The petition stands disposed of accordingly, so also the pending miscellaneous applications, if any.