Allahabad High Court
Dr. Mirza Shahab Shah vs State Of U.P. & Ors. on 4 May, 2017
Bench: Mahendra Dayal
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
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AFR
Court No. - 11
Case :- U/S 482/378/407 No. - 2927 of 2017
Applicant :- Dr. Mirza Shahab Shah
Opposite Party :- State Of U.P. & Ors.
Counsel for Applicant :- Rishad Murtaza,Shadab Waheed
Counsel for Opposite Party :- Govt. Advocate
Hon'ble Mahendra Dayal,J.
1. Heard Shri Rishad Murtaza, learned counsel for the applicant, learned AGA for the State and perused the record.
2. This application under Section 482 Cr.P.C. has been filed for quashing of the proceedings of Case No. 15 of 2017, State Vs. Ashok Kumar Yadav and others, under Sections 107/116 Cr.P.C., relating to Police Station Kotwali Nagar, District Faizabad, pending in the court of City Magistrate, Faizabad. The applicant has also prayed for quashing of the notice dated 17.1.2017, issued by the City Magistrate, Faizabad, under Section 111 Cr.P.C. so far as the same relates to the applicant and the impugned order dated 21.2.2017, passed by the Sessions Judge, Faizabad, in Criminal Revision No. Nil of 2017.
3. It has been submitted by the learned counsel for the applicant that the applicant is an Associate Professor and Head of the Department of Faculty of Commerce in K.S. Saket P.G. College, Ayodhya, District Faizabad. He is serving in the aforesaid college since last about 27 years. He had been associated with several non political social, educational and academic organizations at National and State level. He has also been awarded by the Government Organizations and Semi Government Organizations. He commands very good reputation for his academic and social services. He was nominated as Co-ordinator by the Chief Election Officer, U.P. in the year 2012 and he had been working hard in the same capacity till General Election of 2017.
4. Unfortunately the police of Kotwali city District Faizabad submitted a false challani report under Sections 107/116 Cr.P.C. on 14.1.2017, on the basis of which the City Magistrate, Faizabad issued the impugned notice dated 17.1.2017 directing the applicant to appear before him and show cause as to why he should not be ordered to execute a personal bond of Rs. 1,00,000/- (One Lac) and two sureties of the same amount for keeping good behaviour and not to commit any offence for one year. The applicant preferred a criminal revision before the Sessions Judge but the same was also dismissed vide order dated 21.2.2017.
5. It has been submitted by the learned counsel for the applicant that the provisions of Sections 110 & 111 Cr.P.C. has been enacted for the purpose of maintaining law and order in a particular area. The procedure provided for such proceedings is given in Chapter VIII of the Code of Criminal Procedure. Section 107 of the Code provides that if an Executive Magistrate receives information that any person is likely to commit breach of the peace or disturb public tranquility or to do any wrongful act that may probably occasion a breach of peace and the Magistrate is of the opinion that there is sufficient ground for proceedings, he may require such person to show cause, why he should not be ordered to execute a bond with or without sureties for keeping the peace for such period, not exceeding one year.
6. Section 110. Provides that when an Executive Magistrate receives information that there is within his local jurisdiction a person who is by habit a robber, house-breaker, thief, or forger, or is by habit a receiver of stolen property, or is habitual in committing the offence of kidnapping etc., the Magistrate may in the manner require such person to show cause why he should not an ordered to execute a bond with sureties for his good behaviour for such period not exceeding 3 years.
7. In both the aforesaid cases, the procedure prescribed is that the Magistrate shall make an order in writing stating forthwith 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 required. This order is called preliminary order.
8. The submission of the learned counsel for the applicant is that the notice issued to the applicant does not contain any substance of information which was received by the Magistrate. The applicant has no background of criminal activity. The report sent by the police of Kotwali City Faizabad to the City Magistrate only indicates that the police received an information that the applicant along with others may disturb peace during the assembly elections. The basis of such information is not disclosed in the challani report. Similarly no such substance has been mentioned in the notice.
9. It has been submitted by the learned counsel for the applicant that the notice issued to the applicant under Section 111 Cr.P.C. is absolutely without jurisdiction, as it does not fulfill the requirement of law. The learned counsel for the applicant has referred to a judgment of this Court reported in 2016 (1) U.P. Criminal Ruling page 483 and 2008 (3) U.P. Criminal Ruling page 496.
10. In both the aforesaid cases it has been held that passing of an order under Section 111 Cr.P.C. is not a mere formality. It should be clear on the face of the order that the order has been passed after application of judicial mind. If no substance of the information is mentioned in the order, the person against whom the order has been made, will remain ignorant of the material against him. The person to be proceeded against has to show cause, therefore, he must know the grounds for apprehending a breach of peace or disturbance at his hands. The preliminary order passed under Section 111 Cr.P.C. is the foundation of the jurisdiction and the words "substance" means, the essence of the information received by the Magistrate.
11. In the present case, a perusal of the notice issued to the applicant clearly reveals that no substance of the information received, is mentioned in the order or the notice. Even challani report sent by the police does not disclose, as to how the applicant, who is holding such an important post, would cause breach of peace. In these circumstances, I find that the learned City Magistrate has proceeded on a wrong assumption that the applicant is a person of such reputation that he may disturb law and order during the assembly elections. The learned Magistrate has not recorded his opinion that there exists sufficient grounds to take action against the applicant.
12. Taking into consideration the earlier decisions of this Court and perusal of challani report as well as the notice issued to the applicant, I find that the proceedings have been initiated against the applicant without there being any sufficient material and the notice issued to the applicant is defective and invalid on the basis of which no action can be taken against the applicant.
13. For the reason stated above, the application is allowed and the impugned notice dated 17.1.2017 issued to the applicant under Section 111 Cr.P.C. by the City Magistrate, Faizabad is quashed, so far as it relates to the applicant.
Order Date :- 4.5.2017
Muk
