Jitendra Dixit vs State Of U.P. & Others
2021 Latest Caselaw 685 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?Court No. - 29
 

 
Case :- U/S 482/378/407 No. - 2927 of 2020
 

 
Applicant :- Jitendra Dixit
 
Opposite Party :- State Of U.P. & Others
 
Counsel for Applicant :- Pranav Pandey
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Alok Mathur,J.

1. Heard Sri Pranav Pandey, learned counsel for the applicant as well as learned Additional Government Advocate for the State of U.P.

2. By means of present application filed under Section 482 Cr.P.C., the applicant is challenging notice dated 13.10.2020 issued by the Additional District Magistrate, Purwa, Unnao, under Sections 110(g) Cr.P.C.

3. Assailing the aforesaid notice the learned counsel for the applicant submitted that the notice has been issued on printed proforma and in a mechanical manner and that there is no material available against the applicant for initiation of proceedings under Section 110 (g) Cr.P.C. and therefore, it is illegal and arbitrary and liable to be set aside. It has been submitted that with regard to the printed proforma this Court in catena of decisions has ruled that the same is illegal and arbitrary and also in the case ofShiva Nand Tyagi v. State of U.P. reported in 1993 Vol.30 ACC page 146 followed in Criminal Revision No. 38 of 2010 (Kamal Vs. State of U.P.).

4. Learned Additional Government Advocate has opposed the application and submitted that notice was sent to the applicant who is a desperate and dangerous person, in the habit of using his muscle power against individuals belonging to the weaker section of the society and he is also involved in abusing and assaulting them, due to which there exists an atmosphere of terror in the area, and therefore the conditions prescribed under Section 110(g) Cr.P.C. are fulfilled and there is no infirmity in the same.

5. The learned counsel for the applicant has submitted that the perusal of the notice issued to the applicant under section 110(g) Cr.P.C. would indicate that there is only a mention of case number 136/16 registered under section 324, 323, 504 and 506 I.P.C. against the applicant without any further details, on a pre-printed form which clearly indicates non application of mind, which, on the face of it, is illegal and arbitrary.

6. A bare perusal of the said notice would indicate that there is only a mention of police report, but the same has not been annexed along with the notice nor is there any mention about the content of the said police report.

7. The question to be considered by this Court is as to whether in case any complaint is given to the police, can it in itself constitute necessary ingredient sufficient in itself to enable the Magistrate to record a satisfaction to the effect that the person is so desperate and dangerous as to render his being at large, without security, hazardous to the community for breach of peace as per the conditions mentioned in Section 110(g) Cr.P.C. For ready reference, Section 110(g) Cr.P.C. is quoted hereinbelow:-

"Section 110(g) of the Code of Criminal Procedure, 1973 gives power to the Magistrate to seek a personal bond from a person to maintain peace, who is so desperate and dangerous as to render his being at large without security hazardous to the community. Such Magistrate may, require such person to show cause why he should not be ordered to execute a bond, with sureties, for his good behaviour for such period, not exceeding three years, as the Magistrate thinks fit."

8. Heard learned counsel for the parties and perused the record.

9. In the present case, the proceedings against the applicant have been initiated on the basis of Police report, a perusal of which only indicates that the applicant is considered to be a person so desperate and dangerous as to render his being at large, without security, hazardous to the community for breach of peace in the society. It is further observed that no incident has been reported against the applicant from which it may be concluded that the applicant is of such desperate and dangerous nature so as to render his being at large, without security, hazardous to the community for breach of peace of the society. It is the duty of the Police to to have submitted certain factual details in the report and left it to the Magistrate who have considered the entire factual aspect of the matter and to record his satisfaction with regard to the applicant so as to enable him to proceed against the applicant under Section 110(g) Cr.P.C. In this regard it is necessary to consider certain pronouncements of the Hon'ble Apex Court as well as this Court.

10. In the case of Mohan Lal Vs. State of U.P., 1977 All Cri C 333 this Court observed:-

"There are a series of decisions in which it has been held that the provisions contained in Section 111 of the Code are mandatory and that the non-compliance thereof vitiated the entire proceedings."

11. In the case of Madhu Limaye v. S. D. M. Mongyr, 1971 AIR 2486, the Apex Court, in para 36 of its judgment observed:

"36. We have seen the provisions of Section 107. That section says that action is to be taken in the manner here-in-after provided and this clearly indicate 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 behooves 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."

12. In this very case the Apex Court went on to observe in para 37

"37. 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."

13. The necessary ingredients for invoking provisions under Section 110 of Cr.P.C. is that the quality of the information received should be of such a nature that from mere perusal of the same it can be determined that the person concerned is desperate and dangerous so as to render his being at large without security, hazardous to the community. It is a pre-condition with regard to the material before the police which should be of such quality as stated in Section 110(g) of Cr.P.C. so as to lead the Magistrate to invoke the powers under the said section. If the material before the Magistrate does not fulfill the qualifications as stated in Section 110(g) of Cr.P.C. then the Magistrate would not have any jurisdiction to even send a notice. In this regard, the issuance of notice is a jurisdictional notice and the Magistrate can arrogate powers under Section 110(g) Cr.P.C. and proceed further only when the condition therein are fulfilled.

14. The foundation of jurisdiction for action under Section 110(g) Cr.P.C. is credible information from a police officer or a private person. Prior to the initiation of proceedings under Section 110 Cr.P.C., information must be given against a person from whom it is sought to take security. The condition precedent of taking security is that the Magistrate should be informed that some person is desperate and dangerous, likely to commit a breach of the peace or disturb the public tranquility or to do some wrongful act that may probably occasion a breach of the peace or disturb the public tranquility. The law provides for a proceedings under Section 110 Cr.P.C., being comments on information received, if in the opinion of the Magistrate there is sufficient ground for a proceeding. The Magistrate has to satisfy himself that a person is likely to commit a breach of the peace or disturb the public tranquility as mentioned in Section 110 Cr.P.C. before taking action.

15. Section 110 Cr.P.C., does not give a discretion to the Magistrate in the sense that he "may" require the person to show cause. But when he does exercise that discretion and does decide that he will issue a notice to show cause, then that notice to show cause must be a notice which satisfies the requirements of Section 111 Cr.P.C. Persons who are sought to be bound over to keep the peace should be given an opportunity to show cause and all the procedure laid down in Chapter VIII should be followed. Therefore, an order directing certain persons to enter into a recognizance is not proper and legal, if the parties were not summoned to show cause as to why they should not be required to enter into a bond to keep the peace.

16. For taking action under Section 110(g) Cr.P.C., the manner provided is clearly laid down under Section 111 Cr.P.C. Issue of a preliminary notice to show cause apart from what is provided in Section 111 Cr.P.C. does not appear to be justified. Before the Magistrate two courses are open. If he is satisfied on report on information, he will immediately draw up a proceedings under Section 110 Cr.P.C., but if he is not satisfied, then he will not take any action and leave the matter as it is. The Magistrate has to follow the prescribed procedure, and the Magistrate cannot discover a manner of his own because manner provided is clearly laid down under Section 111 Cr.P.C. If the prescribed manner is not followed, the proceedings cannot be sustained.

17. The notice having been issued on printed performa clearly indicates the non-application of mind by the Magistrate while issuing the notice U/S 110(g) Cr.P.C. Further even as per the police report clearly indicates absence of any relevant cogent material to invoke power U/S 110 (g) Cr.P.C.

18. A perusal of the police report as annexed with the petition also discloses that a finding has been recorded that the petitioner is a person who is desperate and dangerous so as to render him at large without security, hazardous to the community, but in fact the police report should have contained the facts from which the finding could be deciphered. The police report merely concludes and reiterates the provisions given in section 110 (g) Cr.P.C, and not a single instance or any incident has been recorded by him from which it would be concluded that the petitioner is a person who is so desperate and dangerous so as to render his at large being without security hazardous to the community. Needless to say it is the duty of the police to report about the incident or incidents which may enable the Magistrate to recording satisfaction. The conclusion has to be drawn by the Magistrate on the basis of the police report, but where the police report does not indicate any incident against the petitioner with regard to his being desperate of dangerous, it is impossible for the Magistrate to recording a finding with regard, much less being satisfied sufficiently enough so as to issue a notice under section 110(g) Cr.P.C.

19. As, analyzed hereinabove, in the facts and circumstances of the present case, the material necessary for invocation of jurisdiction under Section 110(g) Cr.P.C. is clearly lacking and therefore, the application deserves to be allowed.

20. In light of the above, notice dated 13.10.2020 issued underSections 110(g) and 111 Cr.P.C., is hereby set aside and the notices are discharged. The present application under Section 482 Cr.P.C. is hereby allowed.

21. It is open for the concerned Magistrate to pass fresh orders in accordance with law, if so chooses.

(Alok Mathur, J.)

Order Date :- 12.1.2021

Ravi/