Gayyur Hasan And Another vs State Of U.P. And 2 Others
2022 Latest Caselaw 19845 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Court No. - 48
 
Case :- CRIMINAL MISC. WRIT PETITION No. - 20563 of 2019
 

 
Petitioner :- Gayyur Hasan And Another
 
Respondent :- State Of U.P. And 2 Others
 
Counsel for Petitioner :- Nipun Singh
 
Counsel for Respondent :- G.A.
 

 
Hon'ble Suneet Kumar,J.

Hon'ble Syed Waiz Mian,J.

Heard Sri Nipun Singh, learned counsel for the petitioners and learned A.G.A. for the State.

Petitioner by the instant petition is seeking quashing of the impugned notices under section 110 of the Code of Criminal Procedure, 1973 (for short ''Code') dated 01.07.2019, issued by the third respondent, Sub Divisional Magistrate, Kairana, District Shamli.

The conduct of the State-respondent in not cooperating with the present proceeding is writ large, that inspite several opportunities counter affidavit was not filed, accordingly, vide order dated 14.09.2022, the Court was restrained to impose Rs. 10,000/- cost on the State-respondent. Counter affidavit on behalf of the third respondent thereafter has been filed.

The thrust of the argument of learned counsel for the petitioner rests on two assertions, viz, that the notice under Section 110 of the Code is in violation of the principle of natural justice as no show cause was issued prior to issuing of the impugned notice cum order. Further, proceedings under Section 110 of the Code was initiated on the strength of a solitary case being Case Crime No. 52 of 2019, under section 3/4 Prevention of Damage to Public Property Act, 1984. That single case would not make the petitioners habitual offender.

The assertions made in paragraphs 13 and 19 of the writ petition reads thus:

"13. That impugned order/notice under section 11 of Cr.P.C. is in violation of principle of natural justice and therefore the impugned notice dated 01.07.2019 deserves to be quashed. The impugned order is based on solitary report of Station House Officer, police Station Jhinjhana, District Shamli dated 08.06.2019 without applying any mind.

19. That section 110 of Cr.P.C. applies only to habitual offenders, which means the consistent in committing offence, therefore on a solitary case no order could be passed under section 110 of Cr.P.C., the same is meant for habitual offender."

Learned A.G.A., on instructions, submits that charge sheet has been filed in the aforenoted criminal case.

The reply to the aforesaid paragraphs has been given in paragraphs 18 and 20 of the counter affidavit, wherein, there is no denial that the mandate of Section 110 of the Code was not complied by issuing a show cause notice, further, it is submitted that on a single case provisions of Uttar Pradesh Gangsters and Anti Social Activities (Prevention) Act, 1988 (for short ''Gangster Act'), is attracted. Paragraph 18 and 20 is extracted:

"18. That, the contents of paragraphs No. 12, 13 and 14 of the writ petition as stated are wrong and incorrect hence denied. In reply thereto, it is submitted that the local police who are well familiar with the activities of their territorial limit who submitted the adverse report against the petitioners holding that due to fear of the petitioners no one dare to make complaint against them and therefore, the then Sub Divisional Magistrate rightly issued the notice under section 110 of Cr.PC. Moreover, on the application of the petitioners the then Sub Divisional Magistrate further directed for enquiry and the report filed by the Revenue Authority were found against the petitioners and therefore, the notice under section 110 of Cr.P.C. does not suffer from any illegality or infirmity.

20. That, the contents of paragraphs No. 16, 17, 18, 19 and 20 of the writ petition as stated are not admitted hence denied. In reply thereto it is submitted that this Hon'ble Court as well as the Hon'ble Apex Court have constantly held in catena of cases that even on the basis of only one case crime the provisions of Gangsters Act is attracted and in view of the above, the order under section 110 of Cr.P.C. is just and proper."

Section 110 of the Code mandates security for good behaviour from habitual offenders. It appears that where the Executive Magistrate receives information that there is within his local jurisdiction a person who is habitual of committing offence, the Magistrate, in the manner provided, requires 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.

Section 111 provides that when a Magistrate acting under 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.

Thereafter, the Code mandates that the Executive Magistrate under Section 116 would make an enquiry as to the truth of the information. Sub-clause (3) of Section 116 contemplates that the Magistrate if he considers that immediate measures are necessary for the prevention of a breach of the peace or disturbance of 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. Sub-clause (3) of Section 116 is extracted:

"(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 com3mission 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."

After following the aforesaid procedure as mandated under the Code, an order to give security can be passed by the Magistrate under Section 117. Section 117 reads thus:

"117. Order to give security. If, upon such inquiry, it is proved that it is necessary for keeping the peace or maintaining good behaviour, as the case may be, that the person in respect of whom the inquiry is made should execute a bond with or without sureties, the with Magistrate shall make an order accordingly:

Provided that-

(a) no person shall be ordered to give security of a nature different from, or of an amount larger than, or for a period longer than, that specified in the order made under section 111;

(b) the amount of every bond shall be fixed with due regard to the circumstances of the case and shall not be excessive;

(c) when the person in respect of whom the inquiry is made is a minor, the bond shall be executed only by his sureties."

On perusal of the procedure contemplated and mandated under the Code, it appears that by the impugned order the third respondent bypassing the procedure under section 111, 116 and 117 directly passed the order in the form of notice calling upon the petitioner to furnish security for good behaviour. In other words, the third respondent without making an enquiry on the report, and/or, on the objection of the petitioners, had directed the petitioners to give security. There is no reference of any pending enquiry or of any objection of the petitioners.

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."

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."

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."

In this backdrop, it is submitted by learned counsel for the petitioner that petitioners were not given an opportunity to defend themselves with regard to the contents of the notice. It is further submitted that the counter affidavit filed by the third respondent is without application of mind and a case of casual approach, as it reflects from the averment made in para 20 of the counter affidavit, that for a single case crime the provisions of Gangster Act is attracted. The matter does not pertain to prosecution of the petitioner under the Gangster Act. The proceedings are under section 110 of the Code arising from a case registered under the Prevention of Damage to Public Property Act, 1984. The writ petition accordingly is liable to be allowed.

The writ petition is allowed. The impugned notice dated 01.07.2019, issued by the third respondent, Sub Divisional Magistrate, Kairana, District Shamli, is set aside and quashed. A cost at Rs. 20,000/- is imposed upon the third respondent having regard to the casual approach adopted in the matter, to be deposited with the High Court Legal Services Committee Allahabad, within four weeks from the date of order.

Learned A.G.A. to communicate the order and ensure compliance.

Order Date :- 5.12.2022

K.K. Maurya