Allahabad High Court
Shivali Suresh Kumar Tiwari @ ... vs State Of U.P. Through Principal ... on 5 May, 2022
Bench: Karunesh Singh Pawar
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Court No. - 13
Case :- APPLICATION U/S 482 No. - 2253 of 2022
Applicant :- Shivali Suresh Kumar Tiwari @ Shivali Tiwari
Opposite Party :- State Of U.P. Through Principal Secretary, Home Deptt. And 5 Others
Counsel for Applicant :- Pramod Kumar Shukla,Ashish Kumar Mishra
Counsel for Opposite Party :- G.A.
Hon'ble Karunesh Singh Pawar,J.
Heard learned counsel for the petitioner and learned A.G.A. for the State.
The petition has been filed to quash the notice/order passed by the Assistant Commissioner of Police/Executive Magistrate, Gomti Nagar, under Section 111 Cr.P.C. on the basis of challani report dated 28.03.2022 submitted by Station House Officer, P.S Gomti Nagar, Lucknow by means of which he has been summoned to appear before opposite party no. 3 on 23.04.2022 to show cause as to why the applicant may not be directed to execute a personal bond of Rs. 50000/- and likewise sureties of the same amount.
Notice to respondent no. 5 and 6 are dispensed with.
Short submission of learned counsel for the petitioner is that while issuing impugned notice/order under Section 111 Cr.P.C., there is no mention of any act of the petitioner-applicant which has caused breach of peace and therefore, in absence of such acts or details no reply can be given by the petitioner-applicant in his defence. In support of his submission, he has relied on the judgment of this Court reported in (2021) 116 ACC 430 "Manish Yadav Vs. State of U.P".
Learned A.G.A. has opposed this petition, however, could not dispute the fact that the impugned notice does not contain any act of the petitioner-applicant.
On due consideration to the argument advanced by learned counsel for the petitioner as well as learned A.G.A., so also the impugned notice dated 13.04.2022, I am of the view that notice under Section 107 Cr.P.C. cannot be said to be an empty formality, it is issued for the purpose to get a response from the person to whom notice is issued. In this case no acts or details have been mentioned in the show cause notice, thus, it is clearly takes away the right of the petitioner to defend himself effectively or to give any meaningful reply to the notice. Section 107 Cr.P.C. is extracted below:-
"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 tranquility or to do any wrongful act that may probably occasion a breach of the peace or disturb the public tranquility and is of opinion that there is sufficient ground for proceedings, he may, in the manner hereinafter provided, 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, 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 tranquility or to do any wrongful act as aforesaid beyond such jurisdiction."
A discretion has been given to the the magistrate under Section 107 Cr.P.C. and when he exercises the discretion and comes to a conclusion that he is required to issue notice to show cause to the concerned persons then that notice of shows cause must be a notice satisfying the requirements of Section 111 Cr.P.C. The person sought to be called upon and bound over to keep the peace should be given the adequate opportunity to show cause in view of the provisions of Chapter VIII of Cr.P.C. The sole purpose of the show cause notice is to inform the person about the material for which his response is sought with regard to the acts which may constitute breach of peace and for which he is being directed to file personal bond for maintaining the peace. If a person is not aware of the acts or the incident for which he may or may not be culpable, it is not possible for him to reply a show cause notice.
Having considered the argument advanced as well as judgment of this Court, the impugned notice dated 13.04.2022 is set aside.
The petition is disposed of.
Liberty is given to the State to issue fresh notice in accordance with law.
Order Date :- 5.5.2022
R.C.
