Allahabad High Court
Chanderesh Kunwar @ Chandra And ... vs State Of U.P. Thru. Prin. Secy. ... on 27 May, 2022
Bench: Karunesh Singh Pawar
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Court No. - 13
Case :- APPLICATION U/S 482 No. - 3201 of 2022
Applicant :- Chanderesh Kunwar @ Chandra And Others
Opposite Party :- State Of U.P. Thru. Prin. Secy. Home And Others
Counsel for Applicant :- Vidya Prasad Nagaur
Counsel for Opposite Party :- G.A.
Hon'ble Karunesh Singh Pawar,J.
1. Heard learned counsel for the petitioners and learned A.G.A. for the State as well as perused the record.
2. Learned counsel for the petitioners are directed to delete respondent nos.5 to 9 from the array of the parties during course of the day.
3. Notice to respondent no.10 is dispensed with.
4. The petition under Section 482 Cr.P.C. filed by the petitioners for quashing of the order dated 13.1.2022 passed by Sub-Divisional Magistrate Kadipur, District Sultanpur.
Learned counsel for the petitioners submits that the impugned order dated 13.1.2022 has been passed by respondent no.2 in a mechanical manner without application of mind on a printed proforma with certain blanks. He further submits that while passing the impugned order the Magistrate has not recorded any opinion/satisfaction that there exist sufficient grounds to take action against the petitioner. In support of his arguments he has relied upon the judgement of Siya Nand Tyagi vs. State of U.P. passed in Criminal Misc. Application No.13541 of 1992. He emphasized on paragraphs 4 to 6 of the judgement, which is extracted below:-
4. Section107 is aimed at a person who causes reasonable apprehension of conduct likely to lead to apprehension of breach of peace or a disturbance of public tranquillity. It is a preventive measure. Proceedings under Section 107/116 should not be transformed into persecution of innocent persons at the sweet will of the police or other persons acting mala fide.
5. In the case of Mohan Lal v. 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, , the Apex Court, in para 36 of its judgment observed:
"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 curtaided
according to its own procedure annd not according to the whim of the Magistrate concerned. It behoves 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 the observe in para 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."
6. In the present case the learned Sub-Divisional Magistrate has thrown the mandatory provisions of Section 111 of the Code to the winds and has prepared a printed pro forma. The learned Magistrate has also not recorded his opinion that there existed sufficient grounds to take action under the provisions of Section 107 of the Code.
5. Learned A.G.A. for the State does not dispute the arguments made by learned counsel for the petitioners.
6. On due consideration to the arguments advanced by learned counsel for the petitioners, perusal of record so also the judgement of this Court in the case of Siya Nand Tyagi, I am of the opinion that the Magistrate could not pass the impugned order on a printed proforma. This shows total non-application of mind on the part of the Magistrate and should have recorded his opinion/satisfaction for existing sufficient grounds to proceed against the petitioners.
7. Accordingly, the present petition succeeds and is allowed. The impugned order dated 13.1.2022 passed by respondent no.2 (Sub-Divisional Magistrate, Kadipur, District Sultanpur, is hereby quashed. The matter is remanded back to learned Magistrate to consider and decide the issue afresh in accordance with law.
Order Date :- 27.5.2022
Madhu
