Allahabad High Court
Karuna Shakar Dixit And Another vs State Of U.P. Thru. Prin. Secy. ... on 25 April, 2023
Bench: Shree Prakash Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Court No. - 28
Case :- APPLICATION U/S 482 No. - 4040 of 2023
Applicant :- Karuna Shakar Dixit And Another
Opposite Party :- State Of U.P. Thru. Prin. Secy. Home, U.P. Lko. And Another
Counsel for Applicant :- Ashutosh Bajpai
Counsel for Opposite Party :- G.A.
Hon'ble Shree Prakash Singh,J.
Heard Shri Ashutosh Bajpai, learned Counsel for the applicant, Shri Anirudh Kumar, learned A.G.A. for the State and perused the material available on record.
This instant application under Section 482 Cr.P.C. has been filed seeking quashing of the impugned notice / order dated 10.03.2023 under Section 111 Cr.P.C. by the opposite party no. 2 i.e. Sub-Divisional Magistrate, Mahsi, District - Bahraich and the further proceedings of Case No. 953 (Karuna Shankar Dixit Vs. Pankaj & Ors.) under Section 107/116 of Cr.P.C., registered at Police Station - Kotwali Dehat, District - Bahraich.
Learned Counsel appearing for the applicants submits that the Sub-Divisional Magistrate, Mahsi, District - Bahraich, has issued notice under Section 111 of Cr.P.C. He also submits that the mandate of Section 111 of Cr.P.C. is very clear that the Magistrate acting under Section 107, 108, 109 & 110 shall make an order in writing, setting forthwith the substance of information received.
He contended that from bare perusal of the impugned notice it transpires that the Magistrate has issued the notice on a printed proforma and therefore, no substance has been mentioned in the proforma and only the names and certain other facts have been filled up in the blanks of the proforma itself. He further contended that the co-ordinate Bench of this Court has settled the issue in case of Ayodhya Prasad and Ors. Vs. State of U.P. vide order dated 08.09.2017 in Application under Section 482 bearing No. 3537 of 2008 and he has referred to Paragraph 9 and 10 of the aforesaid judgment. Paragraph 9 and 10 of the aforesaid judgment is quoted hereunder:-
"9. The objection of learned counsel for the State to the effect that a petition under Section 482 Cr.P.C. against an order/notice issued under Section 111 Cr.P.C. is not maintainable, cannot be entertained in peculiar facts and circumstances of the case. In the above extracted judgment, it has been held that the provisions of Section 111 Cr.P.C. are mandatory in nature and are required to be complied with. The very purpose of issuing an order/notice under Section 111 Cr.P.C. appears to be to issue show cause notice by a Magistrate acting under Section 107, Section 108, Section 109 or Section 110 Cr.P.C. in writing, setting forth the substance of the information received and the amount of the bond to be executed, the term for which it is to be enforced and the number, character and class of sureties. Perusal of the provisions itself indicates that the order is to be made by the Magistrate, addressed to the affected person in view of the substance of the information received. In case substance of information received itself is not indicated, surely the main ingredient of the provision cannot be said to be satisfied.
10. Section 482 of the Code of Criminal Procedure vests upon the High Court inherent powers to make such orders to prevent abuse of the process of any court or to otherwise secure the ends of justice. In the considered opinion of the court and in peculiar facts and circumstances of the case in view of the law cited hereinabove, I find no reason to dismiss the petition on the technical objection raised by the learned counsel for the State."
Referring the aforesaid he submits that it has been held by the co-ordinate Bench of this Court that if the mandate of Section 111 of Cr.P.C. is not followed, this Court can quash the notice while invoking the jurisdiction under Section 482 of Cr.P.C. He lastly submits that the notice dated 10.03.2023 is not only erroneous but against the mandate of Section 111 of Cr.P.C. and also the law propounded by the co-ordinate Bench of this Court and thus the impugned order dated 10.03.2023 passed by the Sub-Divisional Magistrate, Mahsi, District - Bahraich may be set aside.
On the other hand, learned A.G.A. appearing for the State has vehemently opposed the contentions aforesaid and submits that the Sub-Divisional Magistrate has issued notice while mentioning the fact and its satisfaction which is based on the report of the Station House Officer concerned. He thus submits that no interference is warranted in the impugned notice.
Considering the submissions of learned Counsel for the parties and after perusal of the details available on record, it is evident that the order impugned dated 10.03.2023 has been passed on a proforma by filling in the blanks. It is borne out from the mandate of Section 111 of Cr.P.C. that the substance has to be mentioned while issuing notice under Section 111 of Cr.P.C. and the reason has to be reduced in writing by the Magistrate concerned but it is a proforma itself and fill in the blanks has been done by the Magistrate concerned and the satisfaction in a form of substance has not been recorded by the Magistrate concerned.
This Court has further noticed that the co-ordinate Bench of this Court has also settled this issue in the order dated 08.09.2017 passed in Application under Section 482 bearing no. 3537 of 2008 and that too also favours the contention of learned Counsel for the applicant.
Resultantly, the notice dated 10.03.2023 issued by the Sub-Divisional Magistrate, Mahsi, District - Bahraich is hereby set aside. The matter is remitted back to the Magistrate concerned to pass a fresh order after recording substance, if any.
The instant application is allowed accordingly.
Order Date :- 25.4.2023/Lokesh Kumar
