Allahabad High Court
Suneel Kumar vs State Of U.P. And Another on 13 February, 2023
Bench: Samit Gopal
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 69
Case :- APPLICATION U/S 482 No. - 3628 of 2023
Applicant :- Suneel Kumar
Opposite Party :- State Of U.P. And Another
Counsel for Applicant :- Jay Prakash Yadav
Counsel for Opposite Party :- G.A.
Hon'ble Samit Gopal,J.
List revised.
Heard Sri Jay Prakash Yadav, learned counsel for the applicant, Ms. Arti Agarwal, learned State counsel and perused the record.
This application under Section 482 has been filed by the applicant-Suneel Kumar with the prayer to allow the present application and quash the order/notice dated 12.1.2023 passed by Special Executive Magistrate, Noida-II, Gautam Budh Nagar as well as entire proceeding of Case No.55 of 2023 (State Vs. Suneel Kumar), u/s 107, 116 Cr.P.C., P.S. Phase-I, District Gautam Budh Nagar pending before Special Executive Magistrate, Noida_II, Gautam Budh Nagar whereby the applicant has been given notice to show cause that why he should not be required to furnish personal bond for his good behavior for a period of 6 months and also to sureties for an amount of Rs.30,000/- each and further to stay the further proceedings of aforesaid case during the pendency of the present application before this Hon'ble court and/or to pass such other and further order which this Hon'ble Court may deem fit and proper under the facts and circumstances of the case.
Learned counsel for the applicant argued that a printed format cannot be a satisfaction which is required under Section 111 of Code of Criminal Procedure while issuing notice under Section 111 of the Code of Criminal Procedure. He has placed reliance upon the judgement of this Court in the Case of Siya Nand Tyagi v. State of U.P. reported in 1994 Cri. LJ 1298 and also the judgement of the Delhi High Court in the case of Tavindar Kumar and another v. State reported in 1990 Cri LJ 40.
I have perused the impugned notice issued under Section 111 of the Code of Criminal Procedure and have gone through the judgements placed before this Court.
The notice/ order is in the printed form and the blank spaces have been filled in printed format. This shows that the printed format is always available with the City Magistrate, Gorakhpur in the matters where the action is required in such matters.
On a pointed query being made to the learned Additional Government Advocate, he could also not justify the notice.
In the considered opinion of the Court, when the law requires the Magistrate to apply his mind, then there has to be a due application of mind. The manner in which the notice has been issued, it clearly transpires that it has been filled by some group of the office of the City Magistrate, and thereafter he put his signatures and the notice has got issued. This practice is reprimanded. It is expected that the City Magistrate, shall apply his mind as required in law before issuing notice under Section 111 for taking appropriate action under Section 107/116 of the Code of Criminal Procedure.
This Court in Siya Nand Tyagi v. State of U.P. (supra) has clearly held thus:-
"3. It is unfortunate that the requirement of Section 107 of the Code that the Executive Magistrate receiving information should be of the opinion that there are sufficient grounds for proceedings under the said section have become a dead letter and are always followed in its breach. It should be borne in mind that the proceedings Under Section 107 / 116 of the Code some times cause irreparable loss and unnecessary harassment to the public who run to the Court at the costs of their own vocations of life. Unless it is absolutely necessary proceedings Under Section 107/116, Cr. P.C. should not be resorted to experience tells that proceedings like the one under Section 107/116 of the Code are conducted in a most lethargic and lackadaisical manner by the learned Executive Magistrate causing harassment to public beyond measure.
4. 107 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."
6. 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 and 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."
7. 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."
In view of the above, impugned order/notice dated 12.1.2023 passed by Special Executive Magistrate, Noida-II, Gautam Budh Nagar in Case No.55 of 2023 (State Vs. Suneel Kumar), u/s 107, 116 Cr.P.C., P.S. Phase-I, District Gautam Budh Nagar is hereby quashed.
Accordingly, the application u/s 482, is allowed to this extent.
The matter is remanded back to the trial court concerned to pass fresh order in accordance with law within a period of three weeks from the date of production of a certified copy of this order.
(Samit Gopal, J.)
Order Date :- 13.2.2023/Gaurav
