Allahabad High Court
Abdul Majeed Khan vs State Of U.P. Thru. Prin. Secy. ... on 31 May, 2023
Bench: Shree Prakash Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Court No. - 28
Case :- APPLICATION U/S 482 No. - 5587 of 2023
Applicant :- Abdul Majeed Khan
Opposite Party :- State Of U.P. Thru. Prin. Secy. Home Deptt. Lko. And 4 Others
Counsel for Applicant :- Sabir Ali
Counsel for Opposite Party :- G.A.
Hon'ble Shree Prakash Singh,J.
Heard learned counsel for the applicant, Sri Sushil Kumar Pandey, learned A.G.A. for the State and perused the material placed on record.
Instant application under section 482 Cr.P.C. has been filed with the prayer to quash the impugned notice dated 20-04-2023 issued by the Up Zila Magistrate, Tulsipur, District-Balrampur, under section 110 of Cr.P.C.
Learned counsel appearing for the applicant submits that the applicant is innocent and has falsely been implicated in the instant matter. He next added that there is a case pending against the present applicant and the Sub.Divisional Magistrate, without coming to the conclusion that the present applicant is habitual offender, has invoked the power under section 110 of Cr.P.C. and has passed the impugned order. He submits that the applicant has a case criminal history only.
In support of his contentions, he has placed reliance on the Judgment of this court in Case of Ajeet Vs. State of U.P., reported in AIRONLINE 2021 ALL 200 and has referred paragraph no. 11 of the said Judgment, which is extracted hereinunder :-
"11. In the present case as it has been submitted by learned counsel for the applicant that applicant is not a habitual offender. His involvement in offence as submitted by learned AGA is also not grave. Both the sections, section 504 and 506 of IPC are triable by the Magistrate. Proceedings under Sections 107 and 116 Cr.P.C. is also not a crime defined in IPC. The so called notice which is subject matter of this application suffers from illegality, vagueness of the substance of information received as set forth is wholly incomplete vague and ambiguous which is invalid and defective in the eye of law. The Executive Magistrate has no jurisdiction to proceed on the basis of void notice and proceedings pending against the applicant are a nullity and without jurisdiction. It is well settled that the objective of setting forth in the order, the substance of information received by the Executive Magistrate is to inform the person asked to show cause what allegations he has to answer. If the substance of the information set forth in the notice is vague and ambiguous, the object of Section 110 Cr. P. C. is bound to be defeated."
Referring the aforesaid, he submits that the case of the present applicant is squarely covered with the ratio of aforesaid Judgment and thus, submission is that the order dated 20-04-2023 may be set aside.
On the other hand, learned A.G.A. appearing for the State has opposed the contentions aforesaid and submits that there is no perversity or unlawfulness in the order passed by the Sub.Divisional Magistrate and no interference is warranted.
The matter requires consideration.
Let notice be issued to opposite party no. 5 returnable at an early date
Steps be taken within a week.
List/put up this matter in the Third Week of July, 2023.
In the meantime, learned A.G.A. as well as learned counsel for the opposite party no. 5 may file their Counter Affidavits.
Till the next date of listing, the impugned notice dated 20-04-2023 issued by the Up Zila Magistrate, Tulsipur, District-Balrampur, shall remain stayed.
Order Date :- 31.5.2023
AKS
