Mohammad Saif vs State Of U.P. Thru. Prin. Secy. Home U.P. ...
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Allahabad High Court

Mohammad Saif vs State Of U.P. Thru. Prin. Secy. Home U.P. ... on 31 May, 2024

Author: Shamim Ahmed

Bench: Shamim Ahmed

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 


?Neutral Citation No. - 2024:AHC-LKO:42061
 
Court No. - 27
 

 
Case :- APPLICATION U/S 482 No. - 5234 of 2024
 

 
Applicant :- Mohammad Saif
 
Opposite Party :- State Of U.P. Thru. Prin. Secy. Home U.P. Lko. And Another
 
Counsel for Applicant :- Anupam Bajpai
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Shamim Ahmed,J.
 

Heard Mr. Anupam Bajpai, learned counsel for applicant as well as Ms. Ankita Tripathi, learned A.G.A. for State and perused the record.

This application under section 482 Cr.P.C. has been filed to quash the impugned order dated 22.03.2024 passed by Sessions Judge, Barabanki in Criminal Revision CNR No.UPBB010020882024 filing No.1877/2024; Mohd Shaif and Others vs. Ram Ashrey Verma Sub Divisional Magistrate Ram Sanehi Ghat and Others, only in respect of the applicant and impugned notice dated 04.03.2024 under Section 110 Cr.P.C. issued by Sub Divisional Magistrate, Ram Sanehighat, District-Barabanki alongwith entire criminal proceedings of the aforesaid case pending before learned Magistrate.

Record shows that police of Police Station Daryabad, District-Barabanki submitted a challan against applicant Mohammad Saif, whereby he has been challaned under sections 110 Cr.P.C. It is alleged in aforesaid report that there is possibility of breach of peace. In order to prevent same, aforesaid person has been challaned under section 110 Cr.P.C. In the interest of Justice, requisite amount of personal bond and surety bond be obtained from above named person.

After aforesaid report was forwarded by S.H.O. P.S. Daryabad, Sub Divisional Magistrate, Ram Sanehighat, Barabanki issued notice dated 04.03.2024 under sections 110 Cr.P.C asking applicant to furnish personal bond of Rs. 1 lac and two sureties of the same amount.

Feeling aggrieved by aforesaid notice dated 04.03.2024 and order dated 22.03.2024 passed by Revisional Court, applicant namely Mohammad Saif has now approached this Court by means of present application under section 482 Cr.P.C.

Learned counsel for applicant contends that notice dated 04.03.2024, issued by Sub Divisional Magistrate, Ram Sanehighat, Barbanki is patently illegal. Same does not contain full particulars nor the full substance of Police Report, on the basis of which aforesaid notice has been issued. It is thus urged that impugned notice does not fulfill the requirement of Section 111 Cr.P.C. In support of above, reliance is placed upon Baleshwar S/o Ram Saran and Others Vs. State of U.P., 2008 (63) ACC 374, wherein a learned Single Judge has observed as follows in paragraphs 6, 7 and 8:

"6. Having given my thoughtful consideration to the rival submissions made by parties Counsel and after going the impugned notice, I find force in the aforesaid contention of the learned Counsel for the applicants that the impugned notice is wholly illegal and void. Annexure 1 is the copy of the impugned notice, which was issued by SDM Mawana (Meerut) to the applicants, whereby they were called upon to appear on 10.12.2004 and show cause as to why they be not ordered to execute a personal bond for Rs. 30,000/- and furnish two sureties each in the like amount to keep peace for a period of one year. In this notice it is only mentioned by the SDM concerned that he is satisfied with the report of S.O. of P.S. Mawana that due to old litigation, there is enmity between the parties, due to which there is likelihood of the breach of peace. It is not mentioned in this notice that what type of litigation is going on between the parties and in which Court the said litigation is pending. Number of the case and other details of the said litigation have also not been mentioned in the impugned notice. As such the impugned notice issued by the learned SDM Mawana is vague and it does not fulfil the requirements of Section 111, Cr.P.C. This type of notice has been held to be illegal by this Court in the case of Ranjeet Kumar v. State of U.P. (supra).

7. Making an order under Section 111 of the Code is not an idle formality. It should be clear on the face of the order under Section 111, Cr.P.C. that the order has been passed after application of judicial mind. If no substance of information is given in the order under Section 111, the person against whom the order has been made will remain in confusion. Section 114 of the Code provides that the summons or warrants shall be accompanied by a copy of the order made under Section 111. This salutary provision has been enshrined in the Code to give notice of the facts and the allegations which are to be met by the person against whom the proceedings under Section 107, Cr.P.C. are drawn.

8. 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."

Learned counsel for the applicant has placed further reliance upon judgments of this Court reported in 2004 (5) ACC 734 Aurangzeb and others Vs. State of U.P. and another, 2002 (45) ACC 627 Ranjeet Kumar and others Vs. State of U.P. and others and 2008 (61) ACC 540 Har Charan Vs. State of U.P. and another in support of his contention.

In view of aforesaid, this Court has examined the impugned notice dated 04.03.2024 issued by Sub Divisional Magistrate, Ram Sanehighat, Barabanki and order dated 22.03.2024 passed by Revisional Court, under sections 110 Cr.P.C. The Court finds that impugned notice contains a bare recital that there is apprehension of commission of cognizable offence. Impugned notice does not contain full substance of information given by concerned Police Officer. Consequently, concerned Magistrate has not acted judiciously while issuing the impugned notice dated 04.03.2024 and the revisional court has also erred in law while passing the order dated 22.03.2024 and did not apply its mind to the facts and circumstances of the case. The notice under Section 110 Cr.P.C. has been issued only on the basis of one case the impugned notice does not contain the substance of allegation which has been made against the applicant and has been issued in a routine manner on a printed format.

In view of above, the impugned notice dated 04.03.2024, issued by Sub Divisional Magistrate, Ram Sanehighat, Barabanki and order dated 22.03.2024 passed by the revisional court, cannot be sustained. Accordingly, the same are liable to be quashed

Consequently, present application succeeds and is liable to be allowed. It is accordingly allowed. Impugned notice dated 04.03.2024 and revisional order 22.03.2024 are quashed. Sub Divisional Magistrate, Ram Sanehighat, Barabanki, shall issue a fresh notice after undertaking requisite exercise in the light of observations made herein above and in accordance with law, if deem fit under the circumstances of the case.

Order Date :- 31.5.2024

Piyush/-