Allahabad High Court
Sanat Kumar Pandey @ Sanad Kumar Pandey vs State Of U.P. Thru. Addl. Chief Secy. ... on 17 April, 2025
Author: Manish Kumar
Bench: Manish Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Neutral Citation No. - 2025:AHC-LKO:21532
Court No. - 14
Case :- APPLICATION U/S 528 BNSS No. - 300 of 2025
Applicant :- Sanat Kumar Pandey @ Sanad Kumar Pandey
Opposite Party :- State Of U.P. Thru. Addl. Chief Secy. Home Deptt. Lko. And 4 Others
Counsel for Applicant :- Achal Singh Yadav,Anil Kumar Yadav,Nilesh Kumar Rao
Counsel for Opposite Party :- G.A.
Hon'ble Manish Kumar,J.
The instant application under Section 482 Cr.P.C. read with Section 528 Bharatiya Nagrik Suraksha Sanhita, 2023 has been filed by the applicant with the following prayer:-
"For the facts, reasons and circumstances, stated in the accompanying affidavit, filed in support of the present application under Section 528 BNSS, it is most respectfully prayed that this Hon'ble Court may kindly be pleased to quash the impugned order/notice dated 10.03.2025, under Section 130 BNSS (Annexure No. 1), passed by the Assistant Police Commissioner/Executive Magistrate, Gosaiganj, Commissionerate Lucknow in Crl. Case No. 310/2025, under Section 126/135 BNSS, State of U.P. vs. Ajay Yadav & Ors, pending in the Court of Assistant Police Commissioner/Executive Magistrate, Gosaiganj, Commissionerate Lucknow, so far it relates to the applilcant, in the interest of justice."
Learned counsel for the applicant has submitted that the present application has been preferred for quashing of the impugned order/notice dated 10.03.2025 passed under Section 126/135 BNSS on the ground that the said order has been passed without application of judicial mind and without disclosing the police report submitted by the Sub Inspector. Even the dispute for which the impugned order has been passed is also not mentioned in the impugned order, hence, it is bad in the eyes of law. In support of his submission, learned counsel for the applicant has relied upon the judgment dated 21.07.2022 passed in the case of Santosh Sharma @ Sonu vs. State of U.P. and 2 Ors. in Application U/S 482 No. 10307 of 2022 and the judgment dated 16.04.2024 passed in the case of Rajni Shukla vs. State of U.P. thru. Addl. Chief Secretary, Home and 2 Ors. in Application U/S 482 No. 3499 of 2024.
On the other hand, learned AGA has submitted that the order impugned in the present application has been passed after due application of judicial mind and there is no illegality in the impugned order, hence, the present application is liable to be dismissed.
After hearing learned counsel for the parties and going through the record of the case as also the judgments relied by learned counsel for the applicant, the position which emerges out in the present case is that in the judgment in the case of Santosh Sharma @ Sonu (supra), the relevant paragraph which has been relied by the learned counsel for the applicant wherein it has been held as under:-
"Thus even a show cause notice can be challenged if it does not disclose the general nature of material allegations i.e. substance of information received."
The relevant paragraph of the second judgment relied by learned counsel for the applicant in the case of Rajni Shukla (supra), reads as under:-
"In view of aforesaid, this Court has examined the impugned order dated 26.03.2024 passed by the Assistant Commissioner of Police/Executive Magistrate, Kakori, Lucknow under sections 107/116 Cr.P.C. The Court finds that impugned order contains a bare recital that there is apprehension of commission of cognizable offence. Impugned order does not contain full substance of information given by concerned Police Officer. Consequently, concerned Magistrate has not acted judiciously while issuing the impugned order dated 26.03.2024. The order under Section 107/116 Cr.P.C. has been passed in a routine manner."
The said judgments/orders relied by learned counsel for the applicant are not applicable in the facts of the present case as in both the cases relied upon by learned counsel for the applicant, it has been held that the show cause notice can be challenged if it does not disclose the general nature of material allegations i.e. substance of information received.
In the case of Rajni Shukla (supra), this Court has relied upon the judgment in the case of Baleshwar S/o Ram Saran and Others vs. State of U.P. [2008 (63) ACC 374], The relevant paragraphs of the same are quoted hereinbelow:-
"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."
From perusal of the same, it is found that in that case, it is not mentioned in the show cause notice that what type of litigation was 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, whereas the case in hand, the Assistant Commissioner of Police/Executive Magistrate has mentioned about the report submitted by the Sub Inspector, the nature of dispute that there is a dispute pertaining to the office bearers of the Society and reason for reaching to the satisfaction of breach of peace is also given that the Community Centre was locked due to that dispute and thereafter, the show cause notice has been issued against the applicant.
The said mention of reasons cannot be said to be passed without application of judicial mind as the applicant himself in the affidavit discloses about the dispute of the office bearers, so it cannot be said that the impugned order has been passed without application of judicial mind, hence the present application is devoid of merits and is accordingly dismissed.
Order Date :- 17.4.2025
Nitesh
