Allahabad High Court
Dinesh Kumar Singh And Another vs State Of U.P. Thru. Secy. Home Deptt. ... on 17 April, 2025
Author: Manish Kumar
Bench: Manish Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Neutral Citation No. - 2025:AHC-LKO:21769
Court No. - 14
Case :- APPLICATION U/S 528 BNSS No. - 330 of 2025
Applicant :- Dinesh Kumar Singh And Another
Opposite Party :- State Of U.P. Thru. Secy. Home Deptt. U.P. Lko. And 3 Others
Counsel for Applicant :- Manoj Kumar Dwivedi
Counsel for Opposite Party :- G.A.
Hon'ble Manish Kumar,J.
1. With the consent of the learned counsels for the parties, the matter is being decided finally at the admission stage itself as it involves legal issues.
2. Heard Sri Dinesh Kumar Singh, in person, Sri Manoj Kumar Dwivedi, learned counsel for the applicants and Sri Rao Narendra Singh, learned AGA for the State.
3. 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, it is humbly prayed that this Hon'ble court may kindly be pleased to quash the impugned Notice under section 130 B.N.S.S. dated 07.02.2025 issued by the Opposite party no. 2 under Section 126/135 B.N.S.S. in Case no. 42 of 2024 by means of which it is directed that the petitioners to appear before him, in mechanical manner without application of mind and misinterpretation of law."
4. Brief facts of the case are that on 29.12.2024, the applicant no. 1 has lodged an FIR against the two accused persons alleging therein that they had attacked him by knife due to which the applicant sustained grievous injuries.
5. Learned counsel for the applicant has submitted that after the lodging of the FIR, the impugned order dated 07.02.2025 has been passed by the respondent no. 2 i.e. the Assistant Police Commissioner/Executive Magistrate under Section 126/135 B.N.S.S. without disclosing any reason for reaching to the conclusion that there is an apprehension of breach of peace by the applicants. The order has been passed without application of judicial mind, hence, it is bad in the eyes of law. In support of his submission, learned counsel for the applicants 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.
6. 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.
7. In the judgment 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."
8. 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."
9. Also the Court in the case of Rajni Shukla (supra) 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."
10. The said judgments/orders relied by learned counsel for the applicant are applicable in the facts of the present case as in both the cases relied upon by learned counsel for the applicants, 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.
11. The impugned order dated 07.02.2025 has been passed without disclosing anything regarding what material was available before the respondent no. 2 for passing an order under Section 126/135 B.N.S.S., 2023 in a matter where the applicant no. 1 is the person who has lodged the FIR, as mentioned above, so the order has been passed without application of judicial mind, hence, the order is bad in the eyes of law.
12. In the result, the present application is allowed.
13. The impugned notice dated 07.02.2025 issued by the respondent no. 2 under Section 126/135 B.N.S.S. in Case no. 42 of 2024 is hereby quashed.
14. However, it is open for the respondent no. 2 to pass afresh order in accordance with law.
Order Date :- 17.4.2025
Nitesh
