Allahabad High Court
Ram Naresh And 3 Others vs State Of U.P. Thru. Prin. Secy. Home Lko. ... on 18 April, 2025
Author: Manish Kumar
Bench: Manish Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Neutral Citation No. - 2025:AHC-LKO:23044
Court No. - 14
Case :- APPLICATION U/S 528 BNSS No. - 225 of 2025
Applicant :- Ram Naresh And 3 Others
Opposite Party :- State Of U.P. Thru. Prin. Secy. Home Lko. And 2 Othersg.A
Counsel for Applicant :- Anurag Singh Chauhan,Anurag Singh
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 Dixit, 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:-
"The impugned order/notice dated 13.02.2025 issued by Sub divisional magistrate Lambua Sultanpur issued under section 129 (G) B.N.S.S. and order U/s- 130/131 B.N.S.S., thereby initiated proceeding and passed order requiring the reply regarding filing of sureties and personal bond of amount 100000/- on the ground that the applicants are habitual offender may kindly be set aside, in the interest of justice."
4. Brief facts of the case are that the applicant no. 4 has lodged an FIR against four named accused persons and one unknown person alleging therein that they had entered in their house in the night and assaulted with danda, kicks and fists and threatened to their life.
5. Learned counsel for the applicant has submitted that after the lodging of the FIR, the impugned order / notice dated 13.02.2025 has been issued by the respondent no. 3 i.e. Sub-Divisional Magistrate, Lambua Sultanpur under Section 129(G) B.N.S.S. and under Section 130/131 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 13.02.2025 has been passed without disclosing anything as to what what material was available before the respondent no.3 for passing an order under Section 129(G) B.N.S.S. and under Section 130/131 B.N.S.S. in a matter where the applicant no. 4 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 13.02.2025 issued by the respondent no. 3 under Section under Section 129(G) B.N.S.S. and under Section 130/131 B.N.S.S. in CAse Crime No.292 of 2024, U/s 191(2), 115(2), 352, 351(3) BNSS & Section 3(1)(Dha) SC/ST Act, Police Station Lambua, District - Sultanpur is hereby quashed.
14. However, it is open for the respondent no. 3 to pass afresh order in accordance with law.
Order Date :- 18.4.2025
S. Kumar
