Himachal Pradesh High Court
Shatru Ghan vs Ludhar Singh & Others on 14 June, 2022
Bench: Ajay Mohan Goel
IN THE HIGH COURT OF HIMACHAL PRADESH,
SHIMLA
.
ON THE 14th DAY OF JUNE, 2022
BEFORE
HON'BLE MR. JUSTICE AJAY MOHAN GOEL
CRIMINAL MISC. PETITION (MAIN) U/S 482 CRPC
No.607 of 2021
Between:
1. SHATRU GHAN S/O SH.
DEVI RAM AGE 74 YEARS
2. SH. NARINDER PAL S/O
SH. SHIV RAM AGE 54 YEARS
3. SMT. KIRNA DEVI W/O SH.
NARINDER PAL AGE 53
YEARS
4. AJAY KUMAR S/O SH.
SHATRU GHAN AGE 43 YEARS
ALL R/O VILLAGE BHERI P.O.
SAJAO PIPLU, ILLAQUA
ANANTPUR, TEHSIL
DHARAMPUR & DISTRICT
MANDI, H.P.
....PETITIONERS.
(BY MR. J.L. SHARMA, ADVOCATE)
AND
1. STATE OF H.P. THROUGH
ADVOCATE GENERAL STATE
OF H.P. (RESPONDENT NO.1
I.E. STATE OF H.P.
::: Downloaded on - 15/06/2022 20:02:23 :::CIS
2
THROUGH ADVOCATE
GENERAL STATE OF H.P.
.
HAS BEEN DELETED AND
SUPERINTENDENT OF
POLICE MANDI HAS BEEN
IMPLEADED AS PARTY
RESPONDENT VIDE ORDER
DATED 15.12.2021)
2. SH. LUDAR SINGH S/O SH.
DEVI RAM RESIDENT OF
VILLAGE BHERI P.O. SAJAO
PIPLU, ILLAQUA ANANTPUR,
TEHSIL DHARAMPUR &
DISTRICT MANDI, H.P.
....RESPONDENTS.
(BY MR. DINESH THAKUR, MR. SUMESH RAJ, MR. SANJEEV
SOOD, ADDITIONAL ADVOCATES GENERAL, WITH MR. AMIT
KUMAR DHUMAL, DEPUTY ADVOCATE GENERAL AND MR.
MANOJ BAGGA, ASSISTANT ADVOCATE GENERAL, FOR
RESPONDENT NO.1)
(RESPONDENT NO.2 EX PARTE)
Whether approved for reporting?1 No
Reserved on:24.05.2022.
This petition coming on for orders this day, the Court passed the following:
JUDGMENT
By way of this petition filed under Section 482 of the
Code of Criminal Procedure, the petitioner has prayed for the
following relief:
"It is, therefore, respectfully prayed that after calling for
the total record of the Courts below, the petition may
kindly be allowed and after setting aside the order dated
.
22.09.2021, as passed by the Ld. Additional Sessions
Judge, Sarkaghat in Criminal Rev. No.84/2018, whereby
the Order passed by the learned SubDivisional
Magistrate, Dharampur, District Mandi, H.P. dated
29.10.2018, titled as State Versus Ludhar Singh & others
has been affirmed may kindly be set aside and quashed,
in the interest of justice and fair play."
2. In terms of order dated 15.12.2021, respondent No.2
was proceeded against ex parte and State of Himachal Pradesh was
ordered to be deleted as party respondent and Superintendent of
Police, Mandi, District Mandi, H.P. was ordered to be impleaded as
respondent.
3. The case of the petitioner is that a complaints dated
25.10.2017, 03.1.2017, 20.02.2018 and 28.04.2018 was received at
Police Station Dharampur, District Mandi, H.P. from the office of
SubDivisional Magistrate, Dharampur, District Mandi, H.P. by the
Incharge, Police Post Titra, District Mandi, H.P., which was
investigated. During investigation, it was found that the land in
dispute among the parties was got demarcated by NaibTehsildar
concerned on 25.04.2018 in the presence of the respective parties
and during the course of demarcation proceedings the parties had
been hurling abuses against each other and were also threatening
.
each other with dire consequences to do away with their lives.
4. After investigation was carried out on the said
complaint, the Incharge of the Police Station filed a Kalandra under
Sections 107,150 and 146 of the Code of Criminal Procedure before
SubDivisional Magistrate, Dharampur, District Mandi, H.P.. This
lead to the issuance of order of summoning, dated 29.10.2018, by
SubDivisional Magistrate. As per the petitioners, this order was bad
in law as the same was not inconformity with the statutory
provisions. Feeling aggrieved the petitioner filed a Criminal Revision,
i.e. Criminal Revision No.84 of 2018, in the Court of learned
Additional Sessions Judge, Sarkaghat, District Mandi, H.P.,
however, the same was dismissed by the said Court, which has led
to the filing of the present petition.
5. Shri J.L. Sharma, learned counsel for the petitioners
has submitted that the impugned orders are not sustainable in the
eyes of law for the reason that while issuing notice to the petitioners
under Section 111 of the Code of Criminal Procedure, learned Sub
Divisional Magistrate, Dharampur did not follow the statutory
provisions as they stand contained in Sections 107, 111 and 112
etc. and for this reason the summoning order dated 29.10.2018 was
bad in law. He further submitted that in revision this extremely
.
important aspect of the matter was completely ignored by the
learned Revisional Court while dismissing the revision filed by the
petitioner and therefore, the order so passed by the learned
Revisional Court was also perverse and not sustainable in the eyes
of law.
6. On the other hand, learned Additional Advocate General
argued that there was no infirmity either in the summoning order or
in the order vide which the Revision Petition of the petitioners was
dismissed by the learned Court below for the reason that the
procedure prescribed was duly followed while issuing the
summoning order and the reasons as to why the Criminal Revision
filed by the present petitioners was dismissed are clearly borne out
from the order. On these basis, he submitted that the petition being
devoid of any merit be dismissed.
7. Having heard learned counsel for the parties and having
perused the pleadings as well as the documents appended therewith,
this Court is of the considered view that there is merit in the present
petition and the same deserves to be allowed.
8. Order dated 29.10.2018, vide which summons were
issued to the complainant by learned SubDivisional Magistrate,
Dharampur, in proceedings under Sections 107/150/145 of the
.
Code of Criminal Procedure is on record as Annexure P3 and the
same reads as under:
" None present. Today the cases shall be heard at S.D.O
(c ) Camp Court Sandhole. So case could not be heard at
Dharampur. Now the case listed for 28112018 for the
same purpose."
9 9. Section 107 of the Code of Criminal Procedure is quoted
hereinbelow:
"107. Security for keeping the peace in other cases
(1) When an Executive Magistrate receives information
that any person is likely to commit a breach of the peace
or disturb the public tranquillity or to do any wrongful act
that may probably occasion a breach of the peace or
disturb the public tranquillity and is of opinion that there
is sufficient ground for proceeding, he may, in the
manner hereinafter provided, require such person to
show cause why he should not be ordered to execute a
bond, 1 with or without sureties,] for keeping the peace
for such period, not exceeding one year, as the
Magistrate thinks fit.
(2) Proceedings under this section may be taken before
any Executive Magistrate when either the place where
the breach of the peace or disturbance is apprehended is
within his local jurisdiction or there is within such
jurisdiction a person who is likely to commit a breach of
.
the peace or disturb the public tranquillity or to do any
wrongful act as aforesaid beyond such jurisdiction."
10. In terms of the said statutory provisions, when an
Executive Magistrate receives information that any person is likely to
commit a breach or peace or disturb public tranquility etc. and is of
the opinion that there is sufficient ground for proceeding, then the
Magistrate may, in the manner thereinafter provided, require such
person to show cause why he should not be ordered to execute a
bond for keeping peace for such period as the Magistrate thinks fit
not exceeding one year. The procedure prescribed finds mentioned in
Section 111 of the Code of Criminal Procedure and this statutory
provision reads as under:
"111. Order to be made. When a Magistrate acting
under section 107, section 108, section 109 or section
110, deems it necessary to require any person to show
cause under such section, he shall make an order in
writing, setting forth the substance of the information
received, the amount of the bond to be executed, the term
for which it is to be in force, and the number, character
and class of sureties (if any) required."
Thus, it is apparent from the scheme of statute that in terms of
Section 111 of the Code of Criminal Procedure, when a Magistrate
acting under Sections 107 to 110 of the Code of Criminal Procedure,
.
deems it necessary to require any person to show cause under such
Section, then he shall make an order in writing, setting forth the
substance of the information received, the amount of the bond to be
executed, the term for which it is to be in force, and the number,
character and class of sureties (if any) required.
11. Section 112 of the Code of Criminal Procedure provides
that if the person in respect of whom such order is made is present
in the Court, then the order shall be read over to him and if he so
desires, the substance whereof shall be explained to him.
12. Section 113 of the Code of Criminal Procedure provides
that if such person is not present in the Court, then the Magistrate
shall issue a summon, requiring him to appear.
13. Section 114 of the Code of Criminal Procedure provides
that every summons issued under Section 113 of the Code of
Criminal Procedure shall be accompanied by a copy of the order
made under Section111 of the Code of Criminal Procedure and such
copy shall be delivered by the officer serving or executing such
summons to the person served.
14. Section 116 of the Act provides that when an order
under Section 111 has been read over and explained in terms of
Section 112 or when person appears or is brought before the
.
Magistrate in compliance with or in execution of summons/
warrants issued under Section 113, the Magistrate shall proceed to
inquire into the truth of the information, upon which action has
been taken etc.
15. The important aspect is that when a Magistrate acting
under Sections 107 to 110 of the Code of Criminal Procedure deems
it necessary to require any person to show cause, then "he shall
make an order in writing, setting forth the substance of the
information received, the amount of the bond to be executed
etc."
This implies that a show cause under Section 111 of the Code of
Criminal Procedure can be issued only after an order is made in
writing by the SubDivisional Magistrate, setting forth the substance
of the information received etc. In the present case, this is missing.
Notice under Section 111 of the Code of Criminal Procedure has
been issued to the respondent by the SubDivisional Magistrate
without making an order in writing, setting forth the substance of
the information received. In fact, the order which was passed while
issuing notice under Section 111 of the Code of Criminal Procedure
has already been quoted by me hereinabove. Perusal thereof makes
it amply clear that before issuance of the summons, no order in
.
writing setting forth the substance of the information received was
made by the SubDivisional Magistrate concerned. The above
renders the issuance of Notice under Section 111 of the Code of
Criminal Procedure as bad in law.
16. Coming to the order passed by the learned Revisional
Court, it appears that the learned Court below did not appreciate the
contentions of the petitioners therein as well as the statutory
provisions of Code of Criminal Procedure in the correct perspective.
17. A perusal of the order demonstrates that after taking
note of the provisions of Sections 107, 111 and 116 of the Code of
Criminal Procedure, learned Court below held that SubDivisional
Magistrate had "established" on the basis of police complaint that
offences under Sections 107, 145 and 150 of the Code of Criminal
Procedure were made out against the petitioners and then issued
notice under Section 111 of the Code of Criminal Procedure to the
revision petitioners. Learned Court below also observed that there
was no merit in the contention of the petitioners that there was no
substance of the information etc. mentioned in the notice, which as
per the learned Revisional Court was a matter to be decided on merit
after the parties had adduced evidence.
18. These findings in the considered view of this Court are
.
not sustainable in the eyes of law. The findings returned by the
learned Revisional Court that the issues raised by the revision
petitioners had to be decided on merit after the parties had adduced
evidence, are wrong findings for the reason that learned Revisional
Court lost sight of the fact that there was no compliance of the
provisions of Section 111 of the Code of Criminal Procedure at the
time of issuance of notice under the said Section. The relevant
record of the case which was produced by the State in compliance to
the orders passed by this Court demonstrated that no order was
made in writing setting forth the substance of the information
received by the SubDivisional Magistrate after he had received the
complaint as is envisaged in Section 111 of the Code of Criminal
Procedure. This rendered the issuance of summons to the petitioner
as bad in law being contrary to the letter and spirit of the provisions
of Section 111 of the Code of Criminal Procedure.
19. Thus, in view of what has been observed hereinabove,
this petition succeeds and both, the order of summoning issued by
learned SubDivisional Magistrate, Dharampur, District Mandi, H.P.
dated 29.10.2018 and also the order which has been passed by the
Court of Ld. Additional Sessions Judge, Sarkaghat, District Mandi,
H.P., dated 22.09.2021, in Criminal Revision Petition No.84 of 2018,
.
titled as Shiv Ram & others Versus State of H.P. & another,
preferred by the petitioners against order dated 29.10.2018, are held
to be bad in law.
20. The petition, therefore, is allowed in above terms and
order dated 29.10.2018, passed by learned SubDivisional
Magistrate, Dharampur, District Mandi, H.P. as well as order dated
22.09.2021, passed by the Court of learned Additional Sessions
Judge, Sarkaghat, District Mandi, H.P., in Criminal Revision Petition
No.84 of 2018, titled as Shiv Ram & others Versus State of H.P. &
another, are ordered to be quashed and set aside.
21. The petition stands disposed of accordingly, so also the
pending miscellaneous applications, if any.
(Ajay Mohan Goel)
Judge
June 14, 2022
(Rishi)
