Lola alias Manish Dhar Dubey alias Babloo vs State of U.P.

Arvind K. Tripathi, J.—Heard learned Counsel for the revisionist, learned A.G.A. and perused the record.

The present criminal revision has been filed against the order dated 27.11.2008, passed by learned Sub-Divisional Magistrate in Criminal Case No. 65/2008, State v. Lola alias Manishdhar Dubey alias Babloo Criminal Case No. 65/2008, u/s 110/111, Cr. P.C., P. S. Durgaganj, district Sant Ravi Das Nagar, Bhadohi.

Learned Counsel for the revisionist submitted that on the basis of only two cases the notice u/s 110/111, Cr. P.C. has been issued without considering the mandatory provision and without giving the substance of general nature of material allegation, only on a printed proforma. The notice has been issued without application of mind. He further submitted that two cases shown under Sections 323, 504, 506 and 329, I.P.C. read with Section 3(1)(x) of S.C./S.T. Act and u/s 135, Electricity Act did not come in the definition of habitual offenders as defined u/s 110, Cr. P.C. counsel for the revisionist has relied upon the judgment in Siya Nand Tyagi v. State of U.P. (XXX) 1993 ACC 146: 1993 ACR 727, in which High Court had quashed the proceedings on account of the reason that initiation of proceedings under Sections 111, 151, 107, 116 and 114, Cr. P.C. on the basis of that the notice was issued in a printed proforma and there was complete absence of application of mind by the Magistrate concerned.

Apart from the aforesaid facts, there are series of decisions in which it has been held by the High Court that provisions contained u/s 111 of the Code are mandatory and the non-compliance thereof vitiates the entire proceedings. The learned Magistrate accepted to depart from the procedure to any substantial extent because the liberty of the persons is involved and the liberty should only be curtailed according to legal procedure and not according to the whim of the learned Magistrate concerned. The impugned notice issued against the revisionist has not followed the mandatory provisions and substance of general nature has also been entered upon which has been issued on a printed format, hence there was non-application of mind. Accordingly, the impugned notice issued u/s 110/111, Cr. P.C., P.S. Durgaganj, district Sant Ravi Das Nagar, Bhadohi is hereby quashed.

Accordingly, the present criminal revision is allowed.

However, it will be open to the learned Magistrate concerned, to issue a fresh notice if found necessary in view of the facts and circumstances in accordance with law.