Narendra and Others vs State of U.P. and Another

Vijay Kumar Verma, J.—Heard Sri Deepak Kaushik, advocate for the applicants, learned A.G.A. for the State and perused the record.

By means of this application u/s 482 of the Code of Criminal Procedure (in short, ''the Cr. P.C.''), the proceeding of the Case No. 2157/9 of 2008, State v. Nagendra and others, u/s 107/116, Cr. P.C. P. S. Janshath, district Muzaffarnagar is sought to be quashed.

From the record, it transpires that Sri Prahlad Singh s/o Ikhtyar Singh resident of Malikpura Majra Kaval, P. S. Janshath, district Muzaffarnagar had moved an application in the Court of S.D.M. Janshath (Muzaffarnagar) on 15.10.2008. On the basis of that application without calling for any report from P. S. concerned, the S.D.M., Janshath passed order u/s 111, Cr. P.C. on 17.10.2008, in consequence whereof notices were issued to the applicants to appear in his Court on 24.10.2008 to show cause as to why they be not ordered to execute a personal bond of rupees one lac and furnish two sureties each in the like amount to keep peace for a period of one year. On the basis of that order, Case No. 2157/9 of 2008 was registered against the applicants u/s 107/116, Cr. P.C., the proceeding of which has been challenged by the applicants through the application u/s 482, Cr. P.C.

It is submitted by learned Counsel for the applicants that the impugned notice issued by the S.D.M., Janshath against the applicants is void and wholly illegal, because the said notice is based on the order passed by the S.D.M. on 17.10.2008 without applying his judicial mind and hence, the entire proceedings of the case should be quashed by this Court in its inherent jurisdiction, as continuance of the said proceedings would be an abuse of the process of the Court. The contention of the learned Counsel is that merely on the basis of the application moved by Sri Prahlad Singh, impugned order u/s 111, Cr. P.C. was passed without calling for any report from the P.S. concerned and since the allegations made in the said application are vague and without any substance, hence, the impugned order is wholly illegal and further proceeding of the case which are based on that order are also illegal.

Having given my thoughtful consideration, the aforesaid submission made by learned Counsel for the applicants has got force and must be accepted. Annexure-1 is the copy of the application dated 15.10.2008, which was moved by opposite party No. 2 Prahlad Singh in the Court of S.D.M., Janshath for taking action against the applicants. In that application, vague allegation about giving threatening by the applicants to Prahlad Singh has been made. No date has been mentioned about the incident in which threatening was given by the applicants or any altercation had taken place between the parties. It is only mentioned in the said application that "gaon ke Narendra va Bittu putragan Seva Singh, Pinder s/o Balkar, Kanta va Kala putragan Gopal, Devendra va Laddi putragan Soran niwasi Gram Malikpura Majra Kaval Thana Jansath TehsilJansath bahut hi jhagdalu va sarkash kisma ke log hain aur aaye din prarthi va prarthi ke parivar ke sath gali galoj va jhagda fisad karte rehte hain jisse mauke par shanti bhang ka bhari andesha hai. Uprokt Narendra aadi ke virudh kanooni karyavahi ki jani aavashyak hai." It is not mentioned in the application of opposite party No. 2 as to on which date and place an incident of giving threatening took place between the parties. The impugned order shows that on receipt of the said application, the learned S.D.M. even did not care to call for a report from P.S. concerned with a view to ascertain the correctness of the allegations made therein and merely on the basis of the said application which contained vague allegations, impugned order u/s 111, Cr. P.C. has been made. Therefore, I entirely agree with the submission of the learned Counsel for the applicants that impugned order has been passed by the learned S.D.M. without applying his judicial mind and hence, the proceedings of the case, which are based on the said order, are liable to be quashed.

Section 114, Cr. P.C. lays down that every summons or warrant issued u/s 113 shall be accompanied by a copy of the order made u/s 111 and such copy shall be delivered by the officer serving or executing such summons or warrant to the person served with, or arrested under, the same. Notice issued u/s 111, Cr. P.C. in present case in pursuance of the impugned order shows that copy of the said order was not annexed with that notice. As such compliance of Section 114, Cr. P.C. was also not made, which is also serious lacuna in the case.

Making an order u/s 111 of the Code is not an idle formality. It should be clear on the face of the order u/s 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 u/s 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 u/s 111. This salutary provision have 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 u/s 107, Cr. P.C. are drawn.

It should be borne in mind that the proceedings u/s 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 u/s 107/116, Cr. P.C. should not be resorted to. Experience tells that proceedings like the one u/s 107/116 of the Code of Criminal Procedure are conducted in a most lethargic and lackadaisical manner by the learned Executive Magistrate causing harassment to public beyond measure.

In the case of Madhu Limaye Vs. Sub-Divisional Magistrate, Monghyr and Others, the Apex Court, in para 36 of its judgment observed:

We have seen the provisions of Section 107. That section says that action is to be taken in the manner hereinafter provided and this clearly indicates that it is not open to a Magistrate in such a case to depart from the procedure to any substantial extent. This is very salutary because the liberty of the person is involved and the law is rightly solicitous that this liberty should only be curtailed according to its own procedure and not according to the whim of the Magistrate concerned. It behoves us, therefore, to emphasise the safeguards built into the procedure because from there will arise the consideration of the reasonableness of the restrictions in the interest of public order or in the interest of the general public.

In this very case, the Apex Court went on to observe as under in para 27:

Since the person to be proceeded against has to show cause, it is but natural that he must know the grounds for apprehending a breach of the peace or disturbance of the public tranquillity at his hands. Although the section speaks of the ''substance'' of the information it does not mean the order should not be full. It may not repeat the information bodily but it must give proper notice of what has moved the Magistrate to take the action. This order is the foundation of the jurisdiction and the word ''substance'' means the essence of the most important parts of the information.

In the case of Mohan Lal v. State of U. P. 1977 ACC 333: 1977 ACR 4, this Court observed that "there are a series of decisions in which the same principles have been repeated again and again. It is distressing to note that the repeated pronouncement of this Court as also the perception made by the Supreme Court have fallen on the deaf ears of our Executive Magistrates who still treat the making of order u/s 111 an idle formality. Unfortunately due to lack of clear perception of law the learned VII Ith Additional Sessions Judge, Agra has also put his seal of approval on the invalid order u/s 111. In modern time the judiciary, like any other State organ, is under scrutiny of the public and rightly so, because in a democracy the people are the ultimate masters of the country and all State organs are meant to serve the people. The lack of vigil on the part of the lower revisional court is regrettable."

In view of the observations made in the cases referred to hereinabove and having regard to the aforesaid discussion, the entire proceeding of the case, which is based on illegal and unjustified order dated 17.10.2008, deserve to be quashed.

Consequently, the application u/s 482, Cr. P.C. is allowed. The impugned order dated 17.10.2008 as well as the proceedings of Case No. 2157/9 of 2008, State v. Nagendra and others, u/s 107/116, Cr. P.C. P. S. Janshath (Muzaffarnagar) are hereby quashed and notices issued against the applicants are discharged.