Naresh Kumar Jain and Another vs State of U.P. and Others

Virendra Saran, J.—I have heard Sri Tej Pal, learned Counsel for the Petitioners and learned Standing Counsel who both agree that the writ petition may be finally disposed of.

An order purporting to be u/s 111 Code of Criminal Procedure was made by the learned Additional City Magistrate Ist., Agra on 26-11-1992 asking the Petitioners to show cause why they may not be required to furnish a personal bond of Rs. 2,000/- and two sureties, each in the like amount for keeping peace for a period of one year. A photo copy of the order has been annexed as Annexure-4 to the writ petition. On the basis of this order proceedings u/s 107/116 of the Code were Initiated against the Petitioners who challenged the order of the learned Magistrate by filing Criminal Revision No. 595 of 1992 in the court of Sessions but their revision was also dismissed by the learned VIII Additional District & Sessions Judge, Agra on 11-1-1993. The Petitioners have not approached this Court praying that the order passed by the learned Magistrate as well as the entire proceedings of the case be quashed.

Learned Counsel for the Petitioners has invited my attention to the order made by the learned Magistrate u/s 111 Code of Criminal Procedure. It has been submitted by the learned Counsel that the above order is bad in law and a such the learned Magistrate could not assume jurisdiction to proceed u/s 107 Code of Criminal Procedure The learned Counsel has invited my attention to one of my earlier decisions given in Criminal Misc. Application No. 13541 of 1992 Siya Nand Tyagi v. The State of U.P. decided on 20-10-92. Learned Counsel for the Petitioners has invited the attention of the court to the order u/s 111 of the Code passed In the present case. The order is on a cyclostyled proforma with certain blanks which have been filled In with pen and ink by some one and simply installed by the Additional City Magistrate Ist, Agra. In the case of Siya Nand Tyagi v. The State of U.P. (supra) It was observed:

It is unfortunate that the requirement of Section 107 of the Code that the Executive Magistrate receiving information should be of the opinion that there are sufficient grounds for proceedings under the said Section have become a dead letter and are always followed in its breach. It should be borne in mind that the proceedings u/s 107/116 of the Code some time cause irreparable loss and unnecessary harassment to the public who run to the court at the cost of their own vocations of life. Unless it is absolutely necessary proceedings u/s 107/116 Code of Criminal Procedure should not be resorted to. Experience tells that proceedings like the one u/s 107/116 of the Code are conducted in a most lethargic and lackadaisical manner by the learned Executive Magistrates causing harassment to public beyond measure.

The order made u/s 111 in the present case does not at all disclose the substance of Information received by the Magistrate. The order has been passed in a most mechanical manner. In the case of Madhu Limaye Vs. Sub-Divisional Magistrate, Monghyr and Others, , the Supreme Court laid down that it is not open to the Magistrate to substantially depart from the mandatory provisions of Section 111. The Supreme Court observed:

We have seen the provisions of Section 107. That Section says that action is to be taken in the manner bere-in-after 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 behooves 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 the public order or in the interest of the general public.

In this very case the Supreme Court emphasised that a person who is proceeded against must know the grounds of apprehending or a breach of peace or disturbance of public tranquility at his hands. The Supreme Court observed:

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 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 pronouncements of this Court as also the pronouncements 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 VIII 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.

The writ petition is hereby allowed. The order u/s 111 Code of Criminal Procedure dated 26-11-1992 passed In Case No. 355 of 1992 State v. Naresh Chand Jain, and Anr., passed u/s 107/116 Code of Criminal Procedure as confirmed by the order dated 11-1-1993 passed by Sri Udai Chandra, VIII Additional District & Sessions Judge, Apra in Criminal Revision No. 595 of 1992 is quashed and the proceedings of the case are also quashed.