Om Prakash Aroras, and Others vs The State of Bihar

Anand Prasad Sinha, J.—This application has been filed for quashing of a proceeding u/s 107 of the Code of Criminal procedure (hereinafter to be referred to as the Code) initiated on 19-3-1981 in case No. M-344 of 1981. Learned counsel appearing on behalf of the petitioners has submitted that the notice which is annexure--1 to the petition, does not contain the substance of accusation and that being so, the petitioners were unable to file effective show cause.

I find sufficient force in this contention. It would appear that the notice sent is extremely sketchy, without mentioning the substance of accusation and also the type of overt acts making basis for initiation of the proceeding. Under the circumstances, absolutely there is no compliance of section 111 of the Code at all.

In addition, the proceeding had been initiated in the year 1981, about five years back and thus it is extremely relevant for consideration as to whether the apprehension of the breach of the peace is still continuing. The basis of a proceeding u/s 107 of the Code is only apprehension of the breach of the peace. Under the circumtances it may be termed to be an urgent preventive measure and not punitive. Therefore, when the very basis of the proceeding is the apprehension of the breach of the peace and in absence of the apprehension, the proceeding in bound to fall down. When such proceeding continues for fairly a long time as is in this case, which is about five years and which can be said to be a too long period, the existence of the phenomenon of apprehension of the breach of the peace cannot be said to be normally existing and still continuing.

Absolutely, there is no courter affidavit or any assertion on behalf of the opposite party that such apprehension of the breach of the peace still continue. Thus, the apprehension of the breach of the peace which existed about five years back, does not appear to be continuing and if any proceeding u/s 107 of the Code is allowed to continue on the basis of an apprehension of the breach of the peace which existed about five years back or so, it would be, in my opinion, an abuse of the process of the court and, therefore, on this ground alone such proceeding deserves to be put to stop. Under the circumstances, this application is allowed and the proceedings in question is hereby quashed.