Allowed

Kanhaiya v. State of U.P. and 3 Others

Allahabad HC1 Dec 2020A482/17006/2020

Case brief

AI extract

What is this about?

The High Court quashed a preventive custody notice under Sections 107/111/116 Cr.P.C. issued via a standard printed proforma. The court held the authority failed to apply its mind and the notice lacked material particulars, violating due process mandates established in Supreme Court and High Court precedents.

What did the court decide?

The notice dated 23.09.2020 and the proceedings under Sections 107/111/116 Cr.P.C. were set aside as arbitrary and illegal.

Kanhaiya Vs State of U.P. and 3 Others — Civil Procedure and Limitation | Allahabad HC (2020)

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Court No. - 83

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Case :- APPLICATION U/S 482 No. - 17006 of 2020

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Applicant :- Kanhaiya Opposite Party :- State Of U.P. And 3 Others Counsel for Applicant :- Kuber Singh Yadav Counsel for Opposite Party :- G.A.

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Hon'ble Ajay Bhanot,J.

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Heard Sri Kuber Singh Yadav, learned counsel for the applicant and learned A.G.A for the State.

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This application under Section 482 Cr.P.C has been filed seeking the following reliefs:

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"quash the impugned notice dated 23.09.2020 (Annexure No. 2) send by Sub-Divisional Magistrate, Sadar, District- Azamgarh in relation to Case No. 1494 of 2020 under sections 107/111/116 of Cr.P.C. (State of U.P. versus Kanhaiya) PoliceStation-Mubarakpur, District- Azamgarh."

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Learned counsel for the applicant Sri Kuber Singh Yadav contends that the proceedings drawn against the applicant under Sections 107, 111 and 116 Cr.P.C do not disclose application of mind and have been taken out in the teeth of law laid down by the Hon'ble Supreme Court in Madhu Limaye v. S.D.M. Mongyr, 1971 CRI. L.J. 1720 , and this Court in Mohan Lal Vs. State of U.P reported at 1977 All Cri C 333, Siya Nand Tyagi v. State of U.P. reported at 1994 Cri. LJ 1298 and an unreported judgment in the case of Abhishek Malviya and another Vs. State of U.P. in Application U/S 482 Cr.P.C No. 9941 of 2019 . He further contends that the notice has been issued against the applicant in printed proforma.

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Learned A.G.A could not dispute the aforesaid submissions.

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Heard learned counsel for the parties.

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The notice dated 22.9.2020 taken out against the applicant in proceedings under Sections 107, 111 and 116 Cr.P.C has been issued in a printed proforma. The proforma discloses a premeditated mind set of the noticing authority. This forecloses an independent enquiry into the matter. The proforma, in particular, references that a group was formed by applicant.

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However, the blanks in the aforesaid columns have not been filled in. The order thereafter references that breach of peace has happened in a land dispute. The details of the parcel of land, the parties amongst whom the dispute has arisen has not been disclosed. The show cause notice is vague and lacks material particulars. On account of such defects in the show cause notice the applicant is disabled from tendering full defence of his case. The show cause notice has to disclose full material particulars of the case against the applicant in regard to which he has to offer his defence.

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The discussion can profit from the cases in point which have been cited by the learned counsel for the applicant.

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Hon'ble Supreme Court in Madhu Limaye v. S.D.M. Mongyr (supra) while construing the provision delineated the details required to be reflected in a show cause notice by holding thus:

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"We have seen the provisions of Section 107. That section says that action is to be taken in the manner here-in-after provided and this clearly indicate 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 curtaided 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."

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"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."

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This Court in Siya Nand Tyagi v. State of U.P. (supra) has cautioned against a mechanical approach adopted by authorities in proceedings under Sections 107/116 Cr.P.C:

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"3. 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 Under Section 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 Under Section 107/116, Cr. P.C. should not be resorted to experience tells that proceedings like the one under Section 107/116 of the Code are conducted in a most lethargic and lackadaisical manner by the learned Executive Magistrate causing harassment to public beyond measure.

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4. 107 is aimed at a person who causes reasonable apprehension of conduct likely to lead to apprehension of breach of peace or a disturbance of public tranquillity. It is a preventive measure. Proceedings under Section 107/116 should not be transformed into persecution of innocent persons at the sweet will of the police or other persons acting mala fide ."

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In Abhishek Malviya (supra) this Court set its face against proceedings being triggered under Sections 107, 116 and 117 Cr.P.C after noticing the charges in a printed proforma, and holding thus:

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"The notice/ order is in the printed form and the blank spaces have been filled in printed format. This shows that the printed format is always available with the City Magistrate, Gorakhpur in the matters where the action is required under Section 107/116 of the Code of Criminal Procedure.

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On a pointed query being made to the learned Additional Government Advocate, he could also not justify the notice.

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In the considered opinion of the Court, when the law requires the Magistrate to apply his mind, then there has to be a due application of mind. The manner in which the notice has been issued, it clearly transpires that it has been filled by some group of the office of the City Magistrate, and thereafter he put his signatures and the notice has got issued. This practice is reprimanded. It is expected that the City Magistrate, shall apply his mind as required in law before issuing notice under Section 111 for taking appropriate action under Section 107/116 of the Code of Criminal Procedure.

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7. In the present case the learned Sub-Divisional Magistrate has thrown the mandatory provisions of Section 111 of the Code to the winds and has prepared a printed pro forma. The learned Magistrate has also not recorded his opinion that there existed

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sufficient grounds to take action under the provisions of Section 107 of the Code."

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In view of the above, the notice/ order issued/ passed by the City Magistrate, Gorakhpur and the entire proceedings of Criminal Case No. 1005 of 2019, State v. Abhishek Malviya and Smt. Jaishree Malviya, under Sections 107/116 Cr.P.C.is hereby quashed."

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Accordingly, the application u/s 482, is allowed."

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In the wake of preceding discussion as well as authorities discussed earlier, proceedings are clearly vitiated.

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The order notice dated 23.09.2020 is arbitrary and illegal.

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The impugned notice dated 23.09.2020 is liable to be set aside and is set aside.

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The application is allowed.

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It is open for the authorities to proceed in accordance with law. Order Date :- 1.12.2020/Nadeem Ahmad

Kanhaiya v. State of U.P. and 3 Others

Case brief

What is this about?

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Kanhaiya v. State of U.P. and 3 Others

Case brief

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