Reyaj Alias Bauna Vs State of U.P. and 2 Others

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Court No. - 83 Case :- APPLICATION U/S 482 No. - 18039 of 2020 Applicant :- Reyaj Alias Bauna Opposite Party :- State Of U.P. And 2 Others Counsel for Applicant :- Dhirendra Kumar Srivastava Counsel for Opposite Party :- G.A.

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Hon'ble Ajay Bhanot,J.

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Heard Sri Dhirendra Kumar Srivastava, 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 show cause notice dated 21.09.2020 under Section 111 Cr.P.C. issued by Opposite party no. 2 against the applicant and stay the further proceedings of Criminal Case No. 32/2020, Under Section 110 Cr.P.C., Police Station Mirza Murad, District Varanasi, pending before the court of Opposite party no. 2."

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Learned counsel for the applicant Sri Dhirendra Kumar Srivastava, contends that the proceedings drawn against the applicant under Section 111 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, reported at 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 a printed proforma and lacks material particulars.

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Learned A.G.A. calls attention to the contents of the order to submit that the show cause notice reflects due application of mind.

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Heard learned counsel for the parties.

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The show cause notice dated 21.09.2020 at the outset references the chalani report dated 02.06.2020 submitted by the police authorities. The Chalani report records that the applicant is a strong man of the area, who is known for his notoriety. He wants to expand his influence by creating fear in the society. Regular complaints are being received against him. He has let loose a reign of terror in the village, and no individual is prepared to put his name to a complaint nor testify in a court of law against the applicant. His increasing criminal activities have created fear in the minds of the villagers. The noticing authority upon recording its agreement with the report of the police station incharge has taken out proceedings under Section 111 Cr.P.C. against the applicant.

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The provisions of Sections 110 and 111 of the Cr.P.C. are part of a larger statutory scheme for maintaining good public order. Due process has to be strictly followed in proceedings under the aforesaid chapter are taken out by the competent authorities. Fundamental rights of life and liberty assured to all citizens by the Constitution of India are directly engaged when proceedings are undertaken in violation of law. The competent authority taking out the aforesaid proceedings is required at all times to balance and co-relate the demands for keeping peace in the society with the imperative of protecting fundamental rights of life

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and liberty of the noticee. This is ensured by adopting a procedure that is compliant with norms of transparency and fair hearing.

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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 enunciated 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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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 were set out in a printed proforma. Hon'ble Ajit Kumar, J. held 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

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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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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 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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The stage is now set to return to the facts of the case. The details of the criminal cases on the foot of which the challani report was submitted and the current proceedings were drawn up are not disclosed in the show cause notice. The show cause notice 21.09.2020 lacks material particulars and is vague.

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The purpose of a show cause notice is to apprise the noticee of the particulars of the case against him and the material in support of the same. This enables a noticee to formulate and tender his defence effectively before the competent authority. A vague show cause notice will defeat its very purpose. The notice has clearly been issued in a mechanical manner and without due application of mind. In absence of material particulars of the case to

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which the noticee has to respond, the noticee will be disabled from making an effective defence of his case.

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In the wake of preceding discussion, the notice dated 21.09.2020 and the consequent proceedings set on foot in pursuance thereof are illegal and vitiated.

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The impugned show cause notice dated 21.09.2020 is liable to be set aside and is set aside.

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The Application U/S 482 Cr.P.C. is allowed.

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It is open to the authorities to take out fresh proceedings in accordance with law.

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Order Date :- 10.12.2020 Dhananjai

Reyaj Alias Bauna v. State of U.P. and 2 Others

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Reyaj Alias Bauna v. State of U.P. and 2 Others

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