Allowed

Shams Tavrej v. State of U.P. and Another

Allahabad HC22 Jul 2021A482/5118/2021

Case brief

AI extract

What is this about?

A single judge exercised jurisdiction under Section 482 Cr.P.C. to quash a show cause notice issued under Section 110 Cr.P.C. by the SDM, Azamgarh. The court held the notice was patently illegal as it lacked full substance of police information and was issued on a routine printed format, violating mandatory provisions.

What did the court decide?

Impugned show cause notice dated 3.12.2020 is quashed. SDM, Azamgarh directed to issue fresh notice undertaking requisite exercise.

Shams Tavrej Vs State of U.P. and Another — Criminal Trial and Appeal | Allahabad HC (2021)

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Court No. - 81

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Case :- APPLICATION U/S 482 No. - 5118 of 2021

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Applicant :- Shams Tavrej Opposite Party :- State Of U.P. And Another Counsel for Applicant :- Rajesh Maurya Counsel for Opposite Party :- G.A.

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Hon'ble Shamim Ahmed,J.

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Heard learned counsel for the applicant, learned AGA and perused the record.

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By means of this application, applicant has prayed for quashing of the order dated 3.12.2020 passed by the S.D.M., Sadar, Azamgarh in case No. 54 of 2020, under Section 110 Cr.P.C. whereby a show cause notice was issued to the applicant to the effect that why he may not be required to furnish a personal bond of Rs. 50,000 and two sureties each in the like amount for maintaining peace and good conduct for a period of one year.

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It is contended by learned counsel for the applicant that impugned notice does not fulfill the requirements of mandatory provisions of Section 110 Cr.P.C., thus the notice is null and void and the proceedings before the learned Magistrate are a nullity and further the impugned notice is on a printed proforma in which gaps are filled and the substances of information received as set forth is wholly incomplete, vague and ambiguous. He further submits that the other persons against whom notice was issued, this Court had already allowed their applications.

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Feeling aggrieved by aforesaid notice dated 3.12.2020, applicant namely Shams Tavrej has now approached this Court by means of present application under section 482 Cr.P.C.

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Learned counsel for applicant contends that notice dated 3.12.2020, issued by Sub Divisional Magistrate, Sadar, Azamgar, is patently illegal. Same does not contain full particulars nor the full substance of Police Report, on the basis of which aforesaid notice has been issued. It is thus urged that impugned notice does not fullfil the requirement of Sections 110 Cr.P.C. In support of above, reliance is placed upon Baleshwar S/o Ram Saran and Others Vs. State of U.P., 2008 (63) ACC 374 , wherein a learned Single Judge has observed as follows in paragraphs 6, 7 and 8:

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"6. Having given my thoughtful consideration to the rival submissions made by parties Counsel and after going the impugned notice, I find force in the aforesaid contention of the learned Counsel for the applicants that the impugned notice is wholly illegal and void. Annexure 1 is the copy of the impugned notice, which was issued by SDM Mawana (Meerut) to the applicants, whereby they were called upon to appear on 10.12.2004 and show cause as to why they be not ordered to execute a personal bond for Rs. 30,000/- and furnish two sureties each in the like amount to keep peace for a period of one year. In this notice it is only mentioned by the SDM concerned that he is satisfied with the report of S.O. of P.S. Mawana that due to old litigation, there is enmity between the parties, due to which there is likelihood of the breach of peace. It is not mentioned in this notice that what type of litigation is going on between the parties and in which Court the said litigation is pending. Number of the case and other details of the said litigation have also not been mentioned in the impugned notice. As such the impugned notice issued by the learned SDM Mawana is vague and it does not fulfil the requirements of Section 111, Cr.P.C. This type of notice has been held to be illegal by this Court in the case of Ranjeet Kumar v. State of U.P. (supra).

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7. Making an order under Section 111 of the Code is not an idle formality. It should be clear on the face of the order under Section 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 under Section 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 under Section 111. This salutary provision has 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 under Section 107, Cr.P.C. are drawn.

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8. 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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Learned counsel for the applicant has placed further reliance upon judgments of this Court reported in 2004 (5) ACC 734 Aurangzeb and others Vs. State of U.P. and another, 2002 (45) ACC 627 Ranjeet Kumar and others Vs. State of U.P. and others and 2008 (61) ACC 540 Har Charan Vs. State of U.P. and another in support of his contention.

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In view of aforesaid, this Court has examined the impugned notice dated 3.12.2020, issued by Sub

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Divisional Magistrate, Sadar, Azamgarh under Sections 110 Cr.P.C. The Court finds that impugned notice contains a bare recital that there is apprehension of commission of cognizable offence. Impugned notice does not contain full substance of information given by concerned Police Officer. Consequently, concerned Magistrate has not acted judiciously while issuing the impugned notice dated 3.12.2020. The notice under Section 110 Cr.P.C. has been issued only on the basis of one case the impugned notice does not contain the substance of allegation which has been made against the applicant and has been issued in a routine manner on a printed format.

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In view of above, the impugned notice dated 3.12.2020, issued by Sub Divisional Magistrate, Sadar, Azamgarh, cannot be sustained. Accordingly, the same is liable to be quashed.

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Consequently, present application succeeds and is liable to be allowed . It is accordingly allowed. Impugned notice dated 3.12.2020 are quashed. Sub Divisional Magistrate, Sadar, Azamgarh, shall issue a fresh notice after undertaking requisite exercise in the light of observations made herein above and in accordance with law, if deem fit under the circumstances of the case.

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Order Date :- 22.7.2021 Ankita

Shams Tavrej v. State of U.P. and Another

Case brief

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Shams Tavrej v. State of U.P. and Another

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