Arvind Yadav Vs State of U.P. and 2 Others

Neutral Citation No. - 2023:AHC:127486

Court No. - 75

Case :- APPLICATION U/S 482 No. - 21211 of 2023

Applicant :- Arvind Yadav Opposite Party :- State Of U.P. And 2 Others Counsel for Applicant :- Awadesh Tiwari,Gunjan Tiwari Counsel for Opposite Party :- G.A.

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Hon'ble Rajeev Misra,J.

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Heard the learned counsel for applicant and the learned A.G.A. for State.

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Perused the record.

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This application under Section 482 Cr.P.C. has been filed challenging the notice dated 23.11.2022 issued by opposite party2, Sub-Divisional Magistrate, Sadar, District Ballia in Case No. 621 of 2022 (State Vs. Arvind Yadav) under Sections- 110(g) Cr.P.C., Police Station- Bansdeeh Road, District- Ballia.

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Record shows that police of Police Station- Bansdeeh Road, District- Ballia submitted a challan report dated 08.11.2022 against applicant-Arvind Yadav, whereby applicant has been challaned under section 110 (g) Cr.P.C. It is alleged in aforesaid report that applicant is a habitual offender. On account of conduct of applicant, there is eminent fear in the mind of public. A report bearing Report No. 39 was given by police man. Thus, it is desirable that such a person should not be allowed to roam freely. In order to prevent same, applicant is being challaned under section 110 Cr.P.C. In the interest of Justice, requisite amount of personal bond and surety bond be obtained from applicant to bind him.

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After aforesaid report was forwarded by S.H.O. Police StationBansdeeh Road, District- Ballia, Sub Divisional Magistrate, Sadar, Ballia issued notice dated 23.11.2022, under sections 110(g) Cr.P.C asking applicant to furnish personal bond of Rs.50,000/- and two sureties of the same amount to ensure good conduct of applicant.

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Feeling aggrieved by aforesaid notice dated 23.11.2022, applicant-Arvind Yadav 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 23.11.2022, issued by Sub Divisional Magistrate, Sadar, Ballia, 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 Section 111 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 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

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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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In view of aforesaid, Court has examined the impugned notice dated 23.11.2022, issued by Sub Divisional Magistrate, Sadar, Ballia under sections 110(g) Cr.P.C. The Court finds that impugned notice contains a bald recital that there is apprehension of commission of cognizable offence. Impugned notice does not contain full substance of information given by concerned Police Officer or the material on the basis of which Sub-Divisional Magistrate, Sadar, Ballia arrived at prima-facie satisfaction for

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issuing the impugned notice. Consequently, concerned Magistrate has not acted judiciously while issuing the impugned notice dated 23.11.2022.

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Consequently, the impugned notice dated 23.11.2022, issued by Sub Divisional Magistrate, Sadar Ballia, cannot be sustained. Same is liable to be quashed by this Court.

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Accordingly, present application succeeds and is liable to be allowed .

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It is accordingly allowed .

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Impugned notice dated 23.11.2022 is quashed. Sub Divisional Magistrate, Sadar, Ballia, shall issue a fresh notice after undertaking requisite exercise in the light of observations made herein above.

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Order Date :- 13.6.2023 YK

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Digitally signed by :- YASHWANT KUMAR High Court of Judicature at Allahabad

Arvind Yadav v. State of U.P. and 2 Others

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