Allahabad High Court

1. Heard learned counsel for the applicants and learned AGA for the State.

2. This application under Section 528 Bharatiya Nagarik Suraksha Sanhita (hereinafter referred to as BNSS) has been filed seeking following relief:- "It is, therefore, most respectfully prayed that this Hon'ble Court may graciously be pleased to allow this application and quash the impugned notice dated 31.07.2025, issued by Sub Divisional Magistrate Hasanpur, District-Amroha under Section 130/129(g) B.N.S.S. (arising out of Case Crime No. 221 of 2025), pending as case no.T20251338030 before Sub Divisional Magistrate Hasanpur, District-Amroha under Section 130/129(g) B.N.S.S. P.S.- Hasanpur, District- Amroha. It is, further prayed that effect and operation of impugned notice dated 31.07.2025, issued by Sub Divisional Magistrate Hasanpur, District-Amroha, under Section 130/129(g) B.N.S.S., P.S.-Hasanpur, District-Amroha (arising out of Case Crime No.221 of 2025), pending as case no.720251338030 before Sub Divisional Magistrate Hasanpur, District- Amroha, under Section 130/129(g) Β.N.S.S., P.S.- Hasanpur, District- Amroha may remain stayed during pendency of present application before this Hon'ble Court, otherwise both applicants shall suffer irreparable loss and injury."

3. It has been submitted by learned counsel for the applicants that learned Sub-Divisional Magistrate, Hasanpur, District-Amroha has issued impugned notice under Section 129(g) BNSS and that no necessary details regarding police report have been mentioned. Merely on the basis of registration of one case the applicants are 2 NA528 No. 34441 of 2025 being labelled as habitual offender. It was submitted that notice is against law and thus liable to be quashed. In this connection learned counsel has placed reliance upon case of Santosh Sharma @ Sonu Vs. State of UP and 2 others (Application under Section 482 Cr.P.C. No.10307 of 2022), decided on

21.07.2022.

4. Learned AGA has opposed the application and submitted that there is no illegality or perversity in the impugned notice.

5. In the instant matter perusal of record shows that in the impugned notice it has been mentioned that applicants are habitual offender and it is not desirable to let them free. Thus, in the impugned notice only a general and vague averment has been made that applicants are habitual offender. In case of Bhim Sain Tyagi Vs. State of U.P. and others, reported in 1999 (39) ACC 321 in respect of notice issued under U.P. Control of Goondas Act 1970, after discussing the matter in detail, Five Judges Bench of this Court observed in para-25 as under:- "25.................... a show cause notice which fails to indicate general nature of material allegations may be challenged and quashed by this Court under Article 226 of the Constitution of India....................." Thus even a show cause notice can be challenged if it does not disclose the general nature of material allegations, i.e., substance of information received."

6. In case of Santosh Sharma @ Sonu (supra), this Court has held as under:- "In the present matter, the substance of information which was received by the SDM concerned has not been mentioned in the impugned notice dated 18.2.2022 therefore, it is apparent that he failed to follow the manner and procedure prescribed under Section 111 Cr.P.C. and therefore, from this angle itself the impugned notice dated 18.2.2022Â is unsustainable. Further, there is another angle too, as substance of information received by the Magistrate through chalani report has not been mentioned in the notice dated 18.2.2022, therefore, this fact itself renders the impugned notice illegal as the impugned notice is a show cause one and therefore, the person against whom notice was issued, he must know the ground for apprehending hazardous to the community. Therefore, it is obligatory that the Magistrate while issuing notice under Sections 107, 110 and 111 Cr.P.C. must give proper notice of what has moved him to take the action, i.e., substance of information received 3 NA528 No. 34441 of 2025 must take place in the notice issued by him which is totally missing in the present matter. The result of not mentioning the substance of the information received was of two fold:- (a) applicant was unable to reply the impugned show cause notice dated 18.2.2022 as general nature of material allegations, i.e., substance of information received was missing (b) substance of the information received was the foundation of the notice issued under Sections 110/111 Cr.P.C. as it satisfies the judicial mind of the Magistrate and compel him to take action against the applicant under the said provisions of Cr.P.C., therefore, it means learned SDM failed to apply its judicial mind Therefore, from the above discussion, it is crystal clear that issuance of show cause notice under Sections 110/111 Cr.P.C. is not a mere formality and it is necessary for the Magistrate concerned to follow the procedure prescribed under Sections 110/111 Cr.P.C. at the time of issuing it. In the case at hand indisputably while issuing notice dated 18.2.2022 the SDM concerned failed to follow the procedure. He failed to note down the substance of the information received by him through police chalani report which was necessary as per Sections 110/111 Cr.P.C. Further, applicant was labelled as habitual offender and so desperate and dangerous as to render his being at large without security hazardous to the community merely on the basis of a beat information and a case under Sections 323, 504 and 506 IPC, therefore, the approach of SDM Concerned was most casual one and he failed to apply his judicial mind as it is not possible to believe that on the basis of such information a rigorous inference could be drawn against the applicant that he is having such a habit that he will surely commit such offence which is dangerous for the community."

7. In case of Shivam Agrahari Vs. State of UP and 2 others 2024:AHC:34598, this Court has held as under:- "13. The necessary ingredients for invoking provisions under Section 110 of Cr.P.C. is that the quality of the information received should be of such a nature that from mere perusal of the same it can be determined that the person concerned is desperate and dangerous so as to render his being at large without security, hazardous to the community. It is a pre-condition with regard to the material before the police which should be of such quality as stated in Section 110(g) of Cr.P.C. so as to lead the Magistrate to invoke the powers under the said section. If the material before the Magistrate does not fulfill the qualifications as stated in Section 110(g) of Cr.P.C. then the Magistrate would not have any jurisdiction to even send a notice. In this regard, the issuance of notice is a jurisdictional notice and the Magistrate can arrogate powers under Section 110(g) Cr.P.C. and proceed further only when the condition therein are fulfilled.

14. The foundation of jurisdiction for action under Section 110(g) Cr.P.C. is credible information from a police officer or a private person. Prior to the initiation of proceedings under Section 110 Cr.P.C., information must be given against a person from whom it is sought to take security. The condition precedent of taking security is that the Magistrate should be informed that some person is desperate and dangerous, likely to commit a breach of the peace or disturb the public tranquility or to do some wrongful act that may probably occasion a breach of the peace or disturb the public tranquility. The law provides for a proceedings under Section 110 Cr.P.C., being comments on information received, if in the opinion of the Magistrate there is sufficient ground for a proceeding. The Magistrate has to satisfy himself that a person is likely to commit a breach of the peace or disturb the public tranquility as mentioned in Section 110 Cr.P.C. before taking action.

15. Section 110 Cr.P.C., does not give a discretion to the Magistrate in the sense that he "may" require the person to show cause. But when he does exercise that discretion and does decide that he will issue a notice to show cause, then that notice to show cause must be a notice which satisfies the requirements of Section 111 Cr.P.C. Persons who are sought to be bound over to keep the peace should be given an opportunity to show cause and all the procedure laid down in Chapter VIII should be followed. Therefore, an order directing certain persons to enter into a recognizance is not proper and legal, if the parties were not 4 NA528 No. 34441 of 2025 summoned to show cause as to why they should not be required to enter into a bond to keep the peace.

16. For taking action under Section 110(g) Cr.P.C., the manner provided is clearly laid down under Section 111 Cr.P.C. Issue of a preliminary notice to show cause apart from what is provided in Section 111 Cr.P.C. does not appear to be justified. Before the Magistrate two courses are open. If he is satisfied on report on information, he will immediately draw up a proceedings under Section 110 Cr.P.C., but if he is not satisfied, then he will not take any action and leave the matter as it is. The Magistrate has to follow the prescribed procedure, and the Magistrate cannot discover a manner of his own because manner provided is clearly laid down under Section 111 Cr.P.C. If the prescribed manner is not followed, the proceedings cannot be sustained."

8. The provisions of Section 110(g) Cr.P.C. have been reincarnated in Section 129(g) BNSS. As stated above neither the details of police report nor any specific details have been mentioned in the impugned notice to invoke provisions of Section 110(g) Cr.P.C. Thus, when the impugned notice is examined at the touchstone of law as stated above, it is clear that impugned notice is not in accordance with law and thus, liable to be quashed.

9. Accordingly, the impugned notice dated 31.07.2025, annexed in annexure no.3 to this application, is hereby quashed. However, it would be open to the concerned Magistrate to pass a fresh order in accordance with law.

10. The application under Section 528 BNSS is allowed in above terms. September 24, 2025 'SP'/- (Raj Beer Singh,J.)

1. Heard learned counsel for the applicants and learned AGA for the State.

2. This application under Section 528 Bharatiya Nagarik Suraksha Sanhita (hereinafter referred to as BNSS) has been filed seeking following relief:- "It is, therefore, most respectfully prayed that this Hon'ble Court may graciously be pleased to allow this application and quash the impugned notice dated 31.07.2025, issued by Sub Divisional Magistrate Hasanpur, District-Amroha under Section 130/129(g) B.N.S.S. (arising out of Case Crime No. 221 of 2025), pending as case no.T20251338030 before Sub Divisional Magistrate Hasanpur, District-Amroha under Section 130/129(g) B.N.S.S. P.S.- Hasanpur, District- Amroha. It is, further prayed that effect and operation of impugned notice dated 31.07.2025, issued by Sub Divisional Magistrate Hasanpur, District-Amroha, under Section 130/129(g) B.N.S.S., P.S.-Hasanpur, District-Amroha (arising out of Case Crime No.221 of 2025), pending as case no.720251338030 before Sub Divisional Magistrate Hasanpur, District- Amroha, under Section 130/129(g) Β.N.S.S., P.S.- Hasanpur, District- Amroha may remain stayed during pendency of present application before this Hon'ble Court, otherwise both applicants shall suffer irreparable loss and injury."

3. It has been submitted by learned counsel for the applicants that learned Sub-Divisional Magistrate, Hasanpur, District-Amroha has issued impugned notice under Section 129(g) BNSS and that no necessary details regarding police report have been mentioned. Merely on the basis of registration of one case the applicants are 2 NA528 No. 34441 of 2025 being labelled as habitual offender. It was submitted that notice is against law and thus liable to be quashed. In this connection learned counsel has placed reliance upon case of Santosh Sharma @ Sonu Vs. State of UP and 2 others (Application under Section 482 Cr.P.C. No.10307 of 2022), decided on

21.07.2022.

4. Learned AGA has opposed the application and submitted that there is no illegality or perversity in the impugned notice.

5. In the instant matter perusal of record shows that in the impugned notice it has been mentioned that applicants are habitual offender and it is not desirable to let them free. Thus, in the impugned notice only a general and vague averment has been made that applicants are habitual offender. In case of Bhim Sain Tyagi Vs. State of U.P. and others, reported in 1999 (39) ACC 321 in respect of notice issued under U.P. Control of Goondas Act 1970, after discussing the matter in detail, Five Judges Bench of this Court observed in para-25 as under:- "25.................... a show cause notice which fails to indicate general nature of material allegations may be challenged and quashed by this Court under Article 226 of the Constitution of India....................." Thus even a show cause notice can be challenged if it does not disclose the general nature of material allegations, i.e., substance of information received."

6. In case of Santosh Sharma @ Sonu (supra), this Court has held as under:- "In the present matter, the substance of information which was received by the SDM concerned has not been mentioned in the impugned notice dated 18.2.2022 therefore, it is apparent that he failed to follow the manner and procedure prescribed under Section 111 Cr.P.C. and therefore, from this angle itself the impugned notice dated 18.2.2022Â is unsustainable. Further, there is another angle too, as substance of information received by the Magistrate through chalani report has not been mentioned in the notice dated 18.2.2022, therefore, this fact itself renders the impugned notice illegal as the impugned notice is a show cause one and therefore, the person against whom notice was issued, he must know the ground for apprehending hazardous to the community. Therefore, it is obligatory that the Magistrate while issuing notice under Sections 107, 110 and 111 Cr.P.C. must give proper notice of what has moved him to take the action, i.e., substance of information received 3 NA528 No. 34441 of 2025 must take place in the notice issued by him which is totally missing in the present matter. The result of not mentioning the substance of the information received was of two fold:- (a) applicant was unable to reply the impugned show cause notice dated 18.2.2022 as general nature of material allegations, i.e., substance of information received was missing (b) substance of the information received was the foundation of the notice issued under Sections 110/111 Cr.P.C. as it satisfies the judicial mind of the Magistrate and compel him to take action against the applicant under the said provisions of Cr.P.C., therefore, it means learned SDM failed to apply its judicial mind Therefore, from the above discussion, it is crystal clear that issuance of show cause notice under Sections 110/111 Cr.P.C. is not a mere formality and it is necessary for the Magistrate concerned to follow the procedure prescribed under Sections 110/111 Cr.P.C. at the time of issuing it. In the case at hand indisputably while issuing notice dated 18.2.2022 the SDM concerned failed to follow the procedure. He failed to note down the substance of the information received by him through police chalani report which was necessary as per Sections 110/111 Cr.P.C. Further, applicant was labelled as habitual offender and so desperate and dangerous as to render his being at large without security hazardous to the community merely on the basis of a beat information and a case under Sections 323, 504 and 506 IPC, therefore, the approach of SDM Concerned was most casual one and he failed to apply his judicial mind as it is not possible to believe that on the basis of such information a rigorous inference could be drawn against the applicant that he is having such a habit that he will surely commit such offence which is dangerous for the community."

7. In case of Shivam Agrahari Vs. State of UP and 2 others 2024:AHC:34598, this Court has held as under:- "13. The necessary ingredients for invoking provisions under Section 110 of Cr.P.C. is that the quality of the information received should be of such a nature that from mere perusal of the same it can be determined that the person concerned is desperate and dangerous so as to render his being at large without security, hazardous to the community. It is a pre-condition with regard to the material before the police which should be of such quality as stated in Section 110(g) of Cr.P.C. so as to lead the Magistrate to invoke the powers under the said section. If the material before the Magistrate does not fulfill the qualifications as stated in Section 110(g) of Cr.P.C. then the Magistrate would not have any jurisdiction to even send a notice. In this regard, the issuance of notice is a jurisdictional notice and the Magistrate can arrogate powers under Section 110(g) Cr.P.C. and proceed further only when the condition therein are fulfilled.

14. The foundation of jurisdiction for action under Section 110(g) Cr.P.C. is credible information from a police officer or a private person. Prior to the initiation of proceedings under Section 110 Cr.P.C., information must be given against a person from whom it is sought to take security. The condition precedent of taking security is that the Magistrate should be informed that some person is desperate and dangerous, likely to commit a breach of the peace or disturb the public tranquility or to do some wrongful act that may probably occasion a breach of the peace or disturb the public tranquility. The law provides for a proceedings under Section 110 Cr.P.C., being comments on information received, if in the opinion of the Magistrate there is sufficient ground for a proceeding. The Magistrate has to satisfy himself that a person is likely to commit a breach of the peace or disturb the public tranquility as mentioned in Section 110 Cr.P.C. before taking action.

15. Section 110 Cr.P.C., does not give a discretion to the Magistrate in the sense that he "may" require the person to show cause. But when he does exercise that discretion and does decide that he will issue a notice to show cause, then that notice to show cause must be a notice which satisfies the requirements of Section 111 Cr.P.C. Persons who are sought to be bound over to keep the peace should be given an opportunity to show cause and all the procedure laid down in Chapter VIII should be followed. Therefore, an order directing certain persons to enter into a recognizance is not proper and legal, if the parties were not 4 NA528 No. 34441 of 2025 summoned to show cause as to why they should not be required to enter into a bond to keep the peace.

16. For taking action under Section 110(g) Cr.P.C., the manner provided is clearly laid down under Section 111 Cr.P.C. Issue of a preliminary notice to show cause apart from what is provided in Section 111 Cr.P.C. does not appear to be justified. Before the Magistrate two courses are open. If he is satisfied on report on information, he will immediately draw up a proceedings under Section 110 Cr.P.C., but if he is not satisfied, then he will not take any action and leave the matter as it is. The Magistrate has to follow the prescribed procedure, and the Magistrate cannot discover a manner of his own because manner provided is clearly laid down under Section 111 Cr.P.C. If the prescribed manner is not followed, the proceedings cannot be sustained."

8. The provisions of Section 110(g) Cr.P.C. have been reincarnated in Section 129(g) BNSS. As stated above neither the details of police report nor any specific details have been mentioned in the impugned notice to invoke provisions of Section 110(g) Cr.P.C. Thus, when the impugned notice is examined at the touchstone of law as stated above, it is clear that impugned notice is not in accordance with law and thus, liable to be quashed.

9. Accordingly, the impugned notice dated 31.07.2025, annexed in annexure no.3 to this application, is hereby quashed. However, it would be open to the concerned Magistrate to pass a fresh order in accordance with law.

10. The application under Section 528 BNSS is allowed in above terms. September 24, 2025 'SP'/- (Raj Beer Singh,J.)