High Court
Case Details
Court No. - 89 Case :- APPLICATION U/S 482 No. - 21675 of 2022 Applicant :- Madhav Singh Opposite Party :- State of U.P. and Another Counsel for Applicant :- Dharmendra Singh Counsel for Opposite Party :- G.A. Hon'ble Sameer Jain,J.
Decision
Learned AGA does not propose to file counter affidavit and submitted that application may be heard and disposed of finally. Heard Sri Dharmendra Singh, learned counsel for the applicant and Sri Ravi Kant Kushwaha, learned AGA for the State. By way of present application, applicant made a prayer to quash the order dated 17.05.2022 passed by Sessions Judge, Mathura in Criminal Revision No 242 of 2022 as well as order dated 16.10.2021 passed by the Sub Divisional Magistrate, Goverdhan, Mathura on the notice under Section 111 Cr.P.C. dated 16.10.2021, Police Station Magorra, District Mathura. Learned counsel for the applicant submitted that applicant is respectable citizen of the society and without any reasonable cause he was challaned by the police on 03.10.2021 under Section 107 Cr.P.C. and on the basis of police challani report notice under Section 111 Cr.P.C. was issued against him by the SDM concerned and when he challenged the notice dated 16.10.2021 before the session court in criminal revision, then his revision was dismissed on 17.05.2022. Learned counsel for the applicant submitted that notice dated 16.10.2021 is illegal and is not in accordance with law and not even material allegation of general nature has been disclosed in it, therefore, it is not possible for applicant to reply the same. He placed reliance on the judgement of the co-ordinate Bench of this Court in the case of Ram Ajor and others Vs. State of U.P. and others passed in Application U/S 482 Cr.P.C. No. 5412 of 2021. He further submitted that it is mandatory requirement for the Magistrate concerned while issuing show cause notice under Section 111 Cr.P.C. to mention substance of the information received which is missing in this case. He next submitted that as substance of the information in the impugned show cause notice dated 16.10.2021 is missing, therefore, applicant is not in a position to give any reply of the same, therefore, order/notice dated 16.10.2021 issued against the applicant under Section 111 Cr.P.C. is bad and similarly lower revisional court also did not consider this legal aspect and dismissed the revision of the applicant and thus committed illegality, therefore, order dated 16.10.2021 and 17.05.2022 both are illegal and are liable to be quashed. Per contra, learned AGA submitted that it is only a show cause notice, therefore, applicant can very well approach the SDM concerned and give reply of the same but he could not dispute the fact that notice issued to applicant under Section 111 Cr.P.C. is not in accordance with law and substance of the information received has not been mentioned in it. I have heard both the parties and perused the record of the case. From the perusal of the record, it appears that the impugned notice dated 16.10.2021 issued against the applicant under Section 111 Cr.P.C. on the basis of police/challani report dated 03.10.2021 under Section 107 Cr.P.C. against the applicant but from the perusal of the impugned notice dated 16.10.2021 issued by the SDM concerned under Section 111 Cr.P.C., it appears that the substance of the information received has not been mentioned in it, which is mandatory requirement as per section 111 Cr.P.C. Section 111 Cr.P.C. runs as follows:- "111. Order to be made. When a Magistrate acting under section 107, section 108, section 109 or section 110, deems it necessary to require any person to show cause under such section, he shall make an order in writing, setting forth the substance of the information received, the amount of the bond to be executed, the term for which it is to be in force, and the number, character and class of sureties (if any) required." As in the impugned notice dated 16.10.2021 substance of the information received is missing, therefore, applicant is not in position to give any reply to the SDM concerned, therefore, notice prima facie appears to be illegal. The Constitution Bench of the Apex Court in the case of Madhu Limaye Vs. Sub-Divisional Magistrate, Monghyr and others 1970 (3) SCC 746 categorically observed that if notice issued under Section 112 Cr.P.C. 1898 (See 111 Cr.P.C. 1973) does not disclose substance of information then it deprived the person against whom it is issued to give reply as it is not possible for him to approach the Magistrate concerned for the purpose to give reply, therefore, such notice was held illegal. The argument advanced by learned AGA that the impugned notice is show cause notice, therefore, applicant can approach the SDM concerned is not sustainable as impugned notice even does not disclosing the material allegation of general nature and substance of information, therefore, it is not possible for the applicant to give reply of the same. Further, the Full Bench of this Court in the case of Bhim Sain Tyagi Vs. The State of U.P. and others (1999) 39 ACC 321 (FB) observed that a show cause notice can also be challenged before this Court if the allegation of general nature is missing in it. In view of the above, I am of the considered view that impugned notice dated 16.10.2021 is not in accordance with law and is illegal as it has been issued in most casual and perfunctory manner. Consequently, the order passed by the lower revisional court is also not in accordance with law as lower revisional court also failed to consider this legal aspect, therefore, order dated 17.05.2022 passed by lower revisional court is also illegal. In view of above discussion, I find merit in the argument advanced by learned counsel for the applicant, therefore, instant application moved on behalf of the applicant is allowed and impugned notice dated 16.10.2021 and order dated 17.05.2022 are hereby quashed. Order Date :- 15.9.2022 AK Pandey Digitally signed by ANUPAM KUMAR PANDEY Date: 2022.09.23 10:19:13 IST Reason: Location: High Court of Judicature at Allahabad