Kaushar Alias Mohd Kaushar Khan vs Party(s)

1. Heard learned counsel for the applicant 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 kindly be pleased to allow the present application and quash / set-aside the impugned notice dated 03.07.2025 (State Vs. Kaushar) U/s 129/g of B.N.S.S., 2023, issued by the respondent no. 2 / Sub-Divisional Magistrate / Pargana Magistrate, Garhmukteshwar, District Hapur. It is also further prayed that this Hon'ble Court may kindly be pleased to stay the effect and operation of the impugned notice dated 03.07.2025 (State Vs. Kaushar) issued by the respondent no. 2/Sub-Divisional Magistrate / Pargana Magistrate, Garhmukteshwar, District Hapur U/s 129/g of B.N.S.S., 2023 during the pendency of the present application, otherwise the applicant shall suffer irreparable loss and injury. And/or pass such other and further order as this Hon'ble Court may deem fit and proper in the circumstances of the case."

3. It has been submitted by learned counsel for the applicant that learned Sub-Divisional Magistrate, Garhmukteshwar has issued impugned notice under Section 129(g) BNSS in a printed proforma. It was stated that no necessary details regarding dispute or police report have been mentioned in the said notice and merely name and address of applicant has been filled in the printed proforma. 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. 2 NA528 No. 28936 of 2025

5. In the instant matter perusal of record shows that the impugned notice is on a printed proforma and merely name and other details of applicant were filled in the said printed proforma. In the said notice only a general and vague averment has been made that applicant is a hard core criminal and he habitually involves himself in commission of crime and that he is leading his life on the basis of property acquired illegally. 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:- "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:- "Further, the impugned notice dated 18.2.2022 does not even disclose material particulars of general allegations. As per Section 111 Cr.P.C. it is necessary for the Magistrate concerned while issuing notice under Section 111 Cr.P.C. to give substance of information received by him. This important ingredient is completely missing in the impugned notice dated 18.2.2022. Section 110 Cr.P.C. clearly says that a Magistrate may, in the manner, here-in-after provided, require such persons to show cause why he should not be ordered to execute a bond with sureties for his good behaviour for such period not exceeding three years as the Magistrate thinks fit. The Phrase "in the manner here-in-after provided" is significant. It means the manner provided under Sections 111 Cr.P.C. must be followed."

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 3 NA528 No. 28936 of 2025 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 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.

17. The notice having been issued on printed performa clearly indicates the non-application of mind by the Magistrate while issuing the notice U/S 110(g) Cr.P.C. Further even as per the police report clearly indicates absence of any relevant cogent material to invoke power U/S 110 (g) Cr.P.C."

8. Thus, it is apparent from aforesaid case law that a notice, which has been issued on a printed proforma, indicates non-application of mind by the Magistrate, while issuing process under Section 110(g) Cr.P.C. The provisions of Section 110(g) Cr.P.C. have been reincarnated in Section 129(g) BNSS. Further, as stated above neither the 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 03.07.2025 annexed as 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. August 23, 2025 'SP'/- (Raj Beer Singh,J.) SANDEEP PAL High Court of Judicature at Allahabad

1. Heard learned counsel for the applicant 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 kindly be pleased to allow the present application and quash / set-aside the impugned notice dated 03.07.2025 (State Vs. Kaushar) U/s 129/g of B.N.S.S., 2023, issued by the respondent no. 2 / Sub-Divisional Magistrate / Pargana Magistrate, Garhmukteshwar, District Hapur. It is also further prayed that this Hon'ble Court may kindly be pleased to stay the effect and operation of the impugned notice dated 03.07.2025 (State Vs. Kaushar) issued by the respondent no. 2/Sub-Divisional Magistrate / Pargana Magistrate, Garhmukteshwar, District Hapur U/s 129/g of B.N.S.S., 2023 during the pendency of the present application, otherwise the applicant shall suffer irreparable loss and injury. And/or pass such other and further order as this Hon'ble Court may deem fit and proper in the circumstances of the case."

3. It has been submitted by learned counsel for the applicant that learned Sub-Divisional Magistrate, Garhmukteshwar has issued impugned notice under Section 129(g) BNSS in a printed proforma. It was stated that no necessary details regarding dispute or police report have been mentioned in the said notice and merely name and address of applicant has been filled in the printed proforma. 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. 2 NA528 No. 28936 of 2025

5. In the instant matter perusal of record shows that the impugned notice is on a printed proforma and merely name and other details of applicant were filled in the said printed proforma. In the said notice only a general and vague averment has been made that applicant is a hard core criminal and he habitually involves himself in commission of crime and that he is leading his life on the basis of property acquired illegally. 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:- "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:- "Further, the impugned notice dated 18.2.2022 does not even disclose material particulars of general allegations. As per Section 111 Cr.P.C. it is necessary for the Magistrate concerned while issuing notice under Section 111 Cr.P.C. to give substance of information received by him. This important ingredient is completely missing in the impugned notice dated 18.2.2022. Section 110 Cr.P.C. clearly says that a Magistrate may, in the manner, here-in-after provided, require such persons to show cause why he should not be ordered to execute a bond with sureties for his good behaviour for such period not exceeding three years as the Magistrate thinks fit. The Phrase "in the manner here-in-after provided" is significant. It means the manner provided under Sections 111 Cr.P.C. must be followed."

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 3 NA528 No. 28936 of 2025 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 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.

17. The notice having been issued on printed performa clearly indicates the non-application of mind by the Magistrate while issuing the notice U/S 110(g) Cr.P.C. Further even as per the police report clearly indicates absence of any relevant cogent material to invoke power U/S 110 (g) Cr.P.C."

8. Thus, it is apparent from aforesaid case law that a notice, which has been issued on a printed proforma, indicates non-application of mind by the Magistrate, while issuing process under Section 110(g) Cr.P.C. The provisions of Section 110(g) Cr.P.C. have been reincarnated in Section 129(g) BNSS. Further, as stated above neither the 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 03.07.2025 annexed as 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. August 23, 2025 'SP'/- (Raj Beer Singh,J.) SANDEEP PAL High Court of Judicature at Allahabad