Saturday, June 3, 2023

Allahabad High Court quashes notice issued by SDM Kairana under section 110 CrPC

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The Allahabad High Court has set aside and quashed the notice issued by the Sub Divisional Magistrate, Kairana, District Shamli saying that an order under Section 110 cannot be passed without following the procedure prescribed U/Sections 111, 116 and 117 CrPC.

The Division Bench of Justice Suneet Kumar and Justice Syed Waiz Mian passed this order while hearing a petition filed by Gayyur Hasan and Another.

The Petitioner by the petition is seeking quashing of the notices under section 110 of the Code of Criminal Procedure, 1973 dated 01.07.2019, issued by the third respondent, Sub Divisional Magistrate, Kairana, District Shamli.

The conduct of the State- respondent in not cooperating with the present proceeding is writ large, that inspite several opportunities counter affidavit was not filed, accordingly, the order dated 14.09.2022, the Court was restrained to impose Rs 10,000/- cost on the State-respondent.

Counter affidavit on behalf of the third respondent thereafter has been filed.

The thrust of the argument of the counsel for the petitioner rests on two assertions, viz, that the notice under Section 110 of the Code is in violation of the principle of natural justice as no show cause was issued prior to issuing of the impugned notice cum order.

Further, proceedings under Section 110 of the Code was initiated on the strength of a solitary case being Case under section 3/4 Prevention of Damage to Public Property Act, 1984. That single case would not make the petitioners habitual offender.

A.G.A, on instructions, submitted that the charge sheet has been filed in the aforenoted criminal case.

Wherein, there is no denial that the mandate of Section 110 of the Code was not complied by issuing a show cause notice, further, it is submitted that on a single case provisions of Uttar Pradesh Gangsters and Anti Social Activities (Prevention) Act, 1988 , is attracted.

The Court noted that,

Section 110 of the Code mandates security for good behaviour from habitual offenders. It appears that where the Executive Magistrate receives information that there is within his local jurisdiction a person who is habitual of committing offence, the Magistrate, in the manner provided, requires such person 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.

Section 111 provides that when a Magistrate acting under 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.

Thereafter, the Code mandates that the Executive Magistrate under Section 116 would make an enquiry as to the truth of the information.

Sub-clause (3) of Section 116 contemplates that the Magistrate if he considers that immediate measures are necessary for the prevention of a breach of the peace or disturbance of public tranquillity or the commission of any offence or for the public safety, may, for reasons to be recorded in writing, direct the person in respect of whom the order under section 111 has been made to execute a bond, with or without sureties, for keeping the peace or maintaining good behaviour until the conclusion of the inquiry.

The Court further noted that,

On perusal of the procedure contemplated and mandated under the Code, it appears that by the impugned order the third respondent by passing the procedure under section 111, 116 and 117 directly passed the order in the form of notice calling upon the petitioner to furnish security for good behaviour. In other words, the third respondent without making an enquiry on the report, and/or, on the objection of the petitioners, had directed the petitioners to give security. There is no reference of any pending enquiry or of any objection of the petitioners.

In this backdrop, it is submitted by the counsel for the petitioner that petitioners were not given an opportunity to defend themselves with regard to the contents of the notice.

It is further submitted that the counter affidavit filed by the third respondent is without application of mind and a case of casual approach, as it reflects from the averment made in para 20 of the counter affidavit, that for a single case crime the provisions of Gangster Act is attracted.

“The matter does not pertain to prosecution of the petitioner under the Gangster Act. The proceedings are under section 110 of the Code arising from a case registered under the Prevention of Damage to Public Property Act, 1984.

The writ petition accordingly is liable to be allowed”, the Court observed while allowing the petition.

“The notice dated 01.07.2019, issued by the third respondent, Sub Divisional Magistrate, Kairana, District Shamli, is set aside and quashed. A cost at Rs 20,000/- is imposed upon the third respondent having regard to the casual approach adopted in the matter, to be deposited with the High Court Legal Services Committee Allahabad, within four weeks from the date of order”, the Court ordered.

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