The Allahabad High Court has held that the prohibition in the apprehension of breach of peace as illegal due to the absence of details in the notice of Section 111 of the Code of Criminal Procedure by the SDM.
Simultaneously, the High Court quashed the order of the Sessions Court, Mathura for not considering the legal points.
A Single Bench of Justice Sameer Jain passed this order while hearing an Application under section 482 filed by Madhav Singh.
By way of the application, applicant made a prayer to quash the order dated 17.05.2022 passed by Sessions Judge, Mathura in Criminal Revision as well as order dated 16.10.2021 passed by the Sub Divisional Magistrate, Goverdhan, Mathura on the notice under Section 111 CrPC dated 16.10.2021, Police Station Magorra, District Mathura.
Counsel for the applicant submitted that the 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 CrPC and on the basis of police challani report notice under Section 111 CrPC 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.
Counsel for the applicant further 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 further submitted that it is mandatory requirement for the Magistrate concerned while issuing show cause notice under Section 111 CrPC to mention substance of the information received which is missing in the 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 CrPC 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, 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 CrPC is not in accordance with law and substance of the information received has not been mentioned in it.
The Court observed that,
From the perusal of the record, it appears that the impugned notice dated 16.10.2021 issued against the applicant under Section 111 CrPC on the basis of police/challani report dated 03.10.2021 under Section 107 CrPC against the applicant but from the perusal of the impugned notice dated 16.10.2021 issued by the SDM concerned under Section 111 CrPC, it appears that the substance of the information received has not been mentioned in it, which is mandatory requirement as per section 111 CrPC.
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 Court noted that 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 CrPC 1898 (See 111 CrPC 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 Court said that,
The argument advanced by 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 the 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 the 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”, the Court observed.
In view of above discussion, the Court found merit in the argument advanced by the counsel for the applicant, therefore, the 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.