# Baleshwar and others v. State of U.P

- **Citation:** (2008) 3 ILRA 821
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2008-08-08
- **Case number:** Criminal Misc. Application No. 67 of 2005
- **Bench:** Vijay Kumar Verma
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/baleshwar-and-others-v-state-of-u-p-41235
- **Pages:** 4

## Headnote

Code of Criminal Procedure-Section-111,
114-Notice by S.D.M. to execute personal
bond of Rs.30,000/- without specify the
cases number offence and Section-heldwholly
illegal-without
application
of
judicial
mind-contrary
to
statutory
provisions-can not sustain.

Held: Para 11

In view of the observations made in the
cases
mentioned
herein-above,
the
impugned notice being wholly illegal and
void is liable to be set-aside.

Case law discussed:
2002(45) ACC 627, 1975ALR 627, 1971 Cr. L.J.
1720, 1977 ACC 333

## Text

3 All] Baleshwar and others V. State of U.P.
821
their well wishers are made aware of the
vacancies to the exclusion of other
eligible candidates. Thus a situation is
created
whereby
the
field
of
consideration is restricted to chosen few
only.

We record that the learned Single
Judge has rightly dismissed the writ
petition vide his order dated 29.07.2008.
Any interference in the matter would
have only perpetuated an illegality.
Appeal is, accordingly, dismissed.
---------
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 08.08.2008

BEFORE
THE HON'BLE VIJAY KUMAR VERMA, J.

Criminal Misc. Application No. 67 of 2005

Baleshwar and others
...Applicants
Versus
State of U.P.

...Opposite party

Counsel for the Applicants:
Sri Manoj Vashisth

Counsel for the Respondent:
A.G.A.

Code of Criminal Procedure-Section-111,
114-Notice by S.D.M. to execute personal
bond of Rs.30,000/- without specify the
cases number offence and Section-heldwholly
illegal-without
application
of
judicial
mind-contrary
to
statutory
provisions-can not sustain.

Held: Para 11

In view of the observations made in the
cases
mentioned
herein-above,
the
impugned notice being wholly illegal and
void is liable to be set-aside.

Case law discussed:
2002(45) ACC 627, 1975ALR 627, 1971 Cr. L.J.
1720, 1977 ACC 333

(Delivered by Hon'ble Vijay Kumar Verma, J.)

By means of this application under
section 482 of the code of Criminal
Procedure (in short the 'Cr.P.C.'), the
applicants have challenged the validity
of impugned notice dated 02.11.2004
purporting to be issued under section
111 Cr.P.C. by the S.D.M. Mawana,
District Meerut.

2. From the impugned notice
(Annexure 1), it transpires that being
satisfied
with
the
report
dated
02.11.2004 of S.O. P.S. Mawana, the
S.D.M. Mawana District Meerut passed
an order under section 111 Cr.P.C. in
the proceedings under section 107/116
Cr.P.C. in Case No. 943/9 of 2004
(State vs. Baleshwar and others) and in
pursuance of that order impugned notice
was issued to the applicants to show
cause as to why they be not ordered to
execute a personal bond for Rs. 30,000/-
and furnish two sureties each in the like
amount to keep peace for a period of
one year.

3. Heard Sri Manoj Vashisth
learned counsel for the applicants and
learned AGA for the State.

4. It was contended by the learned
counsel for the applicants that the
impugned notice purported to be issued
under section 111 Cr.P.C. is void, as full
substance of the police report has not
been mentioned in the notice. For this
contention, reliance has been placed on
the case of Ranjeet Kumar & others vs.
State of U.P.[2002(45) ACC 627] and
822 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
Trijugi Narain Shukla vs. State of U.P.
& another 1975ALR 627.

5. The learned AGA on the other
hand,
submitted
that
there
is
no
illegality in the impugned notice and
hence interference by this Court in the
said notice is not warranted.

6. Having given my thoughtful
consideration to the rival submissions
made by parties counsel and after going
the impugned notice, I find force in the
aforesaid contention of the learned
counsel for the applicants that the
impugned notice is wholly illegal and
void. Annexure 1 is the copy of the
impugned notice, which was issued by
SDM
Mawana
(Meerut)
to
the
applicants, whereby they were called
upon to appear on 10.12.2004 and show
cause as to why they be not ordered to
execute a personal bond for Rs.30,000/-
and furnish two sureties each in the like
amount to keep peace for a period of
one year. In this notice it is only
mentioned by the SDM concerned that
he is satisfied with the report of S.O. of
P.S. Mawana that due to old litigation,
there is enmity between the parties, due
to which there is likelihood of the
breach of peace. It is not mentioned in
this notice that what type of litigation is
going on between the parties and in
which court the said litigation is
pending. Number of the case and other
details of the said litigation have also
not been mentioned in the impugned
notice. As such the impugned notice
issued by the learned SDM Mawana is
vague and it does not fulfil the
requirements of section 111 Cr.P.C.
This type of notice has been held to be
illegal by this Court in the case of
Ranjeet Kumar vs. State of U.P.
(supra).

7. Making an order under section
111 of the Code is not an idle formality.
It should be clear on the face of the
order under section 111 Cr.P.C. that the
order has been passed after application
of judicial mind. If no substance of
information is given in the order under
section 111, the person against whom
the order has been made will remain in
confusion. Section 114 of the Code
provides that the summons or warrants
shall be accompanied by a copy of the
order made under Section 111. This
salutary provision has been enshrined in
the Code to give notice of the facts and
the allegations which are to be met by
the
person
against
whom
the
proceedings under section 107 Cr.P.C.
are drawn.

8. It should be borne in mind that
the proceedings under Section 107/116
of
the
Code
some
times
cause
irreparable
loss
and
unnecessary
harassment to the public, who run to the
court at the costs of their own vocations
of life. Unless it is absolutely necessary,
proceedings
under
section
107/116
Cr.P.C. should not be resorted to.
Experience tells that proceedings like
the one under section 107/116 of the
Code are conducted in a most lethargic
and lackadaisical manner by the learned
Executive
Magistrate
causing
harassment to public beyond measure.

9. In the case of Madhu Limaye
vs. S.D.M. Mongyr 1971 Cr. L.J. 1720,
the Apex Court, in para 36 of its
judgment observed:-
3 All] Baleshwar and others V. State of U.P.
823
"We have seen the provisions of
Section 107. That section says that
action is to be taken in the manner
herein-after provided and this clearly
indicates that it is not open to a
Magistrate in such a case to depart
from the procedure to any substantial
extent. This is very salutary because the
liberty of the person is involved and the
law is rightly solicitious that this liberty
should only be curtailed according to its
own procedure and not according to the
whim of the magistrate concerned. It
behoves us, therefore, to emphasise the
safeguards built into the procedure
because from there will arise the
consideration of the reasonableness of
the restrictions in the interest of public
order or in the interest of the general
public."

In this very case the Apex Court
went on to observe as under in para 27:-

"Since the person to be proceeded
against has to show cause, it is but
natural that he must known the grounds
for apprehending a breach of the peace
or disturbance of the public tranquillity
at his hands. Although the section
speaks
of
the
'substance'
of
the
information it does not mean the order
should not be full. It may not repeat the
information bodily but it must give
proper notice of what has moved the
Magistrate to take the action. This order
is the foundation of the jurisdiction and
the word 'substance' means the essence
of the most important parts of the
information."

10. In the case of Mohan Lal vs.
State of U.P. 1977 ACC 333, this Court
observed that "there are a series of
decisions in which the same principles
have been repeated again and again. It is
distressing to note that the repeated
pronouncement of this Court as also the
perception made by the Supreme Court
have fallen on the deaf ears of our
Executive Magistrates who still treat the
making of order under Section 111 an
idle formality. Unfortunately due to lack
of clear perception of law the learned
VIIIth Additional Sessions Judge, Agra
has also put his seal of approval on the
invalid order under Section 111. In
modern time the judiciary, like any
other State Organ, is under scrutiny of
the public and rightly so, because in a
democracy the people are the ultimate
masters of the country and all State
organs are meant to serve the people.
The lack of vigil on the part of the lower
revisional court is regrettable."

11. In view of the observations
made in the cases mentioned hereinabove, the impugned notice being
wholly illegal and void is liable to be
set-aside.

12. In the result, the application
under section 482 Cr.P.C. is allowed.
The
order
dated
02.11.2004
and
impugned notice issued in pursuance
thereof as well as the proceedings of
case No. 943/9 of 2004 (State vs.
Baleshwar and others) under section
107/116 Cr.P.C. pending in the court of
SDM Mawana District Meerut are
hereby quashed.
---------
824 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 04.08.2008

BEFORE
THE HON'BLE BHARTI SAPRU, J.

Civil Misc. Writ Petition No.33383 of 2008

Satyendra Chaturvedi

...Petitioner
Versus
Small Scale Industries Research and
Development Organization ...Respondent

Counsel for the Petitioner:
Sri Manish Goyal

Counsel for the Respondent:
Sri R.N. Singh
Sri Anil Kumar Aditya
Sri A. Narayan

Code of Civil Procedure-Order 39 Rule-Igrant of Injunction-petitioner running
nursery shot on the land of SIRDO-a
research Institute-initially lease granted
for 11 months with partner extension of
33 months-after expiry of that period
petitioner has no right to continue in
possession-both courts below rightly
declined to grant injunction-petitioner
running
manufacturing
unit
for
commercial use can not be encouraged
contrary
to
scientific
developmentmerely on basis of illegal possession
without prima facie case, in absence of
balance
of
convenience-can
not
be
interfered by writ court.

Held: Para 37 & 38

Lastly in so far as the irreparable injury
is concerned, the petitioner is simply a
manufacturing unit and is individual,
whereas the public at large benefits if
new research projects are set up. No
doubt the petitioner was having a
manufacturing unit, which employed a
few people but when the entire purpose
of respondent SIRDO is to encourage
research and development work by the
new entrepreneurs, it would be in the
larger interest and that is much greater
than the individual's interest like the
petitioner.

Thus in my opinion that both the courts
below have committed no error in
coming to the conclusion that the
petitioner failed to make out a case for
grant of injunction.
Case law discussed:
(2004) 1 SCC 769, (2004) 2 SCC 137, (2006) 8
SCC 367, 2006 (63) ALR 161, AIR 1989 SC
2097, AIR 1968 SC 620, AIR 1984 Alld 60, AIR
1963 Alld 581 (Division Bench), 1885 ILR 7
Alld 900 (Full Bench), AIR 1972 Alld 155, 2004
(55) ALR 260 SC, JT 1996 (8) SC 50, JT 2000
(4) SC 186, (2008) 3 SCC 279

(Delivered by Hon'ble Bharati Sapru, J.)

1. Heard Sri Manish Goyal learned
counsel appearing on behalf of the
petitioner and Sri R.N. Singh, learned
senior counsel for the respondent.

2. This writ petition has been filed
under Article 226 of the Constitution of
India seeking writ of certiorari calling
for the records of the case and quashing
the judgment and order dated 2.7.2008
passed by the Addl. District Judge,
Allahabad in MCA no.39 of 2008
(Satyendra Chaturvedi versus Small
Scale
Industries
Research
and
Development Organisation). The second
prayer is also for a writ of certiorari to
quash the judgment and order dated
30.1.2008 passed by the Civil Judge
(Senior Division), Allahabad on the
application paper no.6-C in the Original
Suit no.1300 of 2007. The third prayer
is for a writ of prohibition restraining
the
respondent
from
causing
interference in the running of the unit of
the petitioner on shed no.3 Plot no.4,
SIRDO Campus, Industrial Area P.O.
T.S.L. Naini, Allahabad and the last is