# Gayyur Hasan & Anr v. State of U.P. & Ors

- **Citation:** (2023) 1 ILRA 344
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-12-05
- **Case number:** Criminal Misc. Writ Petition No. 20563 of 2019
- **Bench:** Suneet Kumar, Syed Waiz Mian
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/gayyur-hasan-anr-v-state-of-u-p-ors-49140
- **Pages:** 5

## Headnote

A. Criminal Law - Constitution of India,
1950.-.Article 226-Criminal
Procedure
Code, 1973 - Sections 110,111 & 116 -
Prevention of Damage to Public Property
Act,
1984-Section
3/4-Violation
of
principle of natural justice-Petitioners
were not given an opportunity to defend
themselves with regard to contents of
the notice-Show cause notice was not
issued prior to issuing of the impugned
notice cum order-Proceedings u/s 110
Cr.P.C. was initiated on the strength of a
solitary
case
u/s
3⁄4 Prevention
of
Damage to Public Property Act, 1984,
that single case would not make the
petitioners habitual offender.(Para 1 to
12)

B. Since the person to be proceeded
against has to show cause, it is but
natural that he must know the grounds for
apprehending a breach of the peace or
disturbance of the public tranquility 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.
(Para 10)
The writ petition is allowed. (E-6)

List of Cases cited:

## Text

344 INDIAN LAW REPORTS ALLAHABAD SERIES
(2023) 1 ILRA 344
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 05.12.2022

BEFORE

THE HON'BLE SUNEET KUMAR, J.
THE HON'BLE SYED WAIZ MIAN, J.

Criminal Misc. Writ Petition No. 20563 of 2019

Gayyur Hasan & Anr. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Sri Nipun Singh

Counsel for the Respondents:
A.G.A.

A. Criminal Law - Constitution of India,
1950.-.Article 226-Criminal
Procedure
Code, 1973 - Sections 110,111 & 116 -
Prevention of Damage to Public Property
Act,
1984-Section
3/4-Violation
of
principle of natural justice-Petitioners
were not given an opportunity to defend
themselves with regard to contents of
the notice-Show cause notice was not
issued prior to issuing of the impugned
notice cum order-Proceedings u/s 110
Cr.P.C. was initiated on the strength of a
solitary
case
u/s
3⁄4 Prevention
of
Damage to Public Property Act, 1984,
that single case would not make the
petitioners habitual offender.(Para 1 to
12)

B. Since the person to be proceeded
against has to show cause, it is but
natural that he must know the grounds for
apprehending a breach of the peace or
disturbance of the public tranquility 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.
(Para 10)
The writ petition is allowed. (E-6)

List of Cases cited:

1. Mohan Lal Vs St. of U.P.(1977) All Cri. 333

2. Madhu Limaye Vs S.D.M. Mongyr (1971) AIR
2486

(Delivered by Hon'ble Suneet Kumar, J. &
Hon'ble Syed Waiz Mian, J.)

1. Heard Sri Nipun Singh, learned
counsel for the petitioners and learned
A.G.A. for the State.

2. Petitioner by the instant petition is
seeking quashing of the impugned notices
under section 110 of the Code of Criminal
Procedure, 1973 (for short ''Code') dated
01.07.2019, issued by the third respondent,
Sub
Divisional
Magistrate,
Kairana,
District Shamli.

3. The conduct of the Staterespondent in not cooperating with the
present proceeding is writ large, that inspite
several opportunities counter affidavit was
not filed, accordingly, vide order dated
14.09.2022, the Court was restrained to
impose Rs. 10,000/- cost on the Staterespondent. Counter affidavit on behalf of
the third respondent thereafter has been
filed.

4. The thrust of the argument of
learned 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 Crime No. 52 of 2019,
under section 3/4 Prevention of Damage to
1 All. Gayyur Hasan & Anr. Vs. State of U.P. & Ors.
345
Public Property Act, 1984. That single case
would not make the petitioners habitual
offender.

5. The assertions made in paragraphs
13 and 19 of the writ petition reads thus:

 "13. That impugned order/notice
under section 11 of Cr.P.C. is in violation
of principle of natural justice and therefore
the impugned notice dated 01.07.2019
deserves to be quashed. The impugned
order is based on solitary report of Station
House Officer, police Station Jhinjhana,
District Shamli dated 08.06.2019 without
applying any mind.
19. That section 110 of Cr.P.C. applies
only to habitual offenders, which means the
consistent in committing offence, therefore
on a solitary case no order could be passed
under section 110 of Cr.P.C., the same is
meant for habitual offender."

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

7. The reply to the aforesaid
paragraphs has been given in paragraphs 18
and 20 of the counter affidavit, 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 (for short
''Gangster Act'), is attracted. Paragraph 18
and 20 is extracted:

"18. That, the contents of paragraphs
No. 12, 13 and 14 of the writ petition as
stated are wrong and incorrect hence
denied. In reply thereto, it is submitted that
the local police who are well familiar with
the activities of their territorial limit who
submitted the adverse report against the
petitioners holding that due to fear of the
petitioners no one dare to make complaint
against them and therefore, the then Sub
Divisional Magistrate rightly issued the
notice under section 110 of Cr.PC.
Moreover, on the application of the
petitioners
the
then
Sub
Divisional
Magistrate further directed for enquiry and
the report filed by the Revenue Authority
were found against the petitioners and
therefore, the notice under section 110 of
Cr.P.C. does not suffer from any illegality
or infirmity.
20. That, the contents of paragraphs No.
16, 17, 18, 19 and 20 of the writ petition as
stated are not admitted hence denied. In
reply thereto it is submitted that this
Hon'ble Court as well as the Hon'ble Apex
Court have constantly held in catena of
cases that even on the basis of only one
case crime the provisions of Gangsters Act
is attracted and in view of the above, the
order under section 110 of Cr.P.C. is just
and proper."

8. 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.

9. 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
346 INDIAN LAW REPORTS ALLAHABAD SERIES
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.

10. 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. Sub-clause (3) of Section 116 is
extracted:

"(3) After the commencement, and
before the completion, of the inquiry under
sub- section (1), the Magistrate, if he
considers that immediate measures are
necessary for the prevention of a breach of
the peace or disturbance of the public
tranquillity or the com3mission 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, and may detain him in custody
until such bond is executed or, in default of
execution, until the inquiry is concluded:
Provided that-

(a)
no
person
against
whom
proceedings are not being taken under
section 108, section 109, or section 110
shall be directed to execute a bond for
maintaining good behaviour;

(b) the conditions of such bond,
whether as to the amount thereof or as to
the provision of sureties or the number
thereof or the pecuniary extent of their
liability, shall not be more onerous than
those specified in the order under section
111."

11. After following the aforesaid
procedure as mandated under the Code, an
order to give security can be passed by the
Magistrate under Section 117. Section 117
reads thus:

"117. Order to give security. If, upon
such inquiry, it is proved that it is
necessary for keeping the peace or
maintaining good behaviour, as the case
may be, that the person in respect of whom
the inquiry is made should execute a bond
with
or
without
sureties,
the
with
Magistrate
shall
make
an
order
accordingly:

Provided that-

(a) no person shall be ordered to give
security of a nature different from, or of an
amount larger than, or for a period longer
than, that specified in the order made
under section 111;

(b) the amount of every bond shall be
fixed with due regard to the circumstances
of the case and shall not be excessive;

(c) when the person in respect of
whom the inquiry is made is a minor, the
bond shall be executed only by his
sureties."

12. On perusal of the procedure
contemplated and mandated under the
Code, it appears that by the impugned order
the
third
respondent
bypassing
the
procedure under section 111, 116 and 117
1 All. Gayyur Hasan & Anr. Vs. State of U.P. & Ors.
347
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.

13. In the case of Mohan Lal Vs.
State of U.P., 1977 All Cri C 333, this
Court observed:-

"There are a series of decisions in
which it has been held that the provisions
contained in Section 111 of the Code are
mandatory and that the non-compliance
thereof vitiated the entire proceedings."

14. In the case of Madhu Limaye v. S.
D. M. Mongyr, 1971 AIR 2486, the Apex
Court, in para 36 of its judgment observed:

"36. We have seen the provisions of
Section 107. That section says that action is
to be taken in the manner here-in-after
provided and this clearly indicate 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 solicitous that this
liberty should only be curtailed according
to its own procedure and not according to
the whim of the Magistrate concerned. It
behooves 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."

15. In this very case the Apex Court
went on to observe in para 37.

"37. Since the person to be proceeded
against has to show cause, it is but natural
that he must know 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."

16. In this backdrop, it is submitted
by learned 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.

17. The writ petition is allowed. The
impugned 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
348 INDIAN LAW REPORTS ALLAHABAD SERIES
Allahabad, within four weeks from the date
of order.

18. Learned A.G.A. to communicate
the order and ensure compliance.
----------
(2023) 1 ILRA 348
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 10.01.2023

BEFORE

THE HON'BLE OM PRAKASH SHUKLA, J.

Writ-A No. 1223 of 2006
with other connected cases

Sushil Kumar Dubey ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Har Govind Singh Parihar

Counsel for the Respondents:
C.S.C.

A.
Service
Law-
U.P.
Intermediate
Education Board Act-Section 16 E (11)-UP
High School and Intermediate College(
Payment of salaries to teachers and
employees) Act, 1971-Petitioners claim to
be Teachers L.T. Grade seeking regular
payment of salary and non-interference in
regular functioning of the petitionersPetitioners
was
appointed
as
adhoc
teachers but they did not get any salary
despite several request made by them-No
doubt a temporary vacancy can be filled
by management in case of an exigency
but the petitioners could not allowed to be
continue on the said post for perpetuity
without his appointment having been
referred to selection committee-Judgment
passed by Apex Court in Sanjay Singh's
case and the compliances made by the
State
leading
to
the
conducting
of
examination/interview and preparation of
panel sent to the DIOS, nothing survives
to be decided.(Para 1 to 11)
The writ petitions are disposed of. (E-6)

List of Cases cited:
1. Sanjay Singh & ors.. Vs St. of U.P & ors.. Civil
Appeal No. 8300 of 2016

2. Vinod Kumar Yadav Vs St. of U.P. Writ-A No
95 of 2011

3. St. of Punj. & anr. Vs Devans Modern
Dreweries Ltd. & anr. (2004) 11 SCC 26

(Delivered by Hon'ble Om Prakash Shukla, J.)

1. Heard Shri H.J.S. Parihar, learned
Senior Counsel assisted by Mrs. Meenakshi
Singh Parihar for the petitioner. Shri Ashish
Kumar Pathak, Mrs. Alka Verma, Shri
Anand Dubey, Shri Anupam Shukla, Shri
I.P. Singh, Shri R.D. Shahi, Shri S.S.
Rajawat, Shri Bhanu Bajpai, Shri Pradeep
Kumar Singh, Shri Firoz Ahmad Khan,
Shri Chandrashekhar Singh, , Shri Alok
Srivastava, Shri Prashant Kumar Singh,
Shri S. Chandra, Shri Vinod Kumar Gupta,
Shri Ravikant Mishra, Shri Ajay Kumar
Singh, Shri P.K. Singh, Shri Pawan Kumar
Pandey, Shri G.C. Verma, Shri Y.K. Mishra,
Shri Ansuman Singh, Shri Ashutosh Shahi,
Shri Ganesh Nath Mishra, Shri Sanjay
Mishra, Shri Ramchandra Gupta, Shri
Rajendra Pratap Singh, Shri Alok Pandey,
Shri Udai bhan Pandey, Shri Shashank
Singh, Shri Kshemenda Shukla, Shri
Jitendra Kumar Pandey, Shri Vinod Kumar
Srivastava, Shri Anupam Mehrotra, Shri
Krishna Kumar Dubey are present for the
petitioners. Shri Badrish Kumar Tripathi,
learned Counsel Shri V.P. Nag & Shri
Gopal Kumar Srivastava, learned Standing
Counsel are present for the opposite parties.

2. The Petitioners in this leading Writ
Petition claim to be Teachers L.T Grade
and as such have knocked the door of this
Court, thereby seeking regular payment of