# Manish Yadav v. State of U.P. & Ors. Opp. Parties

- **Citation:** (2021) 1 ILRA 466
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-12-08
- **Case number:** U/S 482/378/407 No. 2088 of 2020
- **Bench:** Alok Mathur
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/manish-yadav-v-state-of-u-p-ors-opp-parties-46031
- **Pages:** 4

## Headnote

(A) Code of Criminal Procedure, 1973 -
Section 107, 111 - Practice & Procedure
- Notice - - The material is the foundation of
the exercise of power u/s 107 Cr.P.C. which is
clearly lacking in the notice. The notice either
should clearly disclose the material indicating
the satisfaction of the Magistrate or the same
should be accompanied by the Police report
and other material being relied upon by the
Magistrate at the time of issuing of notice, in
this case both are missing. (Para 14)

Application Allowed. (E-8)

List of Cases cited :-

## Text

466 INDIAN LAW REPORTS ALLAHABAD SERIES
right and another to say that in no
circumstances whatsoever where there is no
provision for re-valuation will the writ
court exercise its undoubted constitutional
powers? We reiterate that the situation can
only be rare and exceptional."

8. As is evident from the above
exposition of the law on the subject, there
must be a demonstrable illegality in the
evaluation undertaken and only in such rare
and exceptional cases would the Court be
legally justified in invoking its jurisdiction.
The petitioner here has miserably failed to
meet the tests as evolved and noticed
above.

9. The writ petition consequently fails
and is dismissed.
----------
(2021)01ILR A466
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 08.12.2020

BEFORE
THE HON'BLE ALOK MATHUR, J.

U/S 482/378/407 No. 2088 of 2020

Manish Yadav ...Applicant
Versus
State of U.P. & Ors. ...Opp. Parties

Counsel for the Applicant:
Shailender Singh, Ankit Tiwari

Counsel for the Opp. Parties:
G.A.

(A) Code of Criminal Procedure, 1973 -
Section 107, 111 - Practice & Procedure
- Notice - - The material is the foundation of
the exercise of power u/s 107 Cr.P.C. which is
clearly lacking in the notice. The notice either
should clearly disclose the material indicating
the satisfaction of the Magistrate or the same
should be accompanied by the Police report
and other material being relied upon by the
Magistrate at the time of issuing of notice, in
this case both are missing. (Para 14)

Application Allowed. (E-8)

List of Cases cited :-

1.
Madhu
Limaye
Vs
Sub-
Divisional
Magistrate, Monghyr & ors., (1970) 3 SCC 746

2. Sheo Raj Yadav Vs St. of U.P. & 2 ors.,
Criminal Misc. No. 492 of 2010

(Delivered by Hon'ble Alok Mathur, J.)

1. Heard Sri Shailender Singh,
learned counsel for the applicant as well as
learned Additional Government Advocate
for the State of U.P.

2. By means of present application u/s
482 Cr.P.C. the applicant has challenged
the notice dated 28.07.2020, issued by
Assistant
Police
Commissioner/Special
Executive
Magistrate,
Lucknow
purportedly issued under Section 107
Cr.P.C., directing the applicant to show
cause as to why he should not be directed
to execute personal bond for maintaining
peace and for which purpose applicant has
been directed to appear in the office of
Assistant Police Commissioner, Lucknow
on 24.08.2020.

3. Learned counsel for the applicant
has assailed the impugned notice on the
ground that no reasons have been disclosed
in the said notice and from the show cause
notice applicant is unable to tender any
response to the same as there is no mention
or whisper about the acts which may have
caused breach of peace for which applicant
is being held liable to.

4. A notice under Section 107 Cr.P.C.
is not an empty formality but is issued with
1 All. Manish Yadav Vs. State of U.P. & Ors.
467
purpose to elicit a response from a person
to whom notice is issued. In absence of
mentioning of any facts or any details in
the show cause notice clearly disables the
person to defend himself effectively or give
any meaningful reply to the same. For
ready reference, Section 107 Cr.P.C. is
quoted hereinbelow :-

"107. Security for keeping the peace
in other cases.- (1) When an Executive
Magistrate receives information that any
person is likely to commit a breach of the
peace or disturb the public tranquility or to
do any wrongful act that may probably
occasion a breach of the peace or disturb
the public tranquility and is of opinion that
there is sufficient ground for proceedings,
he
may,
in
the
manner
hereinafter
provided, require such person to show
cause why he should not be ordered to
execute a bond with or without sureties, for
keeping the peace for such period, not
exceeding one year, as the Magistrate
thinks fit.

(2) Proceedings under this section
may be taken before any Executive
Magistrate when either the place where the
breach of the peace or disturbance is
apprehended is within his local jurisdiction
or there is within such jurisdiction a person
who is likely to commit a breach of the
peace or disturb the public tranquility or to
do any wrongful act as aforesaid beyond
such jurisdiction."

5. This provision is in aid of orderly
society and seeks to nip in the bud conduct
subversive of the peace and public
tranquility. For this purpose, the Executive
Magistrates
are
invested
with
large
discretionary powers for the preservation of
public peace and order. The justification for
such provisions is claimed by the State to
be in the function of the State which
embraces not only the punishment of
offenders but, as far as possible, the
prevention of offences.

6. Section 107, is a preventive
provision
enabling
the
Executive
Magistrate to prevent disturbance of the
public tranquility and breach of peace, by
requiring the persons who are likely to
cause disturbance to public pace, to execute
bond with or without surety for keeping
peace. It should be mentioned that
preventive action under Section 107 is not
meant for substitution of punishment or for
harassment or humiliation to the nonapplicants who are summoned.

7. The foundation of jurisdiction for
action under Section 107 is credible
information from a police officer or a
private person. Prior to the initiation of
proceedings under Section 107, information
must be given against a person from whom
it is sought to take security. The condition
precedent to taking security is that the
Magistrate should be informed that some
person is 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 107, being
started 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 107 before taking action.

8. Section 107, does not give a
discretion to the Magistrate in the sense
that he "may" require the person to show
cause. But when he does exercise that
discretion and does decide that he will issue
468 INDIAN LAW REPORTS ALLAHABAD SERIES
a notice to show cause, then that notice to
show cause must be a notice which satisfies
thee requirements of Section 111. 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.

9. For taking action under Section
107, the manner provided is clearly laid
down under Section 111. Issue of a
preliminary notice to show cause apart
from what is provided in Section 111 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 107, but if he is not satisfied, then
he will not take any action and leave the
matter as it is.

10. A show cause notice has solemn
purpose to inform the person about the
material for which response is being sought
with regard to the acts which may
constitute breach of peace for which he is
being directed to file personal bond for
maintaining peace. For a person who is not
aware of the acts or incident for which he
may or may not be culpable, it is
impossible for him to reply to such a show
cause notice.

11. In the case of Madhu Limaye Vs.
Sub-Divisional Magistrate, Monghyr and
Others, 1970 (3) SCC 746, it has been
held by Hon'ble the Apex Court that the
person proceeded against show cause
notice must be informed of the allegations
made against him, by giving him the
substance of the information so that he may
meet such allegations.

12. This Court in Criminal Misc.
Case No. 492 of 2010 - Sheo Raj Yadav
Vs. State of U.P. and Two Others
(decided on 15.02.2010), while dealing
with a similar issue, has observed as under

"The preliminary order contemplated
under Section 111 Cr.P.C. is a judicial
order and has to be prepared and drawn up
cautiously and carefully in compliance with
the provisions of Section 111 Cr.P.C. and
the other must contain reasons of the
Magistrate satisfaction. The substance of
the information is the matter upon which he
has to show cause. If substance of
information is not given in the order under
Section 111 Cr.P.C. the person against
whom the order has been made will remain
in confusion. The extent of information
which must be set forth depends in each
case upon the circumstances of that case.
The basic object of preliminary order being
to give the person proceeded against an
opportunity to meet the allegation made
against him as well as nature of the order
proposed.

In the instant case, the impugned
order without recording reasons show nonapplication of judicial mind. Notice under
Section 111 Cr.P.C. containing vague
apprehensions and allegations indicate
pre-conceived
notions.
The
impugned
notice under challenge is void and
proceedings against the petitioner are
nullity
and
without
jurisdiction
as
substance of information received as
required is incomplete and ambiguous.
Notice without substance of information
vitiate the proceedings drawn on the basis
of such vague notice are apparently abuse
of process of Court. Failure to comply with
the mandatory requirements of Section 111
Cr.P.C. vitiate the preliminary order and
consequently
the
proceedings.
The
procedure
followed
by
the
learned
Magistrate is not in consonance with the
provisions of law."
1 All. Smt. Aruna Kori Vs. State of U.P. & Anr.
469

13. Perusal of the impugned show
cause notice clearly indicates that the
same has been issued on printed proforma
where proposed date of appearance and
the name of the party has been written. It
clearly indicates that such a notice has
been issued without any application of
mind and does not conform to the
statutory
provisions
of
Section
107
Cr.P.C..

14. The notice does not mention any
act or omission on the part of the applicant
which may have been considered by the
Magistrate at the time of issuance of the
notice. The material is the foundation of
the exercise of power u/s 107 Cr.P.C.
which is clearly lacking in the notice. The
notice either should clearly disclose the
material indicating the satisfaction of the
Magistrate
or
the
same
should
be
accompanied by the Police report and
other material being relied upon by the
Magistrate at the time of issuing of notice.
In the present case, both are missing and
therefore, the impugned notice does not
fulfill the prescription of law in this regard
and therefore is liable to be set aside.

15. In the light of above, the
impugned
show
cause
notice
dated
28.07.2020 (Annexure-1 to the affidavit
filed in support of application), issued by
Assistant Police Commissioner/Special
Executive Magistrate, Lucknow is hereby
set aside. It is open for the concerned
Magistrate
to
pass
fresh
order
in
accordance with law, if he so chooses.

16. With the aforesaid directions, the
application stands allowed.
----------
(2021)01ILR A469
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 03.12.2020
BEFORE

THE HON'BLE SUNEET KUMAR, J.

Crl. Misc. Appl. u/s 482 No. 9961 of 2020
&
Crl. Misc. Appl. u/s 482 No. 31695 of 2019

Smt. Aruna Kori ...Applicant
Versus
State of U.P. & Anr. ...Opp. Parties

Counsel for the Applicant:
Sri Vijay Singh Gour, Sri Tinku Singh

Counsel for the Opp. Parties:
A.G.A., Sri Birendra Singh

(A) Criminal Law- Indian Penal Code:
Section 188 - Code of Criminal Procedure
- Section 195 - The Representation of
People Act, 1951: Section 123, 100 -
Prosecution for offence under Section 188
IPC can only be initiated by a complaint
filed by the concerned public servant and
not by police report. (Para 12)

Section 195(a)(i) Cr.P.C. bars the court
from taking cognizance of any offence
punishable under Section 188 IPC or
abetment or attempt to commit the same,
unless, there is a written complaint by the
public servant concerned for contempt of
his
lawful
order.
The
court
lacks
competence to take cognizance in certain
types of offences enumerated therein. The
legislative intent behind such a provision
has been that an individual should not face
criminal
prosecution
instituted
upon
insufficient grounds by person actuated by
malice, ill-will or frivolity of disposition and
to save time of the criminal courts being
wasted by endless prosecutions. (Para 17)

The applicants are not charged for any
other offence save Section 188 IPC. The
complaint was not filed by the concerned
Magistrate/Police Servant. The cognizance
taken thereon, by the court below is void ab
initio being in violation of the mandatory
provision
-Section
195
Cr.P.C.
The