# Mohit & Ors v. State of U.P. & Ors

- **Citation:** (2024) 8 ILRA 607
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-08-12
- **Case number:** Application U/s 482 No. 7104 of 2024
- **Bench:** Saurabh Lavania
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mohit-ors-v-state-of-u-p-ors-52415
- **Pages:** 17

## Headnote

Law-The
Bharatiya
Nagarik
Suraksha
Sanhita,2023-Sections126/135-Court cannot construe a section
of statue with reference to that of another
unless the latter is in pari materia with the
former-when
the
law
requires
the
Magistrate to apply his mind, then there
has to be a due application of mind. The
manner in which the notice has been
issued, it clearly transpires that it has
been prepared by some person of the
office of the Sub Divisional Magistrate and
thereafter he put his signatures and the
notice has got issued. This practice is
reprimanded. It is expected that the Sub
Divisional Magistrate shall apply his mind
as required in law before issuing notice
under Section 130 of BNSS for taking
appropriate action under Section 126/135
of BNSS-Printed format cannot be a
satisfaction
which
is
required
under
Section 130 of BNSS while issuing notice
under Section 126/135 of BNSS. (Para
17,21 & 22) (E-15)

List of Cases cited:

## Text

_Characters 0–39,984 of 45,652. This is a partial read: ask again with offset=39984 for what follows._

8 All. Mohit & Ors. Vs. State of U.P. & Ors.
607
(2024) 8 ILRA 607
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 12.08.2024

BEFORE

THE HON'BLE SAURABH LAVANIA, J.

Application U/s 482 No. 7104 of 2024

Mohit & Ors. ...Applicants
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Applicants:
Prathama Singh, Ashish Kumar Singh, Pal Singh
Yadav

Counsel for the Respondents:
G.A.

Criminal
Law-The
Bharatiya
Nagarik
Suraksha
Sanhita,2023-Sections126/135-Court cannot construe a section
of statue with reference to that of another
unless the latter is in pari materia with the
former-when
the
law
requires
the
Magistrate to apply his mind, then there
has to be a due application of mind. The
manner in which the notice has been
issued, it clearly transpires that it has
been prepared by some person of the
office of the Sub Divisional Magistrate and
thereafter he put his signatures and the
notice has got issued. This practice is
reprimanded. It is expected that the Sub
Divisional Magistrate shall apply his mind
as required in law before issuing notice
under Section 130 of BNSS for taking
appropriate action under Section 126/135
of BNSS-Printed format cannot be a
satisfaction
which
is
required
under
Section 130 of BNSS while issuing notice
under Section 126/135 of BNSS. (Para
17,21 & 22) (E-15)

List of Cases cited:

1. Siya Nand Tyagi Vs St.of U.P. reported in
1994 Cri. LJ 1298

2. Tavindar Kumar & anr.Vs St.reported in 1990
Cri LJ 40.

3. Application U/S 482/378/407 No. 2927 of
2017(Dr. Mirza Shahab Shah Vs St.Of U.P. &
Ors.)

4. 2016 (1) U.P. Criminal Ruling page 483 &
2008 (3) U.P. Criminal Ruling page 496

5. APPLICATION U/S 482 No. 3065 of 2019

(Delivered by Hon'ble Saurabh Lavania, J.)

1. Heard Ms. Prathama Singh, learned
counsel for the applicants and learned AGA
for the State and perused the record.

2. The present application has been
filed for the following main reliefs:-

"Wherefore,
it
is
most
respectfully
prayed
that
this
Hon'ble Court may kindly be
pleased to summon the record from
opposite party no.2 and quash the
impugned
order/notice
dated
27.07.2024 passed by opposite
party no.2 viz. Sub Divisional
Magistrate
Sidhauli,
District
Sitapur as Annexure no. 1 to this
petition.

It is further prayed that till
disposal of instant petition, further
proceeding pending before learned
Sub Divisional Magistrate Sidhauli
District Sitapur be stayed in the
interest of justice."

3. By means of the present
application, a notice dated 27.07.2024
issued under Section 130 Bhartiya Nagrik
Suraksha Sanhita, 2023 (in short "BNSS")
by Sub Divisional Magistrate, Sidhauli,
Sitapur.
608 INDIAN LAW REPORTS ALLAHABAD SERIES
4. It is stated that on account of
apprehension that the applicants may cause
breach of peace, a report dated 15.07.2024
was submitted by the S.H.O., Police
Station- Sidhauli, District-Sitapur in the
light of provisions indicated under Section
126/135 of BNSS.

5. Learned counsel for the
applicants submitted that the impugned
notice dated 27.07.2024 is liable to be set
aside because the same has been issued
without application of mind as the
concerned Magistrate has not recorded his
opinion to the effect that their exists
sufficient ground to take action under the
provisions of Section 130 of BNSS and
further that the same is a printed proforma.

6. She further submitted that a
printed format cannot be a satisfaction
which is required under Section 130 of
BNSS while issuing notice under Section
126/135 of BNSS.

7. She has placed reliance upon the
judgement of this Court in the Case of Siya
Nand Tyagi v. State of U.P. reported in
1994 Cri. LJ 1298 and also the judgement
of the Delhi High Court in the case of
Tavindar Kumar and another v. State
reported in 1990 Cri LJ 40.

8. This Court in Siya Nand Tyagi
v. State of U.P. (supra) has clearly held
thus:-

"3. It is unfortunate that the
requirement of Section 107 of the
Code that the Executive Magistrate
receiving information should be of
the opinion that there are sufficient
grounds for proceedings under the
said section have become a dead
letter and are always followed in its
breach. 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.
4. 107 is aimed at a person
who
causes
reasonable
apprehension of conduct likely to
lead to apprehension of breach of
peace or a disturbance of public
tranquillity. It is a preventive
measure.
Proceedings
under
Section 107/116 should not be
transformed into persecution of
innocent persons at the sweet will
of the police or other persons
acting mala fide.
5. In the case of Mohan Lal
v. 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 noncompliance thereof vitiated the
entire proceedings."

6. In the case of Madhu
Limaye v. S. D. M. Mongyr, , the
Apex Court, in para 36 of its
judgment observed:
8 All. Mohit & Ors. Vs. State of U.P. & Ors.
609
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 curtaided
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 the observe in para
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."
7. In the present case the
learned Sub-Divisional Magistrate
has
thrown
the
mandatory
provisions of Section 111 of the
Code to the winds and has
prepared a printed pro forma. The
learned Magistrate has also not
recorded his opinion that there
existed sufficient grounds to take
action under the provisions of
Section 107 of the Code."

9.

In
the
judgment
dated
04.05.2017 passed in Application U/S
482/378/407 No. 2927 of 2017(Dr. Mirza
Shahab Shah vs. State Of U.P. & Ors.),
this Court quashed the similar notice under
Section 111 Cr.P.C., after considering the
relevant provisions and judgments cited i.e.
2016 (1) U.P. Criminal Ruling page 483
and 2008 (3) U.P. Criminal Ruling page
496. The relevant portion of the judgment
dated 04.05.2017 reads as under:-

"9. It has been submitted by
the
learned
counsel
for
the
applicant that the notice issued to
the applicant under Section 111
Cr.P.C.
is
absolutely
without
jurisdiction, as it does not fulfill the
requirement of law. The learned
counsel for the applicant has
referred to a judgment of this Court
reported in 2016 (1) U.P. Criminal
Ruling page 483 and 2008 (3) U.P.
Criminal Ruling page 496.
10. In both the aforesaid
cases it has been held that passing
of an order under Section 111
Cr.P.C. is not a mere formality. It
should be clear on the face of the
order that the order has been
passed after application of judicial
mind. If no substance of the
information is mentioned in the
order, the person against whom the
order has been made, will remain
ignorant of the material against
610 INDIAN LAW REPORTS ALLAHABAD SERIES
him. The person to be proceeded
against
has
to
show
cause,
therefore,
he
must
know
the
grounds for apprehending a breach
of peace or disturbance at his
hands.
The
preliminary
order
passed under Section 111 Cr.P.C. is
the foundation of the jurisdiction
and the words "substance" means,
the essence of the information
received by the Magistrate.
11. In the present case, a
perusal of the notice issued to the
applicant clearly reveals that no
substance
of
the
information
received, is mentioned in the order
or the notice. Even challani report
sent by the police does not disclose,
as to how the applicant, who is
holding such an important post,
would cause breach of peace. In
these circumstances, I find that the
learned
City
Magistrate
has
proceeded on a wrong assumption
that the applicant is a person of
such reputation that he may disturb
law and order during the assembly
elections. The learned Magistrate
has not recorded his opinion that
there exists sufficient grounds to
take action against the applicant."

10. In similar circumstance the
proceedings relating to Case No. 55 of
2019 (State vs. Pradeep Singh) under
Section 111 Cr.P.C, Village- Rasoolabad,
Police
Station-Kaiserganj,
District-
Bahraich pending in the Court of Pargana
Magistrate, Kaiserganj, District Bahraich
was challenged by way of filing 482
Petition No. 3065 of 2019 and this Court
allowed the same vide order dated
23.04.2019, which on reproduction reads as
under:-

"This instant petition has
been filed under Section 482
Cr.P.C.
challenging
the
entire
proceedings relating to Case No.
55 of 2019 (State vs. Pradeep
Singh) under Section 111 Cr.P.C.
Village- Rasoolabad, Police Station
Kaiserganj,
District
Bahraich
pending in the Court of Pargana
Magistrate, Kaiserganj, District
Bahraich.
It
is
contended
that
Pargana Magistrate, Kaiserganj,
District Bahraich has issued the
impugned notice under Section 111
Cr.P.C. on the basis of the police
report dated 03.03.2019 without
application of judicial mind. It is
alleged that impugned notice has
been issued on typed format in
cyclostyle manner. In the said typed
format only the date and name of
the police station has been filled in
the gaps. It is further submitted that
contrary to the provisions of
Section 111 Cr.P.C., the Pargana
Magistrate has not set forth the
substance
of
the
information
received by him in the impugned
notice which is mandatory in
nature and non-compliance thereof
vitiates the entire proceedings.
Learned AGA opposed the
petition and has submitted that
impugned
proceedings
under
Section
111
Cr.P.C.
are
in
accordance with law.
In this respect, learned
counsel for the revisionist has
relied on 2010 (2) JIC 36 (All) (LB)
Rakesh Singh @ Rakesh Kumar
Singh vs. State of UP. The relevant
part of the judgment is reporduced
as under:-
8 All. Mohit & Ors. Vs. State of U.P. & Ors.
611
"........5. Learned counsel
for the petitioner placed reliance
on the law laid down by Hon'ble
Apex Court in the cases of Madhu
Limaye
v.
Sub-Divisional
Magistrate, Monghyr and others,
reported in 1970 (3) SCC 746,
Gopalanachari v. State of Kerala,
reported in A.I.R. 1981 SC 674
1980 (Supp) S.C.C. Page 649 SC
and
also
in
support
of
his
arguments cited law laid down by
this Court in the cases of, Siya
Nand Tyagi v. State of U.P.,
reported in 1993 (30) ACC page
146, Ranjeet Kumar and others v.
State of U.P. and others, reported
in 2002 (43) A.C.C. Page 627, Shiv
Kant Tripathi v. State of U.P. and
another, reported in 2005 (3) JIC
477 (All), Devendra Kumar v. State
of U.P. reported in 2006 (1) JIC
page 196 (All), Har Charan v. State
of U.P. another, reported in 2008
(2) JIC page 418, Lola @ Manish
Dhar Dubey @ Babloo v. State of
U.P., reported in 2009 (1) JIC 629
(All)
and
Mahesh
Prasad
Kannaujia v. State of U.P. reported
in 2009 (2) JIC 918 (All).
6. Chapter VIII of the Code
of Criminal Procedure, 1973 under
the heading "security for keeping
peace and for good behaviour"
authorizes the Magistrate to take
appropriate steps for preventing a
person from committing breach of
public peace.
7. Sections 110 and 111 of
the Code of Criminal Procedure,
1973 (Act No.2 of 1974) are
reproduced as under :-
"110. Security for good
behaviour from habitual offenders.-
When (an Executive Magistrate)
receives information that there is
within his local jurisdiction a
person who-
(a) is by habit a robber,
house-breaker, thief, or forger, or
(b) is by habit a receiver of
stolen property knowing the same
to have been stolen, or
(c) habitually protects or
harbours thieves, or aids in the
concealment or disposal of stolen
property, or
(d) habitually commits, or
attempts to commit, or abets the
commission of, the offence of
kidnapping, abduction, extortion,
cheating or mischief, or any offence
punishable under Chapter II of the
Indian Penal Code (45 of 1860), or
under Section 489-A, Section 489B, Section 489-C or Section 489-D
of that Code, or
(e) habitually commits, or
attempts to commit, or abets the
commission of, offences, involving
a breach of the peace, or
(f) habitually commits, or
attempts to commit, or abets the
commission of-
(I) any offence under one or
more of the following Act, namely :-
(a)
the
Drugs
and
Cosmetics Act, 1940 (23 of 1940);
(b) the Foreign Exchange
Regulation Act, 1973 (46 of 1973) ;
(c)
the
Employees'
Provident
Fund
(and
Family
Pension Fund) Act, 1952 (19 of
1952)
(d) the Prevention of Food
Adulteration Act, 1954 (37 of 1954)
;
(e)
the
Essential
Commodities Act, 1955 (10 of
1955) ;
612 INDIAN LAW REPORTS ALLAHABAD SERIES
(f)
the
Untouchability
(Offences) Act, 1955 (22 of 1955);
(g) the Customs Act, 1962
(52 of 1962) ;
(h) the Foreigners Act,
1946 (3 of 1946) ; or
(ii) any offence punishable
under any other law providing for
the prevention of hoarding or
profiteering or of adulteration of
food or drugs or of corruption, or
(g) is so desperate and
dangerous as to render his being at
large without security hazardous to
the community,
Such Magistrate may, in
the manner hereinafter provided,
require 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.
111. Order to be made.-
When a Magistrate acting under
Section 107, Section 108, Section
109 or 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.
8.
A
bare
perusal
of
provisions of Section 110 Cr.P.C.
would reveal that the proceedings
under Section 110 are taken to
prevent committing such acts, a
person as mentioned therein. The
object of Section 110 is to afford
protection to the public against a
repetition of crimes against their
person
or
property
;
not
a
punishment of the offender for his
past offences but securing good
bahaviour for the future. The
passing of preliminary order under
section 111 Cr.P.C. is a condition
precedent for taking further steps,
no final order in proceeding can be
passed
without
giving
an
opportunity to such person to show
cause.
9.
In
the
case
of
Gopalanachari (Supra), it was
observed by Hon'ble the Apex
Court "Law is what the law does,
even as freedom is what freedom
does. Going by that test, Section
110 cannot be permitted in our free
Republic to pick up the homeless
and the have-nots as it did when
under British subjection because
today to be poor is not a crime in
this country. George Bernard Shaw,
though ignorant of Section 110, did
sardonically comment that "the
greatest of evils and the worst of
crimes is poverty."
10.
Since
Section
110
Cr.P.C. confers drastic powers,
bind down suspected persons, but
not proved to have committed any
of the offences specified in various
clauses, the power should be used
with extreme caution and judicial
discretion and strictly according to
procedure laid down, so that it may
not be used as an engine of
oppressions, black-mail or private
vengeance and the Magistrate
should not be influenced by vague
rumour or gossip.
11.
In
the
case
of
Gopalanachari (Supra), Hon'ble
the Apex Court observed in para -6
of the judgment as under :-
8 All. Mohit & Ors. Vs. State of U.P. & Ors.
613
"The constitutional survival
of Section 110 certainly depends on
its obedience to Article 21, as this
Court has expounded. Words of
wide import, vague amplitude and
far too generalised to be safe in the
hands of the police cannot be
constitutionalised in the context of
Article 21 unless read down to be
as a fair and reasonable legislation
with reverence for human rights. A
glance at Section 110 shows that
only a narrow signification can be
attached to the words in clauses (a)
to (g), "by habit a robber......", " by
habit a receiver of stolen property
........",
"habitually
protects
or
harbours thieves.....", "habitually
commits or attempts to commit or
abets the commission of....." "is so
desperate and dangerous as to
render his being at large without
security
hazardous
to
the
community."
These
expressions,
when they become part of the
preventive chapter with potential
for deprivation of a man's personal
freedom up to a period of three
years, must be scrutinized by the
court closely and anxiously. The
poor are picked up or brought up,
habitual witnesses swear away
their
freedom
and
courts
ritualistically.
commit
them
to
prison and Article 21 is for them a
freedom under total eclipse in
practice. Courts are guardians of
human rights. The common man
looks upon the trial Court as the
protector.
The
poor
and
the
illiterate, who have hardly the
capability to defend themselves, are
nevertheless not 'non-persons', the
trial Judges must remember. This
Court in Hoskot case has laid down
the law that a person in prison
shall be given legal aid at the
expense of the State by the court
assigning counsel. In cases under
Section 110 of the Code, the
exercise is often an idle ritual
deprived of reality although a
man's liberty is at stake. We direct
the Trial Magistrates to discharge
their duties, when trying cases
under Section 110, with great
responsibility and whenever the
counter-petitioner is a prisoner
give him the facility of being
defended by counsel now that
Article 21 has been reinforced by
Article 39- A. Otherwise the order
to bind over will be bad and void.
We have not the slightest doubt that
expressions
like
'by
habit',
'habitual', 'desperate', 'dangerous',
'hazardous' cannot be flung in the
face of a man with laxity of
semantics. The court must insist on
specificity of facts and be satisfied
that one swallow does not make a
summer and a consistent course of
conduct convincing enough to draw
the rigorous inference that by
confirmed habit, which is second
nature, the counter-petitioner is
sure
to
commit
the
offences
mentioned if he is not kept captive.
Preventive sections privative of
freedom, if incautiously proved by
indolent judicial processes, may do
deeper injury. They will have the
effect of detention of one who has
not been held guilty of a crime and
carry
with
it
the
judicial
imprimatur, to boot. To call a man
dangerous is itself dangerous ; to
call a man desperate is to affix a
desperate adjective to stigmatize a
person
as
hazardous
to
the
614 INDIAN LAW REPORTS ALLAHABAD SERIES
community is itself a judicial
hazard unless compulsive testimony
carrying credence is abundantly
available.
A
sociologist
may
pardonably take the view that it is
the poor man, the man without
political clout, the person without
economic stamina, who in practice
gets caught in the coils of Section
110 of the Code, although, we as
court, cannot subscribe to any such
proposition
on
mere
assertion
without
copious
substantiation.
Even so, the court cannot be
unmindful of social realities and be
careful to require strict proof when
personal liberty may possibly be
the causality. After all, the judicial
process must not fail functionally
as
the
protector
of
personal
liberty."
12.
The
powers
under
section
110
Cr.P.C.
must
be
exercised after observing all the
formalities required under the law.
The Magistrate can apply his
power
only
on
convincing
testimony that the person is clear
and present danger to the society. It
is for the prevention, not the
punishment of the crime. The
Magistrate has to exercise his
discretion in judicious manner.

13.
The
passing
of
preliminary order under Section
111 Cr.P.C. is obligatory. An order
under section 111 Cr.P.C. is a
condition precedent for taking
further steps in any proceedings
under sections 107 - 110 Cr.P.C.
The first thing that the Magistrate
must do after receipt of the
information referred to in Sections
107 - 110 Cr.P.C. is to apply his
mind to such information and, if he
is satisfied that there is ground for
proceeding under this chapter, to
pass an order in writing under
section 111 Cr.P,C. The order under
section 111 Cr.P.C. must be in a
writing and broadly contain the
elements (i) Substance of the
information
received
under
Sections 107 - 110 Cr.P.C. ( as the
case
may
be),
(ii)
Upon
a
consideration of such information
he has formed the opinion that
there is a likelihood of a breach of
the peace and that it is necessary to
proceed under the relevant sections
(Sections 107 - 110 Cr.P.C. as the
case may be). He is not bound to
draw up an order under Section 111
Cr.P.C., merely because he has
received a Police Report or other
information, ( iii) the amount of the
bond to be executed, (iv) the term for
which the bond is to remain in force,
(v) The number, character and class
of sureties required, in cases under
Section 110 Cr.P.C., and, if so
required, under Sections 107 - 109
Cr.P.C. On the other hand, the order
under section 111 Cr.P.C. need not
give - (i) the source of the
information received, or supply a
copy of the Police report (ii) the list
of witnesses in support of the
information or the order, (iii) the
definite acts which the person intends
to commit where the substance of the
information is communicated, (iv) a
reference to Section 111 Cr.P.C. itself,
if the substantive section (107-110
Cr.P.C. as the case may be) is
mentioned in the order, (v) the period
of imprisonment to be suffered in
default of execution of the bond, (vi)
any extraneous matter.
8 All. Mohit & Ors. Vs. State of U.P. & Ors.
615
14. In the case of Madhu
Limaye (Supra), Hon'ble the Apex
Court observed "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
that 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."
15. From the perusal of the
record,
it
transpires
that
the
impugned notice under section 111
Cr.P.C. has been issued on a typed
format in a cyclo styled manner
and in the said typed format only
the name, date and police station
has been filled in the gaps and also
the Pargana Magistrate did not set
forth
the
substance
of
the
information received by him in the
impugned notice.
16. In the case of Madhu
Limaye (Supra) it was 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.
17. 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 order
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 present case also the
impugned order has been passed on
the
printed
format
without
recording any reasons and this
shows total non application of
judicial mind. The impugned order
in view of the aforesaid judgment is
not in accordance with law. The
notice under Section 111 Cr.P.C.
contains
allegations
on
printed/cyclostyle proforma which
indicates
per-conceived
notions
hence, the impugned notice under
challenge is void and proceedings
against the petitioner is nullity and
without jurisdiction as substance of
information received as required is
incomplete and ambiguous which
vitiates the entire proceedings.
Such notice is apparently abuse of
process of law and the Pragana
Magistrate has failed to comply
with the mandatory requirements of
616 INDIAN LAW REPORTS ALLAHABAD SERIES
Section 111 Cr.P.C. which vitiates
the preliminary order as well as the
consequential
proceedings.
The
procedure followed by learned
Magistrate is not in accordance
with law.
Considering the aforesaid
facts and law laid down by this
Court as well as the Apex Court in
the aforesaid cases, it is a fit case
to invoke the powers of this Court
under Section 482 Cr.P.C.
Consequently, the petition
under Section 482 Cr.P.C. is
allowed and the entire proceedings
relating to Case No. 55 of 2019
(State vs. Pradeep Singh) under
Section
111
Cr.P.C.
Village-
Rasoolabad,
Police
Station
Kaiserganj,
District
Bahraich
pending in the Court of Pargana
Magistrate, Kaiserganj, District
Bahraich and the notice issued are
quashed.
However,
learned
Magistrate shall be at liberty to
draw the fresh proceedings against
the petitioner in accordance with
the provisions of law."

11. Perused the impugned notice
issued under Section 130 of BNSS and also
considered the judgements placed before
this Court.

12. For coming to the conclusion,
it would be appropriate to take note of
relevant provisions of the Code of Criminal
Procedure, 1973 (in short "Cr.P.C.) (now
repealed) and BNSS.

13. Chapter VIII (Security for
keeping the peace and for good behaviour)
of Cr.P.C. deals with preventive actions and
Chapter IX (Security for keeping the peace
and for good behaviour) of BNSS also
deals with preventive action.

14. The relevant provisions related
to the present case of Chapter VIII of
Cr.P.C. are extracted herein-under:

"106. Security for keeping
the peace on conviction.-(1) When
a Court of Session or Court of a
Magistrate
of
the
first
class
convicts a person of any of the
offences specified in sub-section (2)
or of abetting any such offence and
is of opinion that it is necessary to
take security from such person for
keeping the peace, the Court may,
at the time of passing sentence on
such person, order him to execute a
bond, with or without sureties, for
keeping the peace for such period,
not exceeding three years, as it
thinks fit.
(2) The offences referred to
in sub-section (1) are-
(a) any offence punishable
under Chapter VIII of the Indian
Penal Code (45 of 1860), other
than an offence punishable under
Section 153-A of Section 153-B or
Section 154 thereof:
(b)
any
offence
which
consists of, or includes, assault or
using criminal force or committing
mischief;
(c) any offence of criminal
intimidation;
(d) any other offence which
caused, or was intended or known
to be likely to cause, a breach of
the peace.
(3) If the conviction is set
aside on appeal or otherwise, the
bond so executed shall become
void.
8 All. Mohit & Ors. Vs. State of U.P. & Ors.
617
(4) An order under this
section may also be made by an
appellate court or by a Court when
exercising its powers of revision.
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
tranquillity or to do any wrongful
act that may probably occasion a
breach of the peace or disturb the
public tranquillity and is of opinion
that there is sufficient ground for
proceeding, 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 tranquillity or to
do any wrongful act as aforesaid
beyond such jurisdiction.
108. Security for good
behaviour
from
persons
disseminating seditious matters.-
(1)
When
[an
Executive
Magistrate] receives information
that there is within his local
jurisdiction any person who, within
or without such jurisdiction,-
(i) either orally or in
writing or in any other manner,
intentionally
disseminates
or
attempts to disseminate or abets the
dissemination of,-
(a)
any
matter
the
publication of which is punishable
under Section 124-A or Section
153-A or Section 153-B or Section
295-A of the Indian Penal Code (45
of 1860), or
(b) any matter concerning
a Judge acting or purporting to act
in the discharge of his official
duties which amounts to criminal
intimidation or defamation under
the Indian Penal Code (45 of
1860),
(ii)
makes,
produces,
publishes
or
keeps
for
sale,
imports, exports, conveys, sells, lets
to
hire,
distributes,
publicly
exhibits or in any other manner
puts into circulation any obscene
matter such as is referred to in
Section 292 of the Indian Penal
Code (45 of 1860),
and the Magistrate is of
opinion that there is sufficient
ground
for
proceeding,
the
Magistrate 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
his good behaviour for such period,
not exceeding one year, as the
Magistrate thinks fit.
(2) No proceedings shall be
taken under this section against the
editor,
proprietor,
printer
or
publisher
of
any
publication
registered
under,
and
edited,
printed and published in conformity
with, the rules laid down in the
Press and Registration of Books
Act, 1867 (25 of 1867), with
618 INDIAN LAW REPORTS ALLAHABAD SERIES
reference to any matter contained
in such publication except by the
order or under the authority of the
State by the State Government in
this
109. Security for good
behaviour
from
suspected
persons.-When
[an
Executive
Magistrate] receives information
that there is within his local
jurisdiction Executive to conceal
his presence and there is reason to
believe that he is doing so with a
view to committing a cognizable
offence, the Magistrate may, in the
manner
hereinafter
provided,
require such person to shore cause
why he should not be ordered to
execute a bond, with or without
sureties for his good behaviour for
such period, not exceeding one
year, as the Magistrate thinks fit.
110. Security for good
behaviour
from
habitual
offenders. When an Executive
Magistrate] receives information
that there is within his local
jurisdiction a person who-
(a) is by habit a robber,
house-breaker, thief, or forger, or
(b) is by habit a receiver of
stolen property knowing the same
to have been stolen, or
(c) habitually protects or
harbours thieves, or aids in the
concealment or disposal of stolen
property, or
(d) habitually commits, or
attempts to commit, or abets the
commission of, the offence of
kidnapping, abduction, extortion,
cheating or mischief, or any offence
punishable under Chapter XII of
the Indian Penal Code (45 of
1860), or under Section 489-A,
Section 489-B, Section 489-C or
Section 489-D of that Code, or
(e) habitually commits, or
attempts to commit, or abets the
commission of, offences, involving
a breach of the peace, or
(f) habitually commits, or
attempts to commit, or abets the
commission of-
(i) any offence under one
or more of the following Acts,
namely:-
(a)
the
Drugs
and
Cosmetics Act, 1940 (23 of 1940);
[(b) the Foreign Exchange
Regulation Act, 1973 (46 of 1973)]:
(c)
the
Employees'
Provident Fund 56 [and Family
Pension Fund] Act, 1952 (19 of
1952);
(d) the Prevention of Food
Adulteration Act, 1954 (37 of
1954);
(e)
the
Essential
Commodities Act, 1955 (10 of
1955);
(f)
the
Untouchability
(Offences) Act, 1955 (22 of 1955);
(g) the Customs Act, 1962
(52 of 1962); 57[*]
[(h) the Foreigners Act,
1946; or]
(ii) any offence punishable
under any other law providing for
the prevention of hoarding or
profiteering or of adulteration of
food or drugs or of corruption, or
(g) is so desperate and
dangerous as to render his being at
large without security hazardous to
the community,
such Magistrate may, in the
manner
hereinafter
provided,
require such person to show cause
why he should not be ordered to
8 All. Mohit & Ors. Vs. State of U.P. & Ors.
619
execute a bond, with sureties, for
his good behaviour for such period,
not exceeding three years, as the
Magistrate thinks fit.
111. Order to be made.
When a Magistrate acting under
Section 107, Section 108, Section
109 or 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.

15. The relevant provisions
related to the present case of
Chapter IX of BNSS are extracted
herein-under:

"125. Security for
keeping
peace
on
conviction.-(1) When a
Court of Session or Court
of a Magistrate of the first
class convicts a person of
any
of
the
offences
specified in sub-section (2)
or of abetting any such
offence and is of opinion
that it is necessary to take
security from such person
for keeping the peace, the
Court may, at the time of
passing sentence on such
person,
order
him
to
execute a bond or bail
bond, for keeping the peace
for
such
period,
not
exceeding three years, as it
thinks fit.
(2) The offences
referred to in sub-section
(1) are-
(a)
any
offence
punishable under Chapter
XI of the Bharatiya Nyaya
Sanhita, 2023 (45 of 2023),
other
than
an
offence
punishable
under
subsection (1) of section 193
or section 196 or section
197 thereof;
(b)
any
offence
which
consists
of,
or
includes, assault or using
criminal
force
or
committing mischief;
(c) any offence of
criminal intimidation;
(d)
any
other
offence which caused, or
was intended or known to
be likely to cause, a breach
of the peace.
(3) If the conviction
is set aside on appeal or
otherwise, the bond or bail
bond so executed shall
become void.
(4) An order under
this section may also be
made
by
an
Appellate
Court or by a Court when
exercising its powers of
revision.
(See: Section 106
of
Criminal
Procedure
Code 1973.)
126. Security for
keeping peace in other
cases.-(1)
When
an
Executive
Magistrate
receives information that
any person is likely to
commit a breach of the
620 INDIAN LAW REPORTS ALLAHABAD SERIES
peace or disturb the public
tranquillity or to do any
wrongful
act
that
may
probably occasion a breach
of the peace or disturb the
public tranquillity and is of
opinion
that
there
is
sufficient
ground
for
proceeding, he may, in the
manner
hereinafter
provided,
require
such
person to show cause why
he should not be ordered to
execute a bond or bail
bond 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
tranquillity or to do any
wrongful act as aforesaid
beyond such jurisdiction.
(See: Section 107
of
Criminal
Procedure
Code 1973.)
127. Security for
good
behaviour
from
persons
disseminating
certain matters.-(1) When
an Executive Magistrate
receives information that
there is within his local
jurisdiction
any
person
who, within or without such
jurisdiction,-
(i) either orally or
in writing or in any other
manner,
intentionally
disseminates or attempts to
disseminate or abets the
dissemination of,-
(a) any matter the
publication of which is
punishable under section
152 or section 196 or
section 197 or section 299
of the Bharatiya Nyaya
Sanhita, 2023 (45 of 2023);
or
(b)
any
matter
concerning a Judge acting
or purporting to act in the
discharge of his official
duties which amounts to
criminal intimidation or
defamation
under
the
Bharatiya Nyaya Sanhita,
2023;
(ii)
makes,
produces,
publishes
or
keeps for sale, imports,
exports, conveys, sells, lets
to hire, distributes, publicly
exhibits or in any other
manner
puts
into
circulation
any
obscene
matter such as is referred
to in section 294 of the
Bharatiya Nyaya Sanhita,
2023, and the Magistrate is
of opinion that there is
sufficient
ground
for
proceeding, the Magistrate
may,
in
the
manner
hereinafter
provided,
require such person to
show cause why he should
not be ordered to execute a
8 All. Mohit & Ors. Vs. State of U.P. & Ors.
621
bond or bail bond, for his
good behaviour for such
period, not exceeding one
year, as the Magistrate
thinks fit.
(2) No proceedings
shall be taken under this
section against the editor,
proprietor,
printer
or
publisher
of
any
publication
registered
under, and edited, printed
and
published
in
conformity with, the rules
laid down in the Press and
Registration of Books Act,
1867 (25 of 1867) with
reference to any matter
contained
in
such
publication except by the
order
or
under
the
authority
of
the
State
Government
or
some
officer empowered by the
State Government in this
behalf.
(This
section
corresponds to Section 108
of
Criminal
Procedure
Code 1973.)
128. Security for
good
behaviour
from
suspected persons.-When
an Executive Magistrate
receives information that
there is within his local
jurisdiction a person taking
precautions to conceal his
presence and that there is
reason to believe that he is
doing so with a view to
committing a cognizable
offence,
the
Magistrate
may,
in
the
manner
hereinafter
provided,
require such person to
show cause why he should
not be ordered to execute a
bond or bail bond for his
good behaviour for such
period, not exceeding one
year, as the Magistrate
thinks fit.
(See: Section 109
of
Criminal
Procedure
Code 1973.)
129.