# Rajendra Prasad Patel & Anr v. State of U.P. & Ors. 294 INDIAN LAW REPORTS ALLAHABAD SERIES

- **Citation:** (2022) 3 ILRA 293
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-02-07
- **Case number:** Application U/S 482 No.1955 of 2022
- **Bench:** Mrs. Manju Rani Chauhan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/rajendra-prasad-patel-anr-v-state-of-u-p-ors-294-indian-law-reports-allahabad-48182
- **Pages:** 7

## Headnote

A. Criminal Law - Code of Criminal
Procedure, 1973 - Section 482 - For
Quashing
Notice
u/Ss
107/116/111
Cr.P.C.- Even in administrative reasons
reasons should be recorded as it is
incumbent upon the authorities to pass a
speaking and reasoned order- S.D.M.
while issuing the impugned notice has
not
complied
with
the
mandatory
provisions of Section 111 Cr.P.C. and has
issued the notice in a printed proforma
and has only filled the dates therein. He
has also not recorded his opinion that
there exist sufficient ground to take
action u/S 107 Cr.P.C., the details of
information received are also not given,
which could have formed the basis for
apprehending
breach
of
peace
and
therefore notice issued by S.D.M. may be
set aside to be a vague notice, which
does
not
fulfill
the
requirement
of
Section 111 Cr.P.C.

Application allowed. (E-12)

List of Cases cited:-

## Text

3 All. Rajendra Prasad Patel & Anr. Vs. State of U.P. & Ors.
293

'60. 'Incuria' literally means
'carelessness'. In practice per incuriam is
taken to mean per ignoratium. The Courts
have developed this principle in relaxation
of the rule of stare decisis. Thus, the
'quotable in law' is avoided and ignored if
it is rendered, in ignorance of a statute or
other binding authority. While dealing with
observations made by a seven JudgesBench in India Cement Ltd. etc. etc. v.
State of Tamil Nadu etc. etc., AIR 1990
SC 85, the five Judges-Bench in State of
West Bengal v. Kesoram Industries Ltd. &
Ors., (2004) 10 SCC 201: (AIR 2005 SC
1646: 2004 AIR SCW 5998), observed as
under: -

'A doubtful expression occurring
in a judgment, apparently by mistake or
inadvertence, ought to be read by assuming
that the Court had intended to say only that
which is correct according to the settled
position of law, and the apparent error
should be ignored, far from making any
capital out of it, giving way to the correct
expression which ought to be implied or
necessarily read in the context,.........A
statement
caused
by
an
apparent
typographical or inadvertent error in a
judgment of the Court should not be
misunderstood as declaration of such law
by the Court.'

12. Thus, 'per incuriam' are those
decisions which are given in ignorance or
forgetfulness of some statutory provision or
authority binding on the Court concerned, or a
statement of law caused by inadvertence or
conclusions that have been arrived at without
application of mind or proceeded without any
reason so that in such a case some part of the
decision or some step in the reasoning on
which it is based, is found, on that account to
be demonstrably wrong. It is also well settled,
if intricacies of relevant provisions are either
not noticed or brought to the notice of the
Court or if the view is expressed without
analysing the said provision or the settled
position of law, such a view cannot be treated
as binding precedent. The Division Bench in
Virendra Singh (supra) did not notice the
judgment of a larger Bench in Mata Sewak
(supra) upholding the validity of the
notification making offence under Section 506
cognizable and non-bailable.

13. In view of the law laid down in
Mata Sewak (supra) followed in Praveen
Kumar
(supra)
and
Bhagwan
Singh
(supra), Section 506 is cognizable and nonbailable and has to be tried as a State case not
as complaint case.

14. The argument advanced by learned
counsel for the applicant that submission of
charge-sheet should be treated as complaint
under Section 2(d) of Code of Criminal
Procedure cannot be accepted at this stage.
Hence, order taking cognizance against the
applicant need not be interfered.

15. In the circumstances, the petition
being devoid of merit is, accordingly,
dismissed. However, the applicant is at liberty
to move application for discharge at an
appropriate stage.
----------
(2022)03ILR A293
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 07.02.2022

BEFORE

THE HON'BLE MRS. MANJU RANI
CHAUHAN, J.

Application U/S 482 No.1955 of 2022

Rajendra Prasad Patel & Anr. ...Applicants
Versus
State of U.P. & Ors. ...Opposite Parties
294 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel for the Applicants:
Sri Piyush Kant Vishwakarma

Counsel for the Opposite Parties:
A.G.A.

A. Criminal Law - Code of Criminal
Procedure, 1973 - Section 482 - For
Quashing
Notice
u/Ss
107/116/111
Cr.P.C.- Even in administrative reasons
reasons should be recorded as it is
incumbent upon the authorities to pass a
speaking and reasoned order- S.D.M.
while issuing the impugned notice has
not
complied
with
the
mandatory
provisions of Section 111 Cr.P.C. and has
issued the notice in a printed proforma
and has only filled the dates therein. He
has also not recorded his opinion that
there exist sufficient ground to take
action u/S 107 Cr.P.C., the details of
information received are also not given,
which could have formed the basis for
apprehending
breach
of
peace
and
therefore notice issued by S.D.M. may be
set aside to be a vague notice, which
does
not
fulfill
the
requirement
of
Section 111 Cr.P.C.

Application allowed. (E-12)

List of Cases cited:-
1. Ranjit Kumar & ors. Vs St. of U.P. & ors.
2004(45) ACC 627

2. Aurangzeb & ors. Vs St. of U.P. & anr.
2004(50) ACC 734

3. ShiVs Kant Tripathi Vs St. of U.P. & anr.
2006(1) UPCrR

4. Km. Shri Lekha Vidyarthi & ors. Vs St. of U.P.
& ors. AIR 1991 SC 537

5. Madhulimaye Vs S.D.M. Munger AIR 1971 SC
2486

6. Mohan Lal Vs St. of U.P. 1977 ACC 333
(Delivered by Hon'ble Mrs. Manju Rani
Chauhan, J.)

1.

Heard
Mr.
Piyush
Kant
Vishwakarma, learned counsel for the
applicants and Mr. Pankaj Srivastava,
learned A.G.A. for the State as well as
perused the entire material available on
record.

2. This application under Section 482
Cr.P.C. has been filed to quash the notice
dated 22nd December, 2021 under Sections
107/116/111 Cr.P.C. issued against the
applicants and the consequential orders
passed by the Sub-Divisional Magistrate,
Mariahu, District-Jaunpur.

3. Relevant facts of the present case
are that the dispute relates to land bearing
new Araji No. 198A (old Gata/Araji No.
215/2) area 20 decimal situated in VillageAhirauli, Paragana and Tehsil Mariahu,
District-Jaunpur, which has been old Abadi
of applicants' grand-father, namely, Bhagi
in which kachcha house of the applicants'
grandfather was built and trees were also
planted by the grandfather of the applicant
over the same land. During consolidation
operation in the aforesaid village, the said
land being Abadi land (residential land)
was out of consolidation proceeding and
was recorded in the name of descendants of
Bhagi i.e. grandfather of the applicants,
namely, Ramshiroman and others, which is
evident from C.H. Form 41 and 45, a copy
of which has been enclosed as Annexure-1
to the affidavit accompanying the present
applicant.

4. When, Rama Shankar Patel and
Ram Achal Patel, sons of Jharihag resident
of
the
same
village,
who
are
not
descendants of Bhagi, were cutting trees
and making pakka house over the said land,
the applicants objected, due to which, the
Police of Police Station-Mariyahu, DistrictJaunpur has submitted a Chalani report
3 All. Rajendra Prasad Patel & Anr. Vs. State of U.P. & Ors.
295
dated 26th November, 2021 under Sections
107/116 Cr.P.C. against the applicants, a
copy of which has been enclosed as
Annexure-3 to the affidavit accompanying
the present application. By means of
Chalani report dated 26th November, 2021,
it was stated that due to dispute with
respect to Abadi land, there is litigation
between the parties, who may commit an
act, which will lead to disturbance. As a
result, there is every possibility of breach
of peace on account of the applicants.

5. Upon the aforesaid Chalani report,
a Case No. 5164 was registered and the
Sub-Divisional
Magistrate,
Mariahu,
Jaunpur issued impugned notice dated 22nd
December,
2021
under
Section
107/116/111
Cr.P.C.
requiring
the
applicants to show cause as to why they
would not be directed to furnish personal
bonds of Rs. 50,000/- each for maintaining
peace for a period of six months.

6. The objection raised by counsel for the
applicant is that impugned notice has been issued
without application of mind and notice is vague
and ambiguous. Only on the basis of Chalani
report, the Sub-Divisional Magistrate has issued
the same and he has not recorded his prima facie
satisfaction as to why and how, the applicants
may be threat for breach of peace. In the
impugned notice, no prima facie direct or
indirect evidence has been mentioned on the
basis of which it can be said that there is
apprehension of breach of peace from the
applicants due to dispute of residential land.
Learned counsel for the applicants, therefore,
submits that proceeding on the basis of said
notice is a nullity. Reliance has been placed on a
number of decisions of this Court in the case of
Ranjeet Kumar and others Vs. State of U.P.
and others reported in 2002 (45) ACC page
627, wherein it has been held that Upper City
Magistrate has no jurisdiction or authority to
proceed on the basis of this void notice.

7. Similar view has been expressed in the
case of Aurangzeb and others State of U.P.
and another reported in 2004 (50) ACC page
734. Paragraph of the said decision is quoted
below:

"It is submitted that notice under
challenge is void and proceedings against the
applicants are nullity without jurisdiction as
substance of information received as required is
incomplete, vague and ambiguous and notice is
only defective. It is also submitted on report of
police on 21.6.2004, a notice under Section 111
Cr.P.C. to initiate proceedings under Sections
107/116 Cr.P.C. is served upon the applicants
vide Annexure-1 and the impugned notice does
not fulfill the requirements of mandatory
provisions of Section 111 Cr.P.C., thus the notice
is null and void and the proceedings before the
learned Magistrate are a nullity and the
impugned notice is on a printed proforma in
which gaps are filled and the substances of
information received as set forth is wholly
incomplete, vague and ambiguous. It is further
submitted that the learned Magistrate (S.D.M.)
has no jurisdiction or authority to proceed on the
basis of this void notice and he has placed
reliance in the case of Ranjeet Kumar and others
V. State of U.P. and others."

8. Similar view has also been taken by
the Single Bench of this Court in the case
of Shiv Kant Tripathi Versus State of
U.P. & Another reported in 2006 (1)
UPCrR.

9. On the cumulative strength of the
aforesaid,
learned
counsel
for
the
applicants submits that the impugned notice
cannot be legally sustained and is liable to
be quashed
296 INDIAN LAW REPORTS ALLAHABAD SERIES

10. Per contra, the learned A.G.A. has
opposed the prayer so made on behalf of
the applicants but he has fairly conceded
that the impugned notice suffers from
vagueness.

11. Before coming to the aforesaid
submissions advanced by the learned
counsel for the applicants, it would e
worthwhile to reproduce Sections 107, 111
and 116 Cr.P.C., which read as follows:

"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,1with 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.

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.

116. Inquiry as to truth of
information.

(1) When an order under section
Ill has been read or explained under
section 112 to a person present in Court, or
when any person appears or is brought
before a Magistrate in compliance with, or
in execution of, a summons or warrant,
issued under section 113, the Magistrate
shall proceed to inquire into the truth of the
information upon which action has been
taken, and to take such further evidence as
may appear necessary.

(2) Such inquiry shall be made,
as nearly as may be practicable, in the
manner
hereinafter
prescribed
for
conducting trial and recording evidence in
summons- cases.

(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 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
3 All. Rajendra Prasad Patel & Anr. Vs. State of U.P. & Ors.
297
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.

(4) For the purposes of this
section the fact that a person is an habitual
offender or is so desperate and dangerous
as to render his being at large without
security hazardous to the community may
be proved by evidence of general repute or
otherwise.

(5) Where two or more persons
have been associated together in the matter
under inquiry, they may be dealt with in the
same
or
separate
inquiries
as
the
Magistrate shall think just.

(6) The inquiry under this section
shall be completed within a period of six
months from the date of its commencement,
and if such inquiry is not so completed, the
proceedings under this Chapter shall, on
the expiry of the said period, stand
terminated unless, for special reasons to be
recorded
in
writing,
the
Magistrate
otherwise directs: Provided that where any
person has been kept in detention pending
such inquiry, the proceeding against that
person, unless terminated earlier, shall
stand terminated on the expiry of a period
of six months of such detention.

(7) Where any direction is made
under sub- section (6) permitting the
continuance of proceedings, the Sessions
Judge may, on an application made to him
by the aggrieved party, vacate such
direction if he is satisfied that it was not
based on any special reason or was
perverse."

12. I have gone through the records of
the present applicants, perused Sections
107, 111 and 116 Cr.P.C. and considered
the submissions made by the learned
counsel for the applicants. I find substance
in the submissions made by the learned
counsel for the applicants that such notice
like the present one suffers from vagueness.

13. It is settled proposition of law that
even in administrative matters, the reasons
should be recorded as it is incumbent upon
the authorities to pass a speaking and
reasoned order. In Kumari Shrilekha
Vidyarthi & Ors. Vs. State of U.P. &
Ors., reported in AIR 1991 SC 537, the
Apex Court has observed as under:-

"Every such action may be
informed by reason and if follows that an
act un-informed by reason is arbitrary, the
rule of law contemplates governance by
law and not by humour, whim or caprice of
the men to whom the governance is
entrusted for the time being. It is the trite
law that "be you ever so high, the laws are
above you." This is what a man in power
must remember always."

14. In the case of Madhu Limaye Vs.
S.D.M. Monghyr (2) reported in AIR 1971
SC 2486, the Apex Court, in para 36 of its
judgment has observed as under:-
298 INDIAN LAW REPORTS ALLAHABAD SERIES

"We have seen the provisions of
Sec. 107. That section says that action is to
be taken in the manner here-in-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 solicitous that this
liberty should only be curtained according
to its own procedure and not according to
the whim of the Magistrate concerned. It
behoves us, therefore, to emphasize 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
general public."

15. In this very case the Apex Court
went on to observe in Para 37 as under:-

"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. 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 the present case, the learned
Sub-Divisional Magistrate, while issuing
the impugned notice dated 22nd December,
2021 has not complied with the mandatory
provisions, as enumerated in Section 111
Cr.P.C. and has issued the notice in a
printed proforma and has only filled the
dates therein. The learned Sub-Divisional
Magistrate has also not recorded his
opinion that there exists sufficient ground
to take action under the provisions of
Section 107 Cr.P.C. In the impugned
notice, the details of the information
received are not given, which could have
formed the basis for apprehending breach
of peace, therefore, the notice issued by the
Sub-Divisional Magistrate, Jaunpur dated
22nd December, 2021 may be set aside to
be a vague notice, which does not fulfill the
requirement of Sections 111 Cr.P.C.

17. This Court in the case of Mohan
Lal Versus State of U.P., reported in 1977
ACC
page
333
has
expressed
its
dissatisfaction as under:-

"there are 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 and 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 u/s 111 an idle
formality."

18. In view of the law and the
reasons, this Court is of the opinion that the
impugned notice u/s 107/116 Cr.P.C which
has been issued by the Sub-Divisional
Magistrate dated 22nd December, 2021
mechanically in printed proforma without
spelling out the substance of facts to be met
by the applicants, being wholly illegal and
void, is is liable to be quashed.

19.

Accordingly,
the
present
application under Section 482 Cr.P.C.
deserved to be allowed.

20. This order shall not preclude the
Sub-Divisional
Magistrate,
Mariahu,
3 All. Chavi Lal & Ors. Vs. State of U.P. & Anr.
299
Jaunpur to issue fresh notice in accordance
with law.
----------
(2022)03ILR A299
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 05.03.2022

BEFORE

THE HON'BLE SURESH KUMAR GUPTA, J.

Application U/S 482 No. 2180 of 20018

Chavi Lal & Ors. ...Applicants
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicants:
Rama Kant Dixit

Counsel for the Opposite Parties:
G.A.

A. Criminal Law - Code of Criminal
Procedure, 1973 -Sections 227 & 239 -
At the time of discharge application only it is
to be seen whether prima facie case is made
out? The detailed enquiry is not required at
the time of framing of charge. The accused
can be discharges only when the charge is
groundless.

Application dismissed. (E-12)

List of Cases cited:-

1. Dilawar Babu Kurane Vs St. of Mah. (2002) 2
SCC 135

2. Yogesh@Sachin Jagdish Joshi Vs St. of Mah.
(2008)10 SCC 394

3. Palvinder Singh Vs Balwinder Singh & ors.
(2009)2 SCC(Cri.)850

4. Sajjan Kumar Vs C.B.I. JT 2010(10) SC 413
(Delivered by Hon'ble Suresh Kumar
Gupta, J.)

1.

Heard
learned
counsel
for
petitioners and learned A.G.A. for the State
and perused the material available on
record.

2. By means of this petition under
Section 482 Cr.P.C. the petitioner have
sought following reliefs:-

"Wherefore, it is most respectfully
prayed that this Hon'ble Court may
graciously
be
pleased
to
set
aside
impugned order dated 08.02.2018 passed
by learned Sessions Judge, Shravasti
whereby revision of the petitioners against
the judgment and order dated 19.12.207
passed
by
learned
Chief
Judicial
Magistrate Shravasti has been rejected
without application of judicious mind."

3. Brief facts of the case are as
under:-

The revenue record i.e. Khatauni
was inspected by Tehsildar Bhinga (first
informant) of Village Panchayat Bechuwa
and it was found that Khata No. 313/4.381
acre was recorded in the name of Awadh
son of Mohan in 1395 to 1400 Fasli but the
said land was fraudulently, intentionally
and illegally was recorded/mutated in the
name of Smt. Belwa D/o Awadh, wife of
Chhavi Ram as legal heirs by Naib
Tehsildar Druv Nath Pandey on 28.12.1989
and also mentioned the fake caste in
column 13. Likewise Khata No. 482/4.062
acre was also mutated in the name of Smt.
Pushpa Devi alias Prema Devi showing the
daughter of Ram Pheran S/o Jamuna Prasad
also interring the fake caste in Column 13.
It
was
further
narrated
that
the
Investigating
Officer
investigated
the
matter and recorded the statement under
Section 161 Cr.p.C. and submitted the
charge sheet against the petitioners and also