# Sundar Bhai Ambalal v. State of Gujarat

- **Citation:** (2010) 1 ILRA 364
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2010-04-22
- **Case number:** Criminal Misc. Application No. 11363 of 2010
- **Bench:** Shri Kant Tripathi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sundar-bhai-ambalal-v-state-of-gujarat-41483
- **Pages:** 3

## Headnote

Code of Criminal Procedure Code-Section
111-Noitce on printed proforma-without
application of judicial mind-substance of
information not disclosed-held-illegalquashed with liberty to issue fresh notice
in accordance with law.

Held: Para 8

In my opinion, if the apprehension of
breach of peace was in regard to the
possession of the land, the appropriate
course for the Executive Magistrate was
to initiate a proceeding under section
145 of the Code instead of proceeding
under section 107/116 of the Code. The
satisfaction recorded by the Magistrate
in
the
notice
in
regard
to
the
apprehension of breach of peace was
already printed and only gaps have been
filled up, therefore, the satisfaction was
not recorded after application of the
mind to the facts of the case.
Case law discussed:
[1993(3) ACC page 146], [1993(30) ACC page
227].

## Text

364 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
market or by selling the same on the
Government shops and the money collected
may be deposited in the court concerned or
with the authority concern, subject to the
result of the case but no such arrangements
was made neither by the trial court nor by
the authorities who seized the Wheat and
kept it in the Go-down of Mandi Samiti.
Possibility cannot be ruled out that by lapse
of time, it may perish. Learned counsel for
the applicant cited law 2003 (46) ACC 223
Sundar Bhai Ambalal vs. State of Gujarat
and 2008 (1) ADJ 321 Virendra Vs. State.
Hon'ble Supreme Court and this Court
have given directions about the disposal of
such type of items during pendency of the
case. It will be appropriate for the trial court
to pass necessary orders in the light of law
laid down above by the courts referred
above. Learned Magistrate may also direct
the authorities of the district concerned for
disposal of the seized Wheat according to
law and the price received be deposited in
the Court or with some Government
authority subject to the result of the matter.
Empty bags will be kept in safe custody so
that they may be produced in the Court.

10. With the observation made
above, the application is disposed of.

11. Copy of the order be sent to the
trial court for immediate compliance.
---------
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 22.04.2010

BEFORE
THE HON'BLE SHRI KANT TRIPATHI, J.

Criminal Misc. Application No. 11363 of 2010

Dau Dayal

...Applicant
Versus
State of U.P. & another ...Opposite Party
Counsel for the Applicant:
Sri K.K. Dwivedi

Counsel for the Opposite Party:
Govt. Advocate

Code of Criminal Procedure Code-Section
111-Noitce on printed proforma-without
application of judicial mind-substance of
information not disclosed-held-illegalquashed with liberty to issue fresh notice
in accordance with law.

Held: Para 8

In my opinion, if the apprehension of
breach of peace was in regard to the
possession of the land, the appropriate
course for the Executive Magistrate was
to initiate a proceeding under section
145 of the Code instead of proceeding
under section 107/116 of the Code. The
satisfaction recorded by the Magistrate
in
the
notice
in
regard
to
the
apprehension of breach of peace was
already printed and only gaps have been
filled up, therefore, the satisfaction was
not recorded after application of the
mind to the facts of the case.
Case law discussed:
[1993(3) ACC page 146], [1993(30) ACC page
227].

(Delivered by Hon'ble Shri Kant Tripathi, J.)

1. Heard learned counsel for the
applicant and the learned AGA and
perused the record.

2. This is a petition under section
482 of the Code of Criminal Procedure (in
short "the Code") to quash the notice
dated
21.12.2009
issued
by
the
respondent no. 2 under section 111 of the
Code.

3. The main ground for challenging
the notice is that the learned Executive
Magistrate has issued the notice on a
1 All] Dau Dayal V. State of U.P. and another
365
printed proforma and did not apply his
mind before calling for the applicant to
show cause.

4. The learned counsel for the
applicant placed reliance on the case of
Siya Nand Tyagi v State of U.P.
[1993(3) ACC page 146], the excerpts of
which are being reproduced below:

"The case presents a sorry state of
affairs. The order under Sec. 111 of the
Code has been passed on a printed
proforma which blanks have been filled in
by the learned Magistrate. Judicial orders
are to be passed after applying mind to
the facts and circumstances of the case. I
have gone through the printed order
passed under Sec. 111. It is distressing to
note that there is no mention of the
substance of information received by the
learned Sub-Divisional Magistrate on
which he took action. Making an order
under Sec. 111 of the Code is not an idle
formality. It should be clear on the face of
the order under Sec. 111 that the order
has been passed after application of
judicial
mind.
If
no
substance
of
information is given in the order under
Sec. 111 the person against whom the
order has been made will remain in
confusion... "

5. Similarly he placed reliance on
the case of Naresh Kumar Jain &
others v State of U.P. [1993(30) ACC
page 227], the excerpts of which are also
being reproduced below:

".....The order made under Sec. 111
in the present case does not at all disclose
the substance of information received by
the Magistrate. The order has been
passed in a most mechanical manner.
It is distressing to note that the
repeated pronouncement of this court as
also the pronouncements made by the
Supreme Court have fallen on the deaf
ears of our Executive Magistrates who
still treat the making of order under Sec.
111 an idle formality. Unfortunately due
to lack of clear perception of law the
learned VIIIth Additional Sessions Judge,
Agra has also put his seal of approval on
the invalid order under Sec. 111. In
modern time the judiciary, like an other
State Organ, is under scrutiny of the
public and rightly so because in a
democracy the people are the ultimate
masters of the country and all State
organs are meant to serve the people. The
lack of vigil on the part of the lower
revisional court is regrettable."

6. Apart, it was also submitted that
the notice is vague and does not disclose
at all the substance of information
received by the Magistrate.

7. A perusal of the impugned notice
reveals that there was a dispute between
the applicant and one Brijesh Kumar in
regard to a plot and due to which there
was apprehension of breach of peace.

8.

In
my
opinion,
if
the
apprehension of breach of peace was in
regard to the possession of the land, the
appropriate course for the Executive
Magistrate was to initiate a proceeding
under section 145 of the Code instead of
proceeding under section 107/116 of the
Code. The satisfaction recorded by the
Magistrate in the notice in regard to the
apprehension of breach of peace was
already printed and only gaps have been
filled up, therefore, the satisfaction was
not recorded after application of the mind
to the facts of the case.
366 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
9. In view of the fact that the notice
(annexure 2 to the petition) has been
prepared on a printed proforma without
application of mind and is silent in regard
to the substance of information for
initiating the proceedings under sections
107/116 of the Code, the impugned notice
is quashed. It will however be open to the
learned Executive Magistrate to issue a
fresh notice under section 111 of the Code
after making due compliance of the legal
requirements, provided apprehension of
breach of peace subsists on the date of
issue of the fresh notice.

10. With the aforesaid observation,
the petition is allowed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 23.04.2010

BEFORE
THE HON'BLE R.K. AGRAWAL, J.
THE HON'BLE JAYA SHREE TIWARI, J.

Civil Misc. Writ Petition No. 29390 of 2008

Rafiq Ahmad

...Petitioner
Versus
Union of India and others ...Respondents

Counsel for the Petitioner:
Sri K.P. Agrawal
Sri Ghazala Bano Quadri

Counsel for the Respondents:
C.S.C.,A.S.G.I.,
Sri Maneesh Trivedi

Constitution of India Art. 226-Release of
Vehicle-financed
by
bank-default
in
payment of installments-bank forcible
seized
the
vehicle
without
taking
recourse of law-in counter affidavit plea
taken by bank regarding seizer by the
agent-held-such action of bank under
the teeth of law laid down by the Apex
Court-direction to restore the possession
of vehicle in actual running conditionwithout charging any interest on loan
during period from the date of seizer to
the actual date of restoration of the
possession-towards
compensation
excluding
this
period-from
time
prescribed in agreement.

Held: Para 8

In this view of the matter, we are of the
considered
opinion
that
the
action
adopted by the bank can not be justified
in law and need to be deprecated. The
bank is, therefore, directed to forthwith
return the vehicle U.P. 70 AT 6632 to the
petitioner in a perfect running condition.
As the petitioner has been deprived
illegally and without the authority of law
from running the vehicle in question from
6.5.2008, the petitioner is entitled to be
compensated. Instead of quantifying the
amount of compensation, we deem fit and
proper and also in the interest of justice
that the bank should not demand any
interest on the amount advanced for the
aforesaid period beginning from 6.5.2008
till the date when the vehicle is returned.
The repayment schedule should also be
extended by excluding the period when
the vehicle was forcibly seized and was in
possession of the bank. We, therefore,
direct that for the period from 6.5.2008
when the vehicle was seized illegally till
its actual return, the bank shall not
realise any interest on the amount of the
loan advanced to the petitioner and,
further for the aforesaid period, there
shall be a moratorium of repayment of
the instalment and it shall begin only
after one month from the date of the
return of the vehicle. As the interest of
the petitioner has been taken care of by
the aforesaid directions, we are not
awarding any cost to the petitioner.

(Delivered by Hon'ble R.K. Agrawal, J.)

1. By means of the present writ
petition, the petitioner seeks a writ, order
or direction in the nature of mandamus