DEVENDRA KUMAR Vs. STATE OF U P

JUDGEMENT

(1.) -Heard learned counsel for the applicants and learned A.G.A. for the State.

(2.) THE order issuing notice under Section 111, Cr. P.C. and the proceeding initiated under Section 107/116, Cr. P.C. in pursuance to the aforesaid notice registered at case No. 649 of 2005 pending before the Ist Additional City Magistrate, Aligarh has been challenged in this application. THE main ground of challenge is that notices were issued in cyclostyle format and this alone shows that there is no application of mind by the Presiding Officer and learned Ist Additional City Magistrate signed the order mechanically. In the circumstances, entire proceedings initiated on the basis of a notice without recording any satisfaction of the Magistrate, that it calls for preventive measures, stand vitiated in law and is liable to be quashed. Reliance has been placed on the decision of this Court in the case of Siya Nand Tyagi v. State of U. P., 1993 (30) ACC 146, wherein this Court had quashed proceedings on account of the reason that initiation of proceedings under Sections 111, 151, 107, 116 and 114 were on the basis of a notice in a printed format and there was complete absence of application of mind by the Magistrate concerned. Thus, it was concluded that it is not a judicial order but passed mechanically. While quashing the proceedings, reliance has been placed in the case of Mohan Lal v. State of U. P., 1997 ACC 333, the Court had observed "there are a series of decisions, in which it has been held that provisions contained in Section 111 of the Code are mandatory and the non-compliance thereof vitiates the entire proceedings." Similarly, in the case of Madhu Limaye v. S.D.M. Mongyr, the Apex Court, in para 36 of its judgment observed : "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 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 curtailed 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 the instant case, a copy of notice annexed as Annexure-2 to the affidavit filed in support of this application is on a printed format and the blank space has been filled by mentioning name of the accused. In the same circumstances, this Court had also quashed proceedings in another Criminal Misc. Application No. 824 of 2005, which has been annexed as Annexure-3 to the affidavit filed in support of this application.