BHAGABAN SETHI Vs. BHUBANANANDA SAMANTRAY

JUDGEMENT

(1.) Some of the members of second party in a proceeding under Section 107 of the Code of Criminal Procedure (herein after referred to as the 'Code') are the petitioners in this application under Section 482, read with Section 401 of the Code for quashing the order under Section 107 of the Code.

(2.) THE petitioners claim that most of them are employees either under the Government or under some public sector undertakings. It is stated that the proceeding under Section 107 of the Code has been initiated on the basis of frivolous allegations made by the first party -apposite party. It is submitted that the notice under Aunexure -1 is invalid on the pre -conditions for initiating a proceeding under Section 107(1) of the Code have not been fulfilled. It is further submitted that since no enquiry has been conducted before initiation of the proceeding under Section 107(1) of the Code, the proceeding should be quashed. It is further submitted that along with the notice under Annexure -1, no station diary entry nor FIR was enclosed and as such the notice was vitiated.

(3.) IT is not necessary to refer in detail to the various decisions cited on behalf of the petitioners as all these decisions have been considered in Crl. Misc. Case No. 10 of 1995 decided on 2 -4 -1996 wherein it has been stated that it is not obligatory on the part of the Executive Magistrate to conduct a preliminary enquiry before deciding to proceed under Section 107(1) of the Code. It has been further held that service of notice in an irregular manner without containing the substance of the information received and without being accompanied with the order under Section 111 of the Code does not ipso facto vitiate the proceeding or even the notice, and a person receiving such defective notice should appear before the Magistrate and pray for compliance with the provisions of Sections 111, 113 and 114 of the Code.