Shiv Swaroop Agnihotri vs State of U.P.

M.B. Farooqi, J.—This is an application u/s 482, Code of Criminal Procedure directed against the proceedings u/s 107, Code of Criminal Procedure pending against the applicant in the court of Sri S.N. Gupta, 11 Additional City Magistrate, Allahabad. The applicant has pressed the application on two grounds. Firstly, that the preliminary order does not comply with the provisions of Section 111, Code of Criminal Procedure. Secondly, that a copy of the-order made u/s 111, Code of Criminal Procedure was not served on the applicant along with the summons, as required u/s 114, Code of Criminal Procedure. Section 111, reads thus:

When a Magistrate acting u/s 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.

On the terms of this section it is clear that the preliminary order must satisfy the following conditions:

It must contain the substance of the information received.

It must specify the amount of the bond to be executed by the person against whom the proceedings are initiated.

The term for which the bond is to remain in force.

The number, character and class of sureties, if any, that the person proceeded against is required to provide.

It is a settled law that the provisions of Section 111 are mandatory and noncompliance thereof will vitiate the entire proceedings.

In the present case the preliminary order u/s 111, Code of Criminal Procedure gives the substance of the information received and then goes on to state:

Being satisfied from the report of the Station Officer, Police Station Cantonment, district Allahabad, I, S.N. Gupta order the opposite party to appear before this Court on 3rd of September, 1977, at 10 o''clock and to show cause why he should not execute personal bond to maintain peace during the tendency of the proceedings.

Clearly the order u/s 111, Code of Criminal Procedure does not specify either the amount or the term of the bond. The order partakes the character of an interim order for security for keeping peace u/s 116, Code of Criminal Procedure. It seems that the Magistrate has mixed up the two sections. However that may be, the order does not satisfy the requirements of Section 111, Code of Criminal Procedure. Therefore, the order as also the subsequent proceedings are vitiated and must be quashed. The first point must prevail. In that view, it will not be necessary for me to go into the second point raised by the learned Counsel, which I leave open.

In the result I allow this application and quash the preliminary order also the subsequent proceedings in case State v. Shiv Swaroop Agnihotri, u/s 107, Code of Criminal Procedure pending in the court of Additional City Magistrate II, Allahabad. It will be open to the Magistrate to pass fresh orders in the matter in accordance with law, if that is still necessary.