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2025 DAILYLAW 3520 (HP)

Ajay Thakur v. State of H. P.

2025-09-17

Rakesh Kainthla

body2025
JUDGMENT : Rakesh Kainthla, J. The present petition is directed against the order dated 30th January 2025, passed by the learned Sub Divisional Magistrate (SDM), Amb, District Una, H.P. 2. Briefly stated, the facts giving rise to the present petition are that the police filed a complaint under Sections 126 and 169 of Bhartiya Nagrik Suraksha Sanhita (BNSS), 2023, against Darshan Singh and Parikshit Thakur. It was asserted that Parikshit Thakur and Darshan Singh had attacked the informant, Kamlesh Kumari, with a darat on 30th October 2024. They abused and threatened to kill her. The police conducted the investigation and found that the dispute pertained to taking the tractor through the field. The parties had sought 3–4 days to settle the dispute, but it remain unsolved. Darshan Singh has quarrelsome nature. He frequently abused the informant and her family members. They had an apprehension of danger from Darshan Singh; hence, it was prayed that action be taken against Darshan Singh and Parikshit Thakur. 3. Learned SDM held that a possibility of breach of peace existed; hence, he ordered that a notice be issued to the respondents to show cause why they should not be bound to keep peace for a period of six months without Surety in the sum of Rs.20,000 and listed he matter on 13th December 2014. 4. The matter was taken up on 30th January 2025, when the informant and Suman Kumari made separate statements. The informant, Kamlesh Kumari, stated that Arun Kumar, Raman Kant, Ajay Thakur, Mahindra Pal, and Krishan Kumar were also involved in the quarrel, and the informant apprehended danger from them. They also quarrelled with her and threatened to kill her. She and her son, Vinod Kumar, feared their lives. Suman Kumari also stated that Arun Kumar, Ramakant, Ajay Thakur, Mahinder Pal, and Krishan Kumar were involved in the quarrel. They quarrelled with her for no reason. She feared for her life from them. She resides in her home with her mother-in-law. She and her mother-in-law feared for their lives and prayed that action should be taken against the persons she named. 5. They quarrelled with her for no reason. She feared for her life from them. She resides in her home with her mother-in-law. She and her mother-in-law feared for their lives and prayed that action should be taken against the persons she named. 5. Learned SDM held that after careful examination of the statements, he believed that there was a possibility of breach of peace; hence, he ordered that notice under section 111 of BNSS, be issued to Ajay Thakur, Arun Kumar, Ramakant, Mahindra Pal and Krishan Paul, as per the addresses mentioned in the statements. 6. Being aggrieved by the order passed by the learned SDM, the petitioner, Ajay Thakur, has filed the present petition for quashing it. It has been asserted that the order passed by the learned SDM, is without jurisdiction and arbitrary. Petitioner’s name was not mentioned in the complaint filed before the court. The police also did not find that the petitioner was involved in the incident. The petitioner's name was included on vague statements without any preliminary enquiry. The matter was not listed for recording the statements of witnesses, and learned SDM erred in recording the statements. Learned SDM had no credible information for issuing the notice. Therefore, it was prayed that the present petition be allowed and the order passed by the learned SDM be set aside. 7. The petition was opposed by the State by filing a reply, making a preliminary submission regarding the lack of maintainability. The contents of the petition were denied on merits. It was asserted that the learned SDM came to know that a conflict between the parties had occurred, and an FIR no. 152 dated 4th December 2024 was registered at the Police Station Amb. The informant had suffered two simple and one grievous injury. The aggrieved parties approached the learned SDM through their counsel for immediate relief. The matter was fixed on 30th January 2025, at their request. Statements of informant, Kamlesh Kumari, and Suman Kumari were recorded in the presence of Darshan Singh and Parikshit Thakur. A notice under Section 130 of BNSS, was served upon Ajay Thakur to show cause and prevent breach of peace. Learned SDM could have initiated the proceedings based on the credible information received from any source. There is no infirmity in the order passed by the learned SDM. Hence, it was prayed that the present petition be dismissed. 8. A notice under Section 130 of BNSS, was served upon Ajay Thakur to show cause and prevent breach of peace. Learned SDM could have initiated the proceedings based on the credible information received from any source. There is no infirmity in the order passed by the learned SDM. Hence, it was prayed that the present petition be dismissed. 8. A separate reply was filed by the informant, making a preliminary submission regarding the lack of maintainability. It was asserted that the informant made an online complaint on 29th October 2024, and a written complaint to the SHO Police Station Amb on 30th October 2024. A notice under Section 130 of BNSS, was issued by learned SDM against the petitioner and others. The notice was served upon the petitioner requiring him to furnish a surety bond in the sum of Rs.20,000 for a period of one year to prevent any further breach of peace. The informant had specifically named the petitioner and expressed serious apprehension for her life. This was duly supported by Suman Kumari. Ajay Thakur is misusing his position to intimidate and harass the informant. The petitioner and his family members attacked the informant on 29th November 2024 and caused serious injuries to her. An FIR 152/2024 was registered against the family members of the petitioner. The order passed by the learned SDM does not suffer from any infirmity. Therefore, it was prayed that the present petition be dismissed. 9. I have heard Mr. Sanjeev Kumar Suri, learned counsel for the petitioner, Ms Sunaina Chaudhary, learned Deputy Advocate General for the respondents No. 1 to 3, and Mr Karan Kapoor, learned counsel for the respondent No. 4/informant. 10. Mr. Sanjeev Kumar Suri, learned counsel for the petitioner, submitted that the petitioner was not named in the complaint filed by the police. The informant named him, which was not sufficient to summon him. Learned SDM did not pass an order under Section 130 of BNSS, mentioning the number of sureties, the amount of the bond and the period for which the bond was to remain in force. The proceedings initiated against the petitioner are illegal and without jurisdiction. It was a private dispute between the parties, and learned SDM lacked jurisdiction to initiate the proceedings. Hence, he prayed that the present petition be allowed and the order passed by the learned SDM be set aside. 11. Ms. The proceedings initiated against the petitioner are illegal and without jurisdiction. It was a private dispute between the parties, and learned SDM lacked jurisdiction to initiate the proceedings. Hence, he prayed that the present petition be allowed and the order passed by the learned SDM be set aside. 11. Ms. Sunaina Chaudhary, learned Deputy Advocate General for the respondents no. 1 to 3, and Mr. Karan Kapoor, learned counsel for the respondent no. 4, supported the order passed by the learned SDM and submitted that no interference is required with it. 12. I have given considerable thought to the submissions made at the bar and have gone through the records carefully. 13. Section 126(1) of BNSS reads as under: “(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 or bail bond for keeping the peace for such period, not exceeding one year, as the Magistrate thinks fit.” 14. The Section confers jurisdiction upon the learned SDM in case of breach of peace or disturbance of public tranquillity. In the present case, the dispute between the two parties was over the land. It was laid down by the Bombay High Court in Christalin Costa V/S State of Goa 1992 CrLJ 3608 , that the dispute between two private individuals does not lead to a breach of the public peace, but is merely a problem of law and order; hence, it does not fall within the purview of Section 107 of Cr.P.C. (corresponding to Section 152 of BNSS). It was observed:- “[7] In my view, all these submissions of Shri Nadkarni appear to be sound and deserve acceptance. As far as the last grievance is concerned, a bare perusal of section 107 of Cr.P.C., read with section 111, shows that such proceedings are to be instituted only in respect of information received by the Magistrate if he is satisfied that there is any danger or likelihood of somebody committing a breach of the peace and disturbing public tranquillity. As far as the last grievance is concerned, a bare perusal of section 107 of Cr.P.C., read with section 111, shows that such proceedings are to be instituted only in respect of information received by the Magistrate if he is satisfied that there is any danger or likelihood of somebody committing a breach of the peace and disturbing public tranquillity. Obviously, when there are quarrels between two private individuals, it appears that this situation is not contemplated by these legal provisions. Quarrels between individuals do not normally create any problem of public order, and at the most, they may lead to a problem of law and order to be dealt with by the appropriate penal law. Proceedings un- der section 107 always deal with preventive measures to be taken by the Magistrates to pre-empt any possibility of a breach of the peace and disturbing the public tranquillity. In the case of (Jayant D Shah and others v. The State of Maharashtra)2, 1986(1) Crimes 405 Single Judge of this Court has held that the provisions of sections 107 to 110 cannot be used or exercised for satisfying private vendetta of a querulous person and that the exercise of powers by the Magistrate under the aforesaid sections on the basis of incidents involving trivial quarrels without application of mind would amount to gross abuse of the process of law.” 15. This position was reiterated in Perswami Kandswami Devendra vs Senior Inspector of Police 2003 (4) MhLJ 703 , and it was held:- “[6] Domestic quarrels and petty quarrels between neighbouring persons which do not have a long life are not the subject matters of the actions to be taken in view of section 107 of the Code. The energy and time of the public servant concerned should not be wasted on such trifling matters for satisfying personal vendetta or for the purpose of giving lessons to each other. This court is sup- ported by the view taken by the Single Judge Bench of this Court in two cases, i.e., (Smt. Christalin Costa and others v. State of Goa and others) 1, reported in 1993 (1) Bom. C. R. 688: 1993 (1) Bom. L. R. 688 and (Madhudeoraj Shetty v. State of Maharashtra) 2, reported in 1989 Gri. L. J. 1255. 16. C. R. 688: 1993 (1) Bom. L. R. 688 and (Madhudeoraj Shetty v. State of Maharashtra) 2, reported in 1989 Gri. L. J. 1255. 16. A similar view was taken in Sandeep Shivaji Mhatre vs. State of Maharashtra (23.04.2014 - BOMHC): MANU/MH/ 1408/2014, wherein it was observed: “12. It is also pertinent to note that in the present case, the proceedings are initiated under section 107 of the Cr.P.C. on 5.3.2014 solely on the basis of C.R. No. 250 of 2013, which was registered by Byculla Police Station on 19.11.2013 and which is pending trial before the Metropolitan Magistrate, Mazgaon. The said dispute was essentially between two individuals and does not involve any community or the public at large. There is nothing in the Roznama entry or the notice to indicate that the petitioner was a habitual offender or that he was involved in criminal activity or that his conduct during the interregnum period was subversive of the peace and public tranquillity. The Magistrate has not conducted the minimal required preliminary inquiry to arrive at a satisfaction that the alleged incident or the conduct of the petitioner was likely to cause breach of the peace or disturbance of the public tranquillity, but has formed his opinion mechanically, solely on the basis of the solitary FIR and the report forwarded by the Police. It is a settled principle that powers under section 107 of the Cr.P.C. have to be exercised only in cases of a serious nature likely to occasion breach of the peace or disturbance of the public tranquillity and not as a vehicle for private vendetta. Since the foundation of an order is an apprehension or likelihood of a breach of the peace or public tranquillity, such an order could not be justified merely on the basis of a solitary incident of violence between two individuals. 13. In the case of (Vasantkumar Jivrambhai Majithia Vs. State of Maharashtra & anr.), MANU/MH/0913/2005: 2006(1) Bom. C.R. (Cri.), 9 the Division Bench of this Court has approved the view taken by the Single Judge of the Court in the case of [Christalin Costa (Smt.) and ors. Vs. State of Goa & ors.), MANU/MH/0159/1992: 1993(1) Bom. 13. In the case of (Vasantkumar Jivrambhai Majithia Vs. State of Maharashtra & anr.), MANU/MH/0913/2005: 2006(1) Bom. C.R. (Cri.), 9 the Division Bench of this Court has approved the view taken by the Single Judge of the Court in the case of [Christalin Costa (Smt.) and ors. Vs. State of Goa & ors.), MANU/MH/0159/1992: 1993(1) Bom. C.R. 688 (P.B.): 1993 Mh.L.J. 1409 , which is as under: "7.......a bare perusal of section 107 of the Criminal Procedure Code read with section 111 shows that such proceedings are to be instituted only in respect of information received by the Magistrate if he is satisfied that there is any danger or likelihood of somebody committing a breach of the peace and disturbing public tranquillity. Obviously, when there are quarrels between two private individuals, it appears that this situation is not contemplated by these legal provisions. Quarrels between individuals do not normally create any problem of public order, and at the most, they may lead to a problem of law and order to be dealt with by the appropriate penal law. Proceedings under section 107 always deal with preventive measures to be taken by the Magistrates to preempt any possibility of breach of peace and disturbance of public tranquillity. In the case of (Jayant D. Shah and 4 others Vs. State of Maharashtra), 1986(1) CRIMES 305, this Court has held that the provisions of sections 107 to 110 cannot be used or exercised for satisfying private vendetta of a querulous person and the exercise of powers by the Magistrate under the aforesaid sections on the basis of incidents involving trivial quarrels without application of mind would amount to gross abuse of process of law." 17. Delhi High Court also held in Asha Pant v. State, 2008 SCC OnLine Del 367, that the proceedings under Section 107 of CrPC should not be initiated in a private dispute. It was ob- served: “18. The total of the above discussion is that in every case, it would be incumbent upon the SEM to follow the steps envisaged in Section 107 strictly in accordance with the procedure outlined in the provisions of the CrPC set out thereafter. Such steps should be preceded by the formation of an opinion in writing by a Magistrate, which should be discernible when the decision is challenged in the Court. Such steps should be preceded by the formation of an opinion in writing by a Magistrate, which should be discernible when the decision is challenged in the Court. Such formation of the opinion should, normally, be based on some preliminary enquiry that should be made by an SEM to justify the formation of an opinion. Of course, this cannot be straitjacketed since there may be cases where an SEM may form an opinion right away to prevent the breach of peace or public tranquillity. However, that should be the exception and not the rule. For instance, as in the present case, where the dispute is essentially between the neighbours in a property, or between a landlord and tenant residing in the same premises, the notice under Section 107 CrPC should not be issued only upon a perusal of the Kalandara prepared by the police. Such a mechanical exercise without the SEM forming an independent opinion on the basis of some sort of preliminary enquiry would render the exercise of the power vulnerable to being invalidated. 19. This Court had very recently, in Sushma Arora v. State (Order dated 15th February, 2008 in Crl. M.C. 35281 of 2006) held that the decision of this Court in Ram Prakash v. State, 62 (1996) DLT 628 ought to have been followed by the SEM in that case, which was really a dispute between a landlord and tenant. This Court has cautioned the SEMs against using their powers under Section 107 CrPC in such a situation.” (Emphasis supplied) 18. In the present case, the dispute was between two private parties, and the learned SDM erred in taking its cognizance. 19. Learned SDM passed an order that a notice under Section 111 CrPC be initiated against the petitioner. Section 111 of CrPC reads as follows: “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.” 20. In the present case, learned SDM did not specify the substance of the information, the amount of the bond, the number of sureties or the period for which the bond was to remain in force. Therefore, the order did not comply with the requirements of Section 111 of the CrPC. It was laid down in Mohammed Sadiq Abdul Khalil Patel v. V.Y. Choughule, 2002 SCC OnLine Bom 1022: (2003) 4 Mah LJ 825 that where the order does not mention the period or the amount, it is bad. It was observed at page 825; “No doubt it is mentioned that on 21-12-1994, the petitioners were before the said Special Executive Magistrate and he did peruse the report of the complainant against them. The said order also mentions that notice was issued to the petitioners in view of the provisions of section 111 of the Code of Criminal Procedure, 1973 (hereinafter referred to as Code for convenience). What is most important to be seen is that the learned Magistrate in his order has not mentioned the period for which the petitioners were asked to execute the personal bond. The Special Executive Magistrate does not have any power to direct the persons against whom a report has been submitted to him to execute a bond for keeping the peace and maintaining good behaviour for an uncertain period of time. The said Special Executive Magistrate was exercising the power as Executive Magistrate. Therefore, it will have to be presumed that he happens to know provisions of sections 107, 111, 112 and 116 of the Code. Even then, he did not mention the period for which the petitioners were to execute the bond in the initial two lines. He utilised the 3rd line by underlining it so as to show that, thereby, he means that the petitioners are to execute the bond pending the enquiry. After three lines, from the third line, again, there has been a line provided which shows that the petitioners were to be remanded to Magisterial custody for an uncertain period. In this way, the said order will have to be read as it appears and on plain reading of the said order brings one to a very funny situation, an inconsistent situation. Every order has to be consistent with the provisions of law and has to show application of the judicial mind. In this way, the said order will have to be read as it appears and on plain reading of the said order brings one to a very funny situation, an inconsistent situation. Every order has to be consistent with the provisions of law and has to show application of the judicial mind. In the present case, the learned Special Executive Magistrate has not taken care of even scoring off the redundant lines and therefore, in this order, the words “cyclostyled sheet of paper” have been deliberately used.” 21. It was held in Surendra Ramchandra Taori v. State of Maharashtra, 2001 SCC OnLine Bom 571 : (2001) 4 Mah LJ 601 that the SDM has to incorporate all the requirements in the order and the notice cannot be different from the order. It was observed at page 611: 15. The first step in the proceedings is the passing of a preliminary order under section 111 of the Criminal Procedure Code, which is a condition precedent for taking further steps in any proceedings under sections 107 to 110 of the Code of Criminal Procedure. Such an order, with its required contents, must be recorded and indicated even where the Police have brought before the Magistrate a person under arrest as a suspected offender. The first thing is that the Magistrate must do after receipt of the information, referred to in section 110 is to apply his mind to such information, if he is satisfied that there is ground for proceeding under such Chapter to pass an order in writing under the present section and, therefore, it is mandatory on the part bf the Magistrate for passing of a preliminary order stating the substance of the information etc. which will be served as a notice. It does not contemplate a notice different from such an order. If the person charged is present in the Court, the order should be read over to him, and that may amount to notice. If they are not present, a copy of summons must be enclosed with the summons or warrant as the case may be and therefore, it is quite clear that no final step in the proceedings can be made and therefore, without giving an opportunity to such person to show cause by reading over the order to him if he happens to be in the Court when order under section 111 is made. It is only thereafter that the preliminary order under sub-section (3) of section 116 of the Code of Criminal Procedure can be passed and, therefore, one thing is clear that unless and until steps as contemplated under section 111 of the Criminal Procedure Code are taken i.e. an order requiring a person to show cause under such section, which should be 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 no further steps can be taken. 22. It was held by the Allahabad High Court in Manish Yadav v. State of U.P., 2020 SCC OnLine All 2254 that non- mentioning the substance of the information will make the notice bad. It was observed: “13. The notice does not mention any act or omission on the part of the applicant which may have been considered by the Magistrate at the time of issuance of the notice. The material is the foundation of the exercise of power u/S. 107, Cr. P.C., which is clearly lacking in the notice. The notice either should clearly disclose the material indicating the satisfaction of the Magistrate, or the same should be accompanied by the Police report and other material being relied upon by the Magistrate at the time of issuing the notice. In the present case, both are missing and therefore, the impugned notice does not fulfil the prescription of law in this regard and is liable to be set aside.” 23. It was stated in the reply that the petitioner had beaten the informant, and the FIR was registered regarding this matter. This was insufficient to initiate the proceedings. It was laid down by the Kerala High Court in Lovely v. State of Kerala, 2023 SCC OnLine Ker 7567, that preventive proceedings are not meant to punish a person for the crimes committed by him. It was observed: “13. The learned Magistrate ought to have borne in mind that the object of the Section is prevention and not punishment of crimes. It is not intended to punish persons for anything that they have done in the past, but to prevent them from doing in future something that might occasion a breach of the peace. It was observed: “13. The learned Magistrate ought to have borne in mind that the object of the Section is prevention and not punishment of crimes. It is not intended to punish persons for anything that they have done in the past, but to prevent them from doing in future something that might occasion a breach of the peace. The section is designed to enable the Magistrate to take measures with a view to preventing the commission of offences involving a breach of peace or disturbance of public tranquillity. Wide powers have been conferred on the magistrates specified in this Section, and as the matter affects the liberty of the subject who has not been found guilty of an offence, it is essential that the power should be exercised strictly in accordance with the law.” 24. Therefore, it was impermissible to initiate the action based on the registration of the FIR. 25. In the present case, the learned SDM filed an affidavit opposing the petition and justifying his order. It is simply impermissible. It was laid down by the Hon’ble Supreme Court in Mohinder Singh Gill v. Chief Election Commr., (1978) 1 SCC 405 : 1977 SCC OnLine SC 323 that a statutory authority cannot justify its order by furnishing an affidavit. It was observed at page 417: “8. The second equally relevant matter is that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of an affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to court on account of a challenge, get validated by additional grounds later brought out. We may here draw attention to the observations of Bose, J. in Gordhandas Bhanji [Commr. of Police, Bombay v. Gordhandas Bhanji, 1951 SCC 1088: AIR 1952 SC 16 ] : “Public orders, publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in his mind, or what he intended to do. of Police, Bombay v. Gordhandas Bhanji, 1951 SCC 1088: AIR 1952 SC 16 ] : “Public orders, publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in his mind, or what he intended to do. Public orders made by public authorities are meant to have public effect and are intended to affect the acts and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself.” Orders are not like old wine becoming better as they grow older. 26. Therefore, no affidavit could have been filed by the learned SDM. 27. In view of the above, the order passed by the learned SDM summoning the petitioner cannot be sustained and is ordered to be set aside. 28. The observations made hereinbefore shall remain confined to the disposal of the present petition and will have no bearing, whatsoever, on the merits of the case pending before learned SDM. 29. The present petition stands disposed of, and so are the pending miscellaneous applications, if any.