IMPORTANT POINT
The court emphasized the necessity for judicial application of mind in issuing notices under preventive sections to protect personal liberty and avoid abuse of process.

JUDGMENT :

SAURABH LAVANIA, J.

1. Heard Ms. Prathama Singh, learned counsel for the applicants and learned AGA for the State and perused the record.

2. The present application has been filed for the following main reliefs:

“Wherefore, it is most respectfully prayed that this Hon’ble Court may kindly be pleased to summon the record from opposite party no. 2 and quash the impugned order/notice dated 27.07.2024 passed by opposite party no. 2 viz. Sub Divisional Magistrate Sidhauli, District Sitapur as Annexure no. 1 to this petition.

It is further prayed that till disposal of instant petition, further proceeding pending before learned Sub Divisional Magistrate Sidhauli District Sitapur be stayed in the interest of justice.”

3. By means of the present application, a notice dated 27.07.2024 issued under Section 130 Bhartiya Nagrik Suraksha Sanhita, 2023 (in short “BNSS”) by Sub Divisional Magistrate, Sidhauli, Sitapur.

4. It is stated that on account of apprehension that the applicants may cause breach of peace, a report dated 15.07.2024 was submitted by the S.H.O. Police Station-Sidhauli, District-Sitapur in the light of provisions indicated under Section 126/135 of BNSS.

5. Learned counsel for the applicants submitted that the impugned notice dated 27.07.2024 is liable to be set aside because the same has been issued without application of mind as the concerned Magistrate has not recorded his opinion to the effect that their exists sufficient ground to take action under the provisions of Section 130 of BNSS and further that the same is a printed proforma.

6. She further submitted that a printed format cannot be a satisfaction which is required under Section 130 of BNSS while issuing notice under Section 126/135 of BNSS.

7. She has placed reliance upon the judgment of this Court in the Case of Siya Nand Tyagi v. State of Uttar Pradesh 1994 Cri. L.J. 1298 and also the judgment of the Delhi High Court in the case of Tavindar Kumar and another v. State, 1990 Cri. L.J. 40.

8. This Court in Siya Nand Tyagi v. State of Uttar Pradesh (supra) has clearly held thus:

“3. It is unfortunate that the requirement of Section 107 of the Code that the Executive Magistrate receiving information should be of the opinion that there are sufficient grounds for proceedings under the said section have become a dead letter and are always followed in its breach. It should be borne in mind that the proceedings Under Section 107 / 116 of the Code some times cause irreparable loss and unnecessary harassment to the public who run to the Court at the costs of their own vocations of life. Unless it is absolutely necessary proceedings Under Section 107/116, Cr. P.C. should not be resorted to experience tells that proceedings like the one under Section 107/116 of the Code are conducted in a most lethargic and lackadaisical manner by the learned Executive Magistrate causing harassment to public beyond measure.

4. 107 is aimed at a person who causes reasonable apprehension of conduct likely to lead to apprehension of breach of peace or a disturbance of public tranquillity. It is a preventive measure. Proceedings under Section 107/116 should not be transformed into persecution of innocent persons at the sweet will of the police or other persons acting mala fide.

5. In the case of Mohan Lal v. State of Uttar Pradesh 1977 All Cri C 333 this Court observed:

“There are a series of decisions in which it has been held that the provisions contained in Section 111 of the Code are mandatory and that the non-compliance thereof vitiated the entire proceedings.”

6. 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 indicate 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