1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO.1377 OF 2009 Vikas Babulal Shrimal .. Petitioner Versus State of Maharashtra & Ors. .. Respondents Mr.R.M.Sanghavi i/by Sanghavi & Associates of the petitioner. Mr.Rajesh More, A.P.P for the State. CORAM: A.S.OKA, J. DATE : 22nd June 2009. P.C.: . Heard learned counsel appearing for the petitioner and learned A.P.P for the State. Considering the nature of controversy involved, Writ Petition is taken up for final disposal at admission stage. 2. The challenge in this petition is to initiation of proceedings under Chapter VIII of Code of Criminal Procedure, 1973 (hereinafter referred to as the said Code). On 08th May 2009, a notice purporting to a notice under section 111 of the said Code was issued to the petitioner by the 5th respondent (learned Special Executive Magistrate) calling upon the petitioner to show cause as to why the petitioner 2 should not be called upon to furnish a surety of Rs. 2,000/-. 3. The learned A.P.P has produced for perusal of this Court the file of the proceedings initiated against the petitioner. Perusal of the file shows that on 08th May 2009, a proposal was submitted by Sub- Inspector of Police of Swargate Police Station to the 5th respondent for initiating proceedings against the petitioner. The said proposal was placed before the 5th respondent. The roznama of the proceeding records that the petitioner was produced before the 5th respondent on 08th May 2009. The roznama records that the 5th respondent was satisfied that it was necessary to initiate proceedings under Chapter VIII against the petitioner. The roznama further records that the petitioner was explained charge in the police report and he was served with notice under section 111. It is also recorded that the petitioner stated that he had no grievance against the police but he was desirous of leading evidence as he was not admitting the charge. 4. The learned A.P.P submitted that on the report submitted by the Sub-Inspector of Police of Swargate Police Station, Pune there is a specific order passed 3 by the 5th respondent under section 111 of the said Code. The English translation of the said so called order reads as The opponent is produced in person. As I am satisfied on the basis of the police report and papers that inquiry is required to be held, notice be served to the petitioner under section 111 . 5. Section 111 of the said Code mandates that when Magistrate acting under section 107, 108, 109 or section 110 deems it necessary to direct any person to show cause under the said sections, he shall make an order in writing setting forth substance of the information received, the amount of bond to be executed, the term for which it has to be in force and the number, character and class of sureties, if any, required. On plain reading of section 111, passing an order as required by section 111 of the said Code is a condition precedent for initiating proceedings and condition precedent for issuing a summons or warrant. Law requires that a copy of such order has to be supplied to the person concerned alongwith the summons or warrant. On plain reading of section 111, an order under section 111 is a condition precedent for initiating proceedings. Initiating proceedings under Chapter VIII is a 4 serious matter as the orders passed in the proceedings have drastic consequences. The orders passed may ultimately affect the liberty of an individual. Therefore, section 111 has been held to be mandatory. 6. In the present case, the alleged order passed by the the 5th respondent merely records his alleged satisfaction that it was necessary to initiate proceedings. The satisfaction has been recorded only in one line. Hence, the said order can by no stretch of imagination be termed as an order under section 111 of the said Code. In absence of a legal and valid order under section 111 of the said Code, the initiation of proceedings under Chapter VIII is vitiated and only on this ground the petition must succeed. 7. Hence, I pass the following order: : O R D E R : (a) The notice dated 08th May 2009 and proceedings initiated on the basis of the said notice are quashed and set aside. (b) Petition is allowed in above terms. (A.S.Oka, J)