Delhi District Court
Madan Singh vs State (Nct Of Delhi) on 3 November, 2022
IN THE COURT OF SPECIAL JUDGE (NDPS), NORTH
DISTRICT, ROHINI, DELHI
Crl. Revision no.83/2022 (DLNTO1-002769-2022)
1. Madan Singh
S/o late Sh. Bhoop Singh
R/o C-288, Prashant Vihar
New Delhi.
2. Nitin Soam
S/o Sh. Madan Singh
R/o C-288, Prashant Vihar
New Delhi. .....Revisionist/Petitioner
V.
1. State (NCT of Delhi)
2. The Station House Officer (SHO)
Police Station Prashant Vihar
Delhi.
3. The Special Executive Magistrate (SEM)
Rohini District, Delhi .... Respondents.
Date of Institution : 06.04.2022
Date of Reserving the Order : 18.10.2022.
Order Pronounced on : 03.11.2022
ORDER
1. This is a Revision Petition preferred by the Petitioners/Revisionists herein against the impugned order dated 04.03.2022 whereby the Ld. Special Executive Magistrate (SEM), Rohini District, has warned the petitioners herein to refrain from any such activity which may disturb peace and tranquility in the Page 1/9 area in Kalandra No. 89AB, DD no. 82 dated 31.08.2021 PS Prashant Vihar under Section 107 read with Section 150 Cr.PC.
2. The facts as pleaded in brief are that petitioner no. 1 is the senior citizen aged about 64 years and retired from Govt services and petitioner no.2 is a practicing lawyer. It is further submitted that mother in-law of petitioner no.1 and grandmother of petitioner no.2 started constructing their respective portions in the year,2017 at their residential property No. C-288, Prashant Vihar, New Delhi when one of their neighourer namely Ashok Kumar R/o C-287 Prashant Vihar, New Delhi started creating nuisance for her and family members and used to pick up quarrels with construction workers. The said Ashok Kumar started demanding Rs.15 lacs or he would indulge in filing complaints before the different authorities qua the construction of the house Later on, the petitioners came to know that the said Ashok Kumar has made various complaints with different departments. The said Ashok Kumar demanded a sum of Rs.15 lacs for carrying out the construction. Accordingly, petitioner no.1 gave one complaint dated 21.04.2018 in writing to SHO P.S Prashant Vihar.
2.1 It is further submitted that complainant Ashok Kumar in connivance with police officials got a Kalandra under Section 107/150 Cr.P.C bearing No. 67B having DD No. 30A dated 26.07.2020 registered. The said Kalandra is based on false and frivolous allegations. The Ld SEM issue notice dated 07.08.2020 under Section 107/111 Cr.P.C to the petitioners for the offence punishable under Section 107/150 Cr.P.C inquiring them to appear Page 2/9 in person and why they should not be ordered to execute a personal bond in the sum of Rs.10,000/- with one surety for keeping peace during the period of conducting inquiry. The petitioners appeared before the Ld. SEM and also preferred a criminal revision which was allowed vide order dated 02.03.2021. Again, the petitioners received notice dated 08.06.2021 under Section 107/111 Cr.PC and the petitioners herein entered their appearance before the Ld. SEM and submitted a detail reply to the said notice. Accordingly, complainant Ashok Kumar was issued notice for appearance on 09.08.2021. However later on Ld. SEM had passed a final order dated 09.8.2021 observing that the dispute between the petitioners herein and the complainant Ashok Kumar was of civil nature and dropped criminal proceedings initiated qua petitioners being time barred . But in present case in furtherance of Kalandra No. 89AB , DD No. 82 dated 31.08.2021 , the final order has been passed against them and they have directed to refrain from any such activity as alleged in it wich may disturb the peace and tanquility in the area.
3. The petitioners/revisionist herein being aggrieved herein have challenged the impugned order dated 04.03.2022 only qua the warning issued against them on the following grounds:
(I) The impugned order passed by the Ld.
SEM without appreciating the law and facts
involved in the case.
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(II) The Ld. SEM did not apply judicial mind
while passing the impugned order, thereby
warning the petitioners herein from refraining from any such activity which may disturb the peace and tranquility in the area.
(III) Ld. SEM has passed the impugned order without application of mind and it appears that Ld. SEM was predetermined to pass such impugned order.
(IV) Ld. SEM was wrong in passing the Final order dated 04.03.2022 and based the same on the testimony of respondent no.2. As per the settled principles of criminal jurisprudence, any person arraigned as an accused has absolute right to contest the arraignment, cross-examine all the prosecution witnesses and present his defence. The cross examination has been ignored .
(V) Ld. SEM did not consider the detail written submissions by the petitioners whereas he was under the obligation to adjudicate upon the same and pass a reasoned order.
Page 4/9(VI) The impugned order does not contain any reference to detail reply filed by the petitioners in response to the report filed by the SHO with supporting documents and hence, denied the petitioners of their right of being acquitted.
4. The Ld. Counsel for the petitioners, in support of the above- said grounds of revision, further argued that the impugned order is illegal, irregular and is against the facts and material on record which has resulted in miscarriage of law. It is self contradictory order as on one hand it has been held that matter is civil in nature and despite that the later part of the impugned order issuing warning and restraint order is against the settled law on the issue of preventive action under Code of Criminal Procedure, 1973.
5. Per contra, Ld. Addl PP for Respondents has argued that there is no legal infirmity in the impugned order which calls for any interference.
6. I have heard Ld. Counsels for the parties and have also considered their rival contentions as well as the material placed on record.
7. The proceedings before the Ld. SEM were initiated consequent to the filing of the Kalandra under Section 107/150 Cr.P.C by SHO PS Prashant Vihar. The brief allegations were that the complaints were received vide DD No. 44 A dated 17.08.2021 Page 5/9 which were lodged by one complainant namely Ashok Kumar against petitioners herein. They both are the neighborers . During local inquiry by the police it was found that they are having dispute since long due to some unauthorized construction raised in their house and action taken by the same by MC. It was further found in the inquiry that the complainant is a senior citizen and the respondent no.2 (petitioner no.2 herein) is repeatedly putting pressure upon him as well as trying to intimidate him on different occasions. Even the previously, the proceedings under Section 107/150 Cr.P.C was initiated against them. But still, they continued to create disturbance and there is possibility of they committing any wrongful act that may cause breach of peace or disturb public tranquility. Hence the kalandra was forwarded to Ld SEM .
8. The proceedings were accordingly initiated by the Ld. SEM and the initial order dated 14.09.2021 was passed by issuing notice under Section 107/111 Cr.P.C. The trial court reflects that, thereafter, no proceedings as envisaged under Section 111 Cr.P.C was carried out and the matter was proceeded by conducting inquiry in terms of Section 116 Cr.P.C. After conclusion of the inquiry the impugned order has been passed.
9. The grievance raised by the petitioner herein in the said impugned order is that the same is illegal, irregular being against the facts and material on record. Before looking into the merits of the contentions on the part of the petitioners herein, the reasoning part Page 6/9 of the impugned order is reproduced hereunder for the sake of convenience:
"Now, with same grievances one more kalandra under Section 107/150 Cr.P.C vide DD No. 82 Dated 31.08.2021 against the respondents filed in the SEM Court by SHO/Prashant Vihar as PW (Ashok Kumar) filed complaint against the respondents by one after the other. PW (Ashok Kumar) submits his written statement and the same was cross-examined by respondent (Nitin Soam). This is a civil nature case. PW (Ashok Kumar) is directed file a complaint against the respondents by approaching civil authorities like MCT etc. PW (Ashok) still have apprehension of breach of peace from both the respondents. PW (Ashok) is not present. SHO/Prashant Vihar is present and examined. SHO/Prashant Vihar also states that both the respondents are habitual in showing aggressive posture on the witness (Ashok Kumar).
Now, keeping in view these circumstances, this court warns both the respondents (Madan Singh & Nitin Soam) to refrain from any such activity which may disturb the peace and tranquility in the area."
9.1 The last part of the said is only under challenge and petitioners being aggrieved about the directions passed .As far as the finding qua the dispute being civil in nature, there is no dispute as the petitioners themselves have admitted that they are having disputes with each other due to some construction raised.
10. It is apparent from the record that the said proceedings initiated under Section 107/150 Cr.P.C wherein the apprehension was raised that due to repeated acts on the part of petitioners herein, the likelihood of breach of peace or commission of offence against the complainant Ashok Kumar. On the said part of the allegations, an inquiry was conducted and after conclusion of inquiry, it is apparent that Ld. SEM came to the conclusion after examining Page 7/9 the Written Statement as well as cross-examination of complainant Ashok Kumar that it is only a civil nature case. Thus, the moment the said finding was given, the jurisdiction of Ld. SEM for further passing any order under Section 107/150 Cr.P.C was lost and the said finding itself reflects that the apprehension expressed by the SHO concerned of repeated acts on the part of the respondents (petitioners herein) likely to commit breach of peace and tranquility in the area remained unproved. But, instead of disposing of the said Kalandra, Ld. SEM further went on to pass the directions against the petitioners refraining them from any activity in future which breach of peace and tranquility in the area. Thus, it is apparent that two contradictory findings have been given in the impugned order which is admittedly against the scope and power as envisaged under Chapter VIII of Code of Criminal Procedure. The jurisdiction as envisaged under Section 107 Cr.P.C has to be exercised in terms of procedure as envisaged under the law and the scope of final order has to be there as provided under Section 117 Cr.P.C. The Section 117 of Cr.P.C is reproduced hereunder:
"117. Order to give security- If, upon such inquiry, it is proved that it is necessary for keeping the peace or maintaining good behaviour, as the case may be, that the person in respect of whom the inquiry is made should execute a bond, with or without sureties, the Magistrate shall make an order accordingly:
Provided that -
(a) no person shall be ordered to give security of a nature different from or of an amount largere than, or for a period longer than, that specified in the order made under Section 111;
(b) the amount of every bond shall be fixed with due regard to the circumstances of the case and shall not excessive;Page 8/9
(c) when the person in respect of whom the inquiry is made is a minor, the bond shall be executed only by his sureties."
11. So, the statute envisages that in case a finding is arrived at that for keeping peace or maintaining good behaviour after the conclusion of the inquiry, the Magistrate can order the said person concern to execute the bond with or without sureties in terms of earlier order under Section 111 Cr.P.C In the present case, no such order under Section 111 Cr.P.C was passed and the in the final order too, no such order of furnishing bond for keeping peace or maintaining good behaviour has been ordered against the petitioners herein. Therefore, the directions given in the later part of the impugned order dated 04.03.2022 is beyond the scope of power envisaged under Section 117 Cr.P.C.
12. In the light of above-discussed reasons and observations, I am of the considered opinion that the last part of impugned order is illegal and is against the settled law which needs to be set aside. Therefore, the revision petition filed by the petitioners/revisionists is allowed. Impugned order dated 04.03.2022 hereby set aside qua the aspect of directions issued in the last para of it . There is no order as to cost.
TCR be sent back with a copy of this order.
Revision file be consigned to Record Room.
Announced in the Court (GAGANDEEP SINGH)
on 03.11.2022. Addl. Sessions Judge/
Spl. Judge (NDPS), North
District, Rohini Courts, Delhi.
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