Delhi District Court
Additional Sessions Judge (North) : ... vs State on 30 March, 2011
1
IN THE COURT OF SMT. BIMLA KUMARI
ADDITIONAL SESSIONS JUDGE (NORTH) : DELHI
Criminal Revision No. 44/10
Case I.D No. 02401R0517802010
1 Sh. Mohd. Aziz alias Abdul Aziz
S/o Sh. Abdul Rashid
R/o A-920, Jahangirpuri,
Delhi-110033
2 Sh. Tehsin
S/oSh. Mohd. Yasin
3 Sh. Tauseef
S/o Sh. Mohd. Yasin
4 Smt. Farida
W/o Sh. Mohd. Yasin
5 Ms. Faraha [Kakkan]
D/o Sh. Mohd. Yasin
6Ms. Fatoon
D/o Sh. Mohd. Yasin
All residents of
6056, Gali Haiderwali
Qasabpura, Sadar Bazar, Delhi ...REVISIONISTS
Criminal Revision No. 44/10 Page 1/10
2
V e r s u s
1 State
2 Sh. Mohd. Kamil
S/o Sh. Mohd. Jameel
3 Sh. Mohd. Aqil
S/o Sh. Mohd. Jameel
4 Sh. Shakeel
S/o Sh. Mohd. Jameel
5 Sh. Kafeel
S/o Sh. Mohd. Jameel
6 Sh. Mohd. Iqbal
S/o Sh. Mirazuddin
7 Smt. Ashi
W/o Sh. Aquil
8 Smt. Shabbo
W/o Sh. Mohd. Kamil
All R/o 6056, Gali Haiderwali,
Qasabpura, Sadar Bazar, Delhi ...RESPONDENTS
Date of institution: 15.11.10
Date of reserving for order: 18.03.11
Date of order: 30.03.11
Criminal Revision No. 44/10 Page 2/10
3
ORDER
By the present order, I shall dispose of the revision filed by the revisionists U/S 397 CrPC against the impugned order of Ld. Trial Court dated 22.06.10. Vide the said order, Ld. Special Executive Magistrate issued notices U/S 107/111 CrPC to the revisionists asking them to show cause as to why they should not be ordered to execute a personal bond and surety bond in the sum of Rs. 5000/- each for keeping peace for a period of one year.
2 The case of revisionists is that vide DD No. 66B dated 05.05.10, the police of P.S Sadar Bazar prepared a Kalandra U/S 107/150 CrPC against revisionists and filed the same in the court of Sh. Raghubir Prasad, Ld. Special Executive Magistrate P.S. Sarai Rohilla; that the police of P.S. Sadar Bazar is hand in gloves with respondents No. 2 to 8 and had registered false Kalandara against the revisionists with the allegations that revisionists abused and threatened the respondents and thereby caused breach of peace; that revisionists are law abiding and peace loving citizens; that respondents No. 2 to 8 are maintaining strained and enimical relations with the revisionists; that respondents No. 2 to 5 are real brothers and are nephews of revisionist No. 1; that respondent No. 6 is the brother-in-law of revisionist No. 1; that earlier a Kalandra U/S 107/151 CrPC was registered in P.S. Sarai Rohilla and was listed before Ld. Special Criminal Revision No. 44/10 Page 3/10 4 Executive Magistrate on 29.12.08, where revisionist No. 1 as well as respondents No. 2, 3 and 6 with others appeared; that after attending that Kalandara, the sisters of revisionist No.1 [revisionists No. 4 and 6] took him to their ancestral property No. 6056, Gali Haiderwali, Qasabpura, Sadar Bazar; that respondent No. 2, 3 and 6 forcibly entered the room of that house with knives and iron rods and threatened revisionists No. 1, 4 and 6; that they started beating revisionist No. 1, due to which he [revisionist No. 1] had fallen and became unconscious; that revisionists No. 4 and 6 tried to save revisionist No. 1 and raised hue and cry for help; that thereafter, respondents No. 2, 3 and 6 left away, giving threats, to eliminate the revisionist No. 1 and his family members; that revisionist No. 1 was taken to Hindu Rao Hospital, where he was treated; that police of P.S. Sadar Bazar assured revisionist No. 1 to register a case of attempt to murder and causing grievous hurt, against respondents but police failed to take any action and therefore, revisionists filed a complaint case U/S 307 /326/341/452/506/120B/34 IPC, which is pending in the court of Ld. Magistrate; that in order to avoid any legal action in the said complaint, respondents No. 2 to 8 hatched a conspiracy with the police and got registered a false and fabricated FIR No. 60/10 on 06.05.10 U/S 323/341/34 IPC against revisionists No. 1 to 3 at P.S. Bara Hindu Rao; that police of P.S. Sadar Bazar at the instance and collusion with respondents No. 2 to 8 also got registered a false and Criminal Revision No. 44/10 Page 4/10 5 fabricated Kalandara against the revisionists wherein Ld. Special Executive Magistrate issued notices U/S107/151 CrPC to the revisionists.
3 The grounds taken in the revision are that the impugned order passed by Ld. Special Executive Magistrate is based upon conjectures and surmises and same is against facts and law; that Ld. Special Executive Magistrate failed to appreciate that the FIR No. 60/10 P.S. Bara Hindu Rao was already registered against revisionists at the instance of respondents for the incident dated 05.05.10 and therefore, the Kalandara dated 05.05.10 is not legally sustainable; that Ld. Special Executive Magistrate did not apply the judicial mind, while issuing notices to the revisionists in that Kalandara; that there was no breach of peace committed by the revisionists and notices should not have been issued to the revisionists by Ld. Special Executive Magistrate; that Ld. Special Executive Magistrate failed to appreciate that the complaint was made wrongly and malafidely by respondents No. 2 to 8 to the police of P.S. Sadar Bazar and no enquiry or investigation was made into that false complaint; that Ld. Special Executive Magistrate failed to appreciate and take into consideration the fact that there was noting on record to prove that the revisionists have ever breached the peace and public tranquility in the area and made any attempt to cause harm to respondents No. 2 to 8; that Ld. Special Executive Magistrate committed gross error in issuing Criminal Revision No. 44/10 Page 5/10 6 impugned notices in the mechanical and routine manner. 4 I have heard arguments from ld. counsel for revisionists, Ld. Addl. PP for State and ld. counsel for respondents No. 2 to 8. Ld. counsel for revisionists has submitted that there was no apprehension of breach of peace and public tranquility on 05.05.10. It was a quarrel between two parties. Matter pertaining to FIR No. 60/10 was already pending before Ld. MM, and therefore, proceedings before Ld. Special Executive Magistrate are liable to be quashed.
5 On the other hand, ld. counsel for respondents has submitted that FIR No. 60/10 had been lodged by respondent No. 6 only against revisionists No. 1 to 3, while the present Kalandara is against revisionists No. 1 to 6. He has further submitted that incident pertaining to FIR No. 60/10 and incident in respect of present Kalandra are different. The FIR No. 60/10 was already lodged and the Kalandra had been made thereafter.
6 I have perused the revision file as well as the trial court record.
7 In Satya Devi and Ors. V. State and Ors, 2008 [4] JCC 2342, the Hon'ble High Court of Delhi has quashed the Kalandras and notices U/S 107/150 CrPC. In that case, the dispute was between the landlord and tenant. The Hon'ble Delhi High Court has observed:
Criminal Revision No. 44/10 Page 6/10 7"In such like matters, the SEM should have exercised his power under Section 107 of the Code in a guarded manner. Notice issued under Section 111 of the Code is on a cyclostyled proforma and only the relevant information like name of the person to whom the notice has been issued, with his address and the name of the complainant has been filled in hand in the blanks left in the proforma notice. There is nothing in the impugned notice issued by the SEM to indicate that he had formed an opinion as required under Section 107 of the Code that there was apprehension of breach of peace. He did not hold even the minimal enquiry that was required on the facts and circumstances of the case. Also, the SEM did not issue any notice upon the petitioners as required under this section. Instead he proceeded by giving a notice under Section 111 of the Code without making an order in writing setting forth substance of the information received and the amount of bond to be executed in terms of which it is to be in force and the number of class of sureties if any required. Notice has been issued in a mechanical manner in utter disregard to the provisions of law. The notice issued under Section 111 of the Code lacks all material particulars".
8 In Asha Pant V. State and Ors. 2008 [2] JCC 984 also, the Hon'ble Delhi High Court quashed the notices issued U/S 107/111 CrPC issued by Special Executive Magistrate in Kalandara. It was held by Hon'ble Delhi High Court:
"In every case, it would be incumbent upon the SEM to follow the steps envisaged in section 107 strictly in Criminal Revision No. 44/10 Page 7/10 8 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 discernable 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 rightaway to prevent the breach of peace or public tranquility. 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 a preliminary enquiry would render the exercise of the power vulnerable to being invalidated".
9 In Aarti Singh V. State and Ors. 2000 [2] JCC [Delhi] 347, Hon'ble Delhi High Court has quashed the proceedings U/S 107 CrPC. In that case the dispute between the parties was in respect of property No. 110 Jor Bagh, Delhi. The respondent Ajay Narain had filed a civil suit against the petitioner Aarti Singh in respect of that property. The hon'ble High Court of Delhi held that, the members of the public were not affected by the acts, Criminal Revision No. 44/10 Page 8/10 9 action or conduct of the parties.
It was further held by Hon'ble Delhi High Court :
"The underlying object of the Section 107 CrPC is preventive and not penal. The sole object of initiating proceedings under Section 107 of the Code is to maintain public peace and tranquility and cannot be used as a handle in case of a private dispute between individuals, where there is no material of disturbance to public tranquility or public peace. In the facts and circumstances of the case, there was absolutely no justification for initiating proceedings under Section 107 of the Code initiated against the petitioners. Consequently, the proceedings under Section 107 of the Code initiated against the petitioners are liable to be quashed".
10 In the present case, after perusal of Trial Court Record, it becomes crystal clear that the dispute between the revisionists and respondents was in respect of property No. 6056, Gali Haiderwali, Qasabpura, Sadar Bazar and SHO, Sadar Bazar. On the basis of DD No. 66B dated 05.05.10 police filed two Kalandaras before Ld. Special Executive Magistrate U/S 107/150 CrPC. One Kalandara was against the revisionists and the second Kalandara was against the respondents. 11 A perusal of notices issued to the revisionists shows that they have been issued on the basis of report only of SHO,Sadar Bazar. The same do not even make mention of statement of SI Sevak Ram recorded on 22.06.10. Trial Court Record further shows that the Criminal Revision No. 44/10 Page 9/10 10 notices U/S 107/111 CrPC have been issued by Ld. Special Executive Magistrate on cyclostyled proformas and the relevant information, received from SHO, has been filled in hand in the blanks, left in the cyclostyled proforma. I am of the considered view that the judgments of Hon'ble Delhi High Court discussed above, are squarely applicable to the facts of the present case. Since, the dispute between revisionists and respondents was in respect of property No. 6056, Gali Haiderwali, Qasabpura, Sadar Bazar, I am of the considered view that there was no apprehension of breach of peace and disturbance of public tranquility by the acts of revisionists. Therefore, the impugned order dated 22.06.10 is not sustainable in the eyes of law and the same is hereby set aside.
12 With these observations, the revision filed by the revisionists stands disposed of. Trial court record alongwith copy of this order be sent back. Revision file be consigned to Record Room.
Announced in the open court
on 30.03.11 (Smt. Bimla Kumari)
ASJ(North)/Tis Hazari,Delhi.
Criminal Revision No. 44/10 Page 10/10