Delhi District Court
Sh. Ashok Kumar vs The State on 18 August, 2023
DLNW010010292023
Presented on : 30-01-2023
Registered on : 01-02-2023
Decided on : 18-08-2023
Duration : 0 years, 6 months,
19 days
IN THE COURT OF
ASJ/SPECIAL.JUDGE(NDPS)
AT NORTH WEST, ROHINI COURTS, DELHI
(Presided Over by Sh. Vikram)
Cr/59/2023
SH. ASHOK KUMAR
S/o Late Girwar Singh,
R/o House No. 67 & 68,
UGF, Pkt. 8, Rohini, Delhi-110086.
.....Petitioner
Vs.
THE STATE
SMT. MEENAKSHI
D/o Sh. Javender Singh
W/o Sh. Ashok Kumar
R/o House No. 153, B Block,
Sector 8, Dwarka,
New Delhi.
.....Respondent
C.R No. 59/2023 Ashok Kumar Vs. The State & Anr. Page 1 of 6
JUDGMENT
(Delivered on 18-08-2023)
1. In Rajender Singh Pathania and others Versus State (NCT of Delhi) and Others CRIMINAL APPEAL NO. 1582 OF 2011(Arising out of SLP(Crl.) No.1773 of 2008) it has been held by Hon'ble Supreme Court that:
17. The objects of Sections 107/131 Cr.PC are of preventive justice and not punitive. Section 151 should only be invoked when there is imminent danger to peace or likelihood of breach of peace under Section 107 Cr.PC. An arrest under Section 151 can be supported when the person to be arrested designs to commit a cognizable offence. If a proceeding under Sections 107/151 appears to be absolutely necessary to deal with the threatened apprehension of breach of peace, it is incumbent upon the authority concerned to take prompt action. The jurisdiction vested in a Magistrate to act under Section 107 is to be exercised in an emergent situation.
18. A mere perusal of Section 151 of the Code of Criminal Procedure makes it clear that the conditions under it which a police officer may arrest a person without an order from a Magistrate and without warrant have been laid down in Section 151. He can do so only if he has come to know of a design of the person concerned to commit any cognizable offence. A further condition for the exercise of such power, which must also be fulfilled, is that the arrest should be made only if it appears to the police officer concerned that the commission of the offence cannot be otherwise prevented. The section, therefore, expressly lays down the requirements for exercise of the power to C.R No. 59/2023 Ashok Kumar Vs. The State & Anr. Page 2 of 6 arrest without an order from a Magistrate and without a warrant. If these conditions are not fulfilled and, a person is arrested under Section 151 CrPC, the arresting authority may be exposed to proceedings under the law for violating the fundamental rights inherent in Articles 21 and 22 of the Constitution. (Vide Ahmed Noormohmed Bhatti v. State of Gujarat AIR 2005 SC 2115,) (See also Joginder Kumar v. State of U.P AIR 1994 SC 1349 and D.K Basu v. State Of W.B. AIR 1997 SC
610).
2. Present revision petition is directed against one such action taken against petitioner in Kalandra vide DD no.5 dated 23.09.2022. As per DD no.5 A presenting officer ASI Sohan Singh Meena and Ct. Jitender, were entrusted with a call vide DD no. 118 A. In response to that call the when police reached at spot i.e. Gali no. 7 Rama Vihar Delhi, police witnessed a crowd gathered. On dispersing the crowd police found one person was getting aggressive and was on a warpath. On inquiry police came to know that the aggressive person is the fighting with lady caller and is her husband and because of his behavior the passerby were getting annoyed. That person was also abusing and telling the lady that he will not keep her in his house and will not let her live. As that person was committing breach of peace police tried to calm him but he did not budge. Therefore the person was apprehended whose name was later disclosed as Ashok Kumar (the Petitioner). The women, the wife of petitioner also gave a written complaint to police. The police after consulting with SHO proceeding against the petitioner u/S C.R No. 59/2023 Ashok Kumar Vs. The State & Anr. Page 3 of 6 107/151 Cr.PC and arrested him, because if not arrested petitioner would have committed some cognizable offence.
3. After arrest the petitioner was taken for medical examination and then brought to police station. On arrival at the police station vide GD no. 5 dated 23.09.2022, the arrival was recorded by ASI Sohan Singh.
4. The petitioner has impugned the proceedings against him on the ground that the action of police was illegal the petitioner was arrested in connivance with the R2 as she wanted, by hook or by crook, to send the petitioner to jail, therefore, she orchestrated the entire case. It is stated that the R2 was not living with petitioner since April 2022 and she had no reason to come to house of petitioner in Rohini, at 11 pm, when she was residing with her parents at Dwarka. It is submitted that because the R2 had connived with the police and SEM she made false complaint and got the petitioner falsely arrested due to which the petitioner had to face illegal custody from 11.30 of 22.09.2022 to 24.09.22, till he was released. It is further submitted that the connivance of SEM and illegality in the proceeding is apparent on the record that the petitioner was sent to JC despite the fact that surety of petitioner was present and it was done so by sending the bond of surety for verification, only because the police officials, SEM and the complainant wanted to send the petitioner to jail to hurt the dignity of petitioner.
C.R No. 59/2023 Ashok Kumar Vs. The State & Anr. Page 4 of 65. As per TCR the petitioner was produced before Ld. SEM on 23.09.2022 itself and proceedings sheet records;
"Resp is produced in P/C. Heard. No sound surety hence send in J/C for 1 day."
6. Hon'ble High Court of Delhi while dealing with section 107/151 Cr.PC in case titled Moinuddin versus State & Ors. 2009 SCC OnLine Del 3406 : (2009) 164 DLT 160 (DB) laid down the following parameters to deal with such cases as under:
(A) The Magistrate should stress upon the recording of statements of the investigating officer/witnesses before initiating any proceedings under Section 107/116/151, Cr.P.C.
(B) The Magistrate should not order furnishing of surety in the absence of statements of IO/witnesses.
(C) The Magistrate should not send the detenu to jail for failure to furnish surety as directed by him, in case statements of IO/witnesses have not been recorded.
(D) The Magistrate should not sign the order in a mechanical manner on a cyclostyled paper but it should be well reasoned and detailed one.
7. These directions were passed by Hon'ble High Court on 27.10.2009 while taking note of Standing order 189/2008 passed by Commissioner of Police, Delhi. The proceedings of Ld. SEM are, however, in complete non compliance of directions passed in Moinuddin (supra). No statement of IO was recorded before initiating proceedings and Ld. SEM illegally C.R No. 59/2023 Ashok Kumar Vs. The State & Anr. Page 5 of 6 stressed on to furnish the bonds. The bond was furnished with copy of RC of surety, yet it was not accepted then and there, but sent for verification and in the meanwhile the petitioner was sent to JC. The order and the proceedings of Ld. SEM are therefore illegal, apparent on the face of record. Hence the entire proceeding arising out of Kalandra vide GD no. 5 dated 23.09.2022 are set aside.
8. Copy of this judgment be sent alongwith TCR.
Digitally
signed by
VIKRAM
VIKRAM Date:
2023.08.18
16:02:22
Date : 18-08-2023 +0530
(Vikram)
ASJ-02/Spl. Judge (NDPS),
North West, Rohini Courts,
Delhi/18.08.2023
Digitally
signed by
VIKRAM
Dictated on : 18.08.2023 VIKRAM Date:
Transcribed on : 18.08.2023 2023.08.18
16:02:31
checked on : 18.08.2023 +0530
Signed on : 18.08.2023
(Vikram)
ASJ-02/Spl. Judge (NDPS),
North West, Rohini Courts,
Delhi/18.08.2023
C.R No. 59/2023 Ashok Kumar Vs. The State & Anr. Page 6 of 6