Delhi District Court
Ms. Farzana vs The State on 29 May, 2015
IN THE COURT OF MS. POONAM CHAUDHRY, SPECIAL
JUDGE07 (CENTRAL), (PC ACT CASES OF ACB, GNCTD), DELHI
Crl. Rev. No. : 07/15
Unique Case ID : 02401R0123132015
1. Ms. Farzana
D/o Sh. Shahabuddin
2. Sh. Nadeem
S/o Sh. Shahabuddin
3. Sh. Shahid
S/o Sh. Shahabuddin
4. Sh. Zakir
S/o Sh. Shahabuddin
5. Ms. Aneesa Begum
W/o Sh. Shahabuddin
All R/o 3358, Bagichi Achchheji,
Bara Hindu Rao,
Delhi110006. ........... Revisionists/Petitioners
Versus
The STATE .......... Respondents
CR No. 07/15 Ms. Farzana & Ors. Vs. The State 1/10
Date of Institution on 05.03.2015
Judgment reserved on 27.05.2015
Judgment delivered on 29.05.2015
JUDGMENT
1. By way of the present Revision, petitioners have assailed the order of Ld. SEM, dt. 3.1.2015 whereby notices were issued to petitioners U/S 107/111 Cr.P.C in case bearing DD No. 34B PS:
Bara Hindu Rao.
2. Briefly stated the facts giving rise to the petition are that Sh. Fateh Mohammad, Sh. Balla, Sh. Mamad @ Chuha, Sh. Imran were raising unauthorized construction in an open space adjoining the property of petitioners thereby closing the passage of air and light to the premises of petitioners in the property bearing no. 3358, Bagichi Achchhe Ji, Bara Hindu Rao, Delhi110006. It is further alleged that the father of the petitioner no. 1 to 4 and husband of the petitioner no. 5 had filed a civil suit in respect of unauthorized encroachment and construction against Sh. Fateh CR No. 07/15 Ms. Farzana & Ors. Vs. The State 2/10 Mohammad and others.
3. It is further alleged that on 6.12.2014 at about 2:19 pm, when the petitioner no. 1 was passing through the gali to deliver clothes stitched by her to her customers, one Mohd. Naseem and Mohd. Fateh on seeing her (petitioner No.1) started passing vulgar remarks and also indulged in vulgar and obscene acts. The petitioner no. 1 complained against these persons to an old lady in her neighbourhood. Thereafter when petitioner no. 1 came out of the house of old lady, the above named persons attacked her. The above named persons also entered the house of petitioner no. 1 and attacked her, behaved indecently with her and also caused injuries to her mother(petitioner no.5). The said persons also threatened petitioner no. 1 asking her to tell her father to withdraw the civil suit. It is further stated that petitioner no. 1 gave a written complaint to the police station Bara Hindu Rao regarding the said incident dt.6.12.15 bearing DD No.50 B but no action was taken on her complaint.
4. It is further alleged that on 7.12.2014 the above named Mohd. CR No. 07/15 Ms. Farzana & Ors. Vs. The State 3/10 Naseem again met the petitioner no. 1 in the gali and told her that he had morphed her nude photographs which he would upload on internet and Whatsapp (mobile application). He also threatened to implicate her (petitioner no.1) and her family members in false cases and abused her. It is also alleged that petitioner no. 1 is unmarried and working for her livelihood by stitching clothes and she has to come out of her house to deliver clothes to her customers but is being harassed by above named persons.
5. It is also stated that above named persons are being protected by the police. It is further stated petitioner no. 1 gave a written complaint to the DCP, North District, Civil Lines, Delhi but no action was taken on the said complaint. However, the police booked the petitioners U/S 107/150 Cr.P.C in a case bearing DD No.34B PS: Bara Hindu Rao and petitioners have received summons/notices from the court of Ld. SEM U/S 107/111 Cr.P.C
6. It is further alleged that the Ld. Trial court erred in passing the impugned order in a mechanical order and did not appreciate that complainants were aggressors and also ignored the fact that a civil CR No. 07/15 Ms. Farzana & Ors. Vs. The State 4/10 suit was pending between the parties. The Ld. Trial Court also ignored the fact that petitioner no. 1 was being harassed by the complainant of the kalandra in question to withdraw the civil suit. It is also alleged that police had not investigated the complaints of petitioner no. 1 to 5 but on the other hand booked the petitioner no. 1 to 5 in the present case.
7. It is further alleged that impugned notice is an abuse of process of law. It is reiterated that impugned notice has been issued in a mechanical manner without any investigation. It is also alleged that impugned notice is causing irreparable injury to the petitioners and is counter blast to the civil suit pending between the parties. It is also alleged that Ld. SEM also ignored the fact that motive of the complainant was to usurp the property of petitioners by pressurizing them to withdraw the civil suit. It is prayed that impugned notice passed by Ld. SEM be set aside. Along with the petition an application has also been moved for stay of proceedings before Ld. SEM.
8. The report was called on the complaint of petitioners. SI CR No. 07/15 Ms. Farzana & Ors. Vs. The State 5/10 Mahender Singh PS: Kamla Market filed status report stating that petitioners and complainant of kalandra 34 B were residing in the same house bearing No. 3358, Bagichi Achehhe Ji, Bara Hindu Rao, Delhi110006. It was further stated that there is dispute between the parties over the construction of the house of complainant and several complaints were made by the parties to the police and MCD. It is further stated that there was tension between the parties over the construction. Both the parties had been booked U/S 107/150 Cr.P.C as there was apprehension of breach of peace.
9. I have heard the Ld. counsel for the parties and perused the record.
10. Section 107 Cr.P.C was enacted to prevent local clashes between the persons. This section is preventive and not punitive, in other words, the Section is not intended for punishment but for the prevention of acts that may amount to breach of peace. The proceedings U/S 107 Cr.P.C which is a preventive measure, is to maintain public tranquility and public peace. Thus as proceedings CR No. 07/15 Ms. Farzana & Ors. Vs. The State 6/10 under the Section are for maintaining public peace and tranquility, prompt and expeditious action is necessary. The information on which proceedings under this Section are started should be to the effect that some person is likely to commit breach of peace or disturb public tranquility. Though the matter of initiating of proceedings U/S 107 Cr.P.C is at the discretion of Magistrate, such discretion should not be exercised mechanically. The Magistrate should receive some information before proceeding under this Section. The satisfaction contemplated in Section 107 is intended to be subjective satisfaction of the Magistrate based on certain material justifying the said satisfaction.
11. There are two distinct set of circumstances in which a Magistrate may take action under the Section, firstly when a person is likely to commit breach of peace or disturb public tranquility by a direct act and secondly when a person may be indirect cause of breach of peace or disturbance of public tranquility by doing a wrongful act.
12. Now, coming to the present case there is dispute between CR No. 07/15 Ms. Farzana & Ors. Vs. The State 7/10 petitioners and complainant, regarding construction. For passing an order under this Section, it is not necessary that each one of the party should be involved in the acts of violence. Proceedings can be drawn up under this section also against persons who are likely to abet the commission of act mentioned in it. It is not necessary for taking action under this Section to show that a person has actually done any wrongful act. It is mere likelihood of doing such act that is necessary. Action can be taken by the Magistrate if he is of the opinion that there are sufficient grounds for proceedings. Thus in each case, the Magistrate has to exercise the discretion with reference to the credibility and sufficiency of the information received by him. The satisfaction contemplated under Section 107 is the subjective satisfaction of Magistrate based on materials justifying the said satisfaction.
13. On receipt of information given by the police, the Magistrate is bound to record his opinion as contemplated by Section 107 Cr.P.C and thereafter he has prepare the notice U/S 111 Cr.P.C which must contain the substance of the information so received. An order U/S 107 Cr.P.C has serious repercussions on the CR No. 07/15 Ms. Farzana & Ors. Vs. The State 8/10 individuals proceeded against, therefore, what Magistrate is required to do after receipt of information is to apply his mind and if satisfied, pass an order in writing. This cannot be reduced to mechanical process such use of cyclostyled proforma with some insertions here and there. Thus Section 107 Cr.P.C imposes an obligation on the Magistrate to record the ground on which he formed his opinion to proceed.
14. Reverting to the present case, the Ld. SEM in Notice U/S 107/111 Cr.P.C stated there was reliable information as per report filed by SHO Bara Hindu Rao and IO SI Mahender Singh that petitioners had inimical terms with one Husanara/complainant regarding repairing of the house of the complainant and the petitioners had threatened the complainant with dire consequences which was likely to effect the breach of peace. Ld. SEM further observed that there was apprehension of breach of peace within the local limits of his jurisdiction. The impugned Notice conforms to the requirement of Section 107 Cr.P.C. I am of the view that admittedly there is a dispute between the parties regarding the repair of the house of CR No. 07/15 Ms. Farzana & Ors. Vs. The State 9/10 complainant. Both the complainant and petitioners have been booked U/S 107/111 Cr.P.C at there is likelihood of breach of peace. The substance of the information has been set out in the Notice U/S 107/111 Cr.P.C and the petitioners have been given notice of what has weighed with the Magistrate to pass the impugned order. For the foregoing reasons, I do not find any illegality in the order of Ld. SEM which calls for interference. The Revision petition is accordingly dismissed. TCR be returned. A copy of the order be sent to the Ld. Trial Court. File be consigned to the recordroom.
Announced in the open court on this 29th May, 2015 (Poonam Chaudhry) Special Judge07 (PC Act Cases of ACB, GNCTD) Central District, THC, Delhi CR No. 07/15 Ms. Farzana & Ors. Vs. The State 10/10