Delhi District Court
Sanjay Kumar vs State (Govt Of Nct Of Delhi) on 13 August, 2014
IN THE COURT OF MANOJ JAIN: ASJ/SPECIAL JUDGE (PC ACT) (CBI)
SOUTH DISTRICT: SAKET DISTRICT COURTS
NEW DELHI
Criminal Appeal No. 10/2014
Unique ID No. 02406R0197592014
Sanjay Kumar,
Son of Shri Prem Dass,
Resident of 16/120, Saheed Camp,
Dakshin Puri, New Delhi.
....................Appellant
Versus
1 State (Govt of NCT of Delhi) .............Respondent No. 1
2 Smt Tohfa,
Wife of Shri Jitender,
Resident of 16/120, Saheed Camp,
Dakshin Puri, New Delhi. ..............Respondent No. 2
Date of institution of Appeal : 28.07.2014
Date of Allocation : 30.07.2014
Date of conclusion of arguments : 13.08.2014
Date of judgment : 13.08.2014
Particulars related to impugned order
DD No. : 4B dated 13.10.2013
PS : Ambedkar Nagar
Under Sections : 107/117 Cr.P.C.
Date of impugned order : 03.04.2014
Passed by : Sh. Ashok Kumar,
Ld. SEM, South-East District,
New Delhi.
Memo of Appearance
Sh. Nikhil Yadav, learned counsel for appellant.
Sh. Inder Kumar, learned Addl. P.P. for State/respondent no. 1.
Criminal Appeal No. 10/2014 Sanjay Kumar Vs. State & Anr. 1 of 6
JUDGMENT
1 Appellant has taken exception to order dated 03.04.2014 whereby he has been directed to furnish personal bond u/s 117 Cr.P.C. in a sum of Rs. 10,000/- with one surety in the like amount for keeping peace for a period of one year.
2 Briefly stated, as per averments appearing in kalandra, DD No. 47A was recorded at PS Ambedkar Nagar regarding a quarrel at 16/120, Saheed Camp, Dakshin Puri, Delhi. HC Ram Niwas was deputed to go to the spot. He reached at the spot along with Ct. Pitambar where he saw a crowd and also learnt that Sanjay (appellant herein) was abusing Tohfa (wife of his younger brother). Since Sanjay was not relenting and there was chance of his committing any cognizable offence, he was apprehended on the night intervening 12th & 13th October 2013. He was got medically examined and then produced before the court of Ld. SEM on 13.10.2013.
3 On 01.11.2013 he was served with notice u/s 107/111 Cr.P.C.
4 Complainant Tohfa and IO-HC Ram Niwas were examined and Ld. SEM vide impugned order dated 03.04.2014 directed appellant to furnish bond u/s 117 Cr.P.C.
5 According to Sh. Yadav, Ld. SEM has not appreciated the facts and without considering the stance of appellant, ordered him to furnish bond. It has also been argued that there is nothing on record which may show that any such incident had taken place as no independent witness has either been cited or examined. He has also contended that wife of appellant had made a complaint against Tohfa and her other relatives and on the basis of such report, same police station i.e. police station Ambedkar Nagar had registered Criminal Appeal No. 10/2014 Sanjay Kumar Vs. State & Anr. 2 of 6 FIR No. 441/2013 u/s 498A/406/34 IPC on 16.09.2013 and Ld. SEM did not consider the aforesaid crucial aspect at all and the present kalandra has been prepared in order to pressurize appellant and his wife not to pursue the aforesaid FIR.
6 Ld. Addl. P.P. for State/respondent no. 1 has refuted the aforesaid contentions and has justified the conclusion and findings given by Ld. SEM. It has been claimed that material on record clearly indicates that there was every apprehension of breach of peace and, therefore, it was very obligatory and incumbent for the Executive Magistrate to have passed the impugned order directing appellant to keep peace or to maintain good behaviour.
7 Trial court record has been summoned. I have carefully gone through the same.
8 Section 107 Cr.P.C. comes into play when any Executive Magistrate receives information that any person is likely to commit breach of peace or disturb the public tranquility or to do any wrongful act that may probably occasion any such breach or disturbance. Executive Magistrate has to form an opinion that there are sufficient grounds for proceeding u/s 107 Cr.P.C. and only thereafter any such person is required to show cause as to why he should not be ordered to execute a bond in this regard. As per Section 116 Cr.P.C., any such Executive Magistrate is required to conduct an inquiry and such inquiry, as nearly as may be practicable, has to be in the manner prescribed for trial of summons cases.
9 In the present case, inquiry seems to be one sided in the sense that version of appellant has not been considered at all. Trial court record would clearly indicate that on 22.11.2013 itself, appellant had furnished Criminal Appeal No. 10/2014 Sanjay Kumar Vs. State & Anr. 3 of 6 information in writing submitting his version. He also categorically intimated therein that FIR No. 441/2013 had also been registered against Tohfa and her other relatives. There is no discussion whatsoever with respect to such stand of appellant.
10 According to appellant, his wife Hansho had already filed a report with the police on 16.09.2013. According to her, her parents-in-law, Tohfa and her husband used to taunt her for dowry and used to quarrel with her. So much so, she even attempted to commit suicide by consuming phenyl after being fade up with their such acts.
11 I cannot be oblivious of the fact that both the sides are residing in the same house i.e. H. No. 16/120, Saheed Camp, Madangir. It seems that quarrel is primarily within the family and there is no material on record suggesting any breach of peace or public tranquility emanating from such dispute or quarrel at individual family level.
12 If complainant Tohfa is to be believed then her clothes were torn and appellant had beaten up his brother and even his mother. So much so, according to Tohfa, grievous injuries were caused to her husband as his two teeth got broken in the incident in question. This does not seem to be substantiated in any manner whatsoever as there is no corresponding medical examination of the opposite side. Only Tohfa has entered into witness box. Her husband or her mother-in-law have not graced the witness box. In cross-examination, when Tohfa was asked as to what was the reason of the quarrel, she merely claimed that appellant used to abuse them and she claimed that he had entered into quarrel only once.
13 It is also not clear as to where exactly the incident of alleged quarrel had taken place - whether in the house or in the street near the Criminal Appeal No. 10/2014 Sanjay Kumar Vs. State & Anr. 4 of 6 house. As per kalandra, the crowd was found at the spot i.e. house of the parties and not at any public place. According to deposition of HC Ram Niwas, when he first went to the spot, he did not meet appellant and it was only at the time of his second visit that he was able to meet appellant. His such deposition is not in consonance with the averments appearing in kalandra.
14 Moreover, there is some confusion with respect to actual date of the incident. As per the documents appearing in the trial court record, incident had taken place on the night intervening 12.10.2013 & 13.10.2013 but IO has claimed in his deposition that incident took place at about 10.00 PM on the night of 13.10.2013. This anomaly attains some significance because of various cuttings/overwritings which are found to be there in medical examination report of appellant and his arrest memo and personal search memo wherein date of 12.10.2013 has been changed to 13.10.2013. There is no explanation with respect to such overwriting. It is also important to mention that neither arrest memo nor personal search memo bear signatures of accused who had allegedly refused to sign.
15 Be that as it may, fact remains that such type of proceedings should not be resorted to iron out any personal grievances or vendetta. Both the sides are residing in the same premises and there are personal disputes between them. Undoubtedly, there can be breach of peace because of any such personal disputes also but then when the parties are already entangled into litigation, it also gives possibility of concocting a story for false implication. Here there is no independent corroboration. As per the kalandra, public persons were there but there is no corroboration from any neutral corner. Ld. SEM has believed the version of the investigating agency without realizing the fact that complainant has already been made an accused on the basis of report lodged by wife of the appellant. Inquiry conducted by Ld. Criminal Appeal No. 10/2014 Sanjay Kumar Vs. State & Anr. 5 of 6 SEM and the evidence recorded thereunder does not show sufficient material which could have compelled him to record satisfaction showing apprehension of breach of peace.
16 Provision prescribed u/s 107 Cr.P.C. cannot be taken casually or lightly because it involves the liberty of any person and, therefore, action u/s 107 r/w Section 117 Cr.P.C. is warranted only when Executive Magistrate is clearly of the opinion that there is sufficient material warranting seeking a bond from such person and also that such person is likely to commit breach of peace or disturb public tranquility. Undoubtedly, information to that effect was there but the evidence surfaced during the inquiry does not justify any such final action u/s 117 Cr.P.C.
17 Impugned order is accordingly set aside and the bonds submitted by appellant before the Ld. SEM stand cancelled.
18 A copy of the judgment be sent to the court of Ld. SEM along with Trial Court Record.
19 File pertaining to appeal be consigned to Record Room.
Announced in the open Court On this 13th day of August, 2014.
(MANOJ JAIN) ASJ/Special Judge (PC Act) (CBI) South Distt: Saket Courts: New Delhi Criminal Appeal No. 10/2014 Sanjay Kumar Vs. State & Anr. 6 of 6