Delhi District Court
Mohd. Iqbal Ghazi vs The State Of Delhi on 12 August, 2009
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IN THE COURT OF SURINDER KUMAR SHARMA
ADDL.SESSIONS JUDGE
NORTH-EAST: KARKARDOOMA COURTS: DELHI
Criminal Revision No: 35/09
1. Mohd. Iqbal Ghazi
S/o Mohd. Asloob
2. Mohd. Umar @ Pau
S/o Mohd. Iaqbal Gazi
Both resident of :
K-288, New Seelmpur, Delhi
3. Kamaluddin @ Kamal
S/o Mohd. Iqbal Gazi
R/o K-223, New Seelampur, Delhi
4. Mohd. Afzal
S/o Mohd. Iqbal Gazi
R/o K-223, New Seelampur, Delhi
...... Revisionists
VS
The State of Delhi
...... Respondent
Kalandara No.: 222/07
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PS: Seelampur
U.sec: 107/150 Cr.PC
Date of Institution : 20.04.2007
Date of Arguments: 11.08.2009
Date of order : 21.08.2009
Revision petition under section 397 Cr.PC for
setting aside Show Cause Notice under section 107/150
Cr.PC dated 10.4.2007 issued against the Petitioners as
to why they should not be ordered to execute a
personal bond in the sum of Rs.5000/- by Sh. Ajit Singh
S.E.M Seelampur Court, North East District, Delhi.
ORDER
The present Revision Petition has been filed the Revisionists against the impugned order dated 10.4.2007 whereby the Special Executive Magistrate Sh.Ajit Singh ordered issuance of Show Cause Notice against them.
The facts as mentioned by the Revisionists in their Revision Petition are that the Petitioner No.1 is working as social worker and he has made complainant's against Sh.Mehrazuddin and his family as they are involved 3 in criminal activities and selling of drugs etc but no action was initiated against them as the local police shelters them and in connivance with the police, several false complaints have been lodged against them. It is further submitted in the petition that son of Petitioner No.1 was murdered by some persons but no action could be initiated against them as they enjoyed shelter of police. So, the Petitioner No.1 lodged a criminal complaint under section 302 IPC against Sh.Vivek Gogia DCP and Sh. Gurcharan Dass the then SHO of PS Seelampur, under section 156 (3) Cr.P.C on which the Ld. M.M ordered registration of FIR against them. It is further alleged that the present kalandra is nothing but a tactic to pressurize him to withdraw his case against the police officials. This Kalandra has been filed in collusion with Sh.Mehrazuddin on a false and fabricated story told by them.
The main grounds taken by the Revisionists to 4 challenge the said order of the SEM are that:
(1) the impugned notice is against the law and facts of the case:
(2) the impugned notice is on stereo typed proforma which displays a cavalier approach adopted by Ld. S.E.M and is thus illegal and is liable to be rejected as null and void.
(3) the Ld. Magistrate did not make any inquiry into the matter. It is further the plea of the revisionist that the Ld.Special Executive Magistrate did not apply his judicial mind and the impugned notice suffers from illegality and infirmity and the same was liable to be set aside.
I have heard Sh.B.K.Sharma Ld.Counsel for the Revisionist as well as Sh.S.K.Raguvanshi, Ld.Addl.PP for the State and have gone through the revision petition and the trial court record.
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The main contention of the Ld.Counsel for the revisionist is that the Special Executive Magistrate has issued notice under section 107/111 Cr.P.C without following any provisions of law and did not apply his judicial mind before issuing impugned notice nor did SEM made any inquiry into the matter. It is further the plea of the Revisionist that Ld. SEM did not take into account the fact that the DD lodged against the Revisionist did not mention the name of the petitioners and Petitioner No.2 and 3 had no role in the said kalandra.
The Hon'ble Delhi High Court in the case of Asha Pant Vs. State and ors reported as (2008) DLT (Crl) Vol-II Page 417, has held that:
"Section 107(1), Cr.PC gives the power to the SEM to issue a show- cause notice to a person as to why "he should not be ordered to execute a bond with or without surety for keeping the peace for such period, not exceeding one year, as the Magistrate 6 thinks fit." The section envisages that the SEM should base the above action on the information that he has received that such person is likely to commit breach of peace, disturb public tranquility and on receipt of such information he should form "opinion that there is sufficient ground for proceedings."
It was further held in Asha Pant Vs. State (Supra) that:
" the sum total of the above discussion is that in every case, it would be incumbent upon the SEM to follow the steps envisaged in Section 107 strictly in accordance with the procedure outlined in the provisions of the Cr.P.C set out thereafter. Such steps should be preceded by the formation of an opinion in writing by an Magistrate which should be discernible when the decision is challenged in the Court. Such formation of the opinion should, normally, be based on some preliminary inquiry that should be made by an SEM to justify the formation of an opinion."
In the present case, there is nothing on record to 7 show that the SEM has formed his opinion in writing on the basis of preliminary inquiry conducted by him before issuing the impugned notice.
In a case titled Siya Nand Tyagi Vs. State of U.P 1993(1) Crimes page 425, it was observed that an order under section 111 Cr.P.C passed on a printed proforma with blanks filled in without mentioning the substance of information received and without recording the opinion by Magistrate that there existed sufficient grounds to take action under 107 Cr.PC is an order without application of mind, liable to be quashed.
Perusal of the trial court record shows that impugned notice has been issued on a printed proforma wherein certain blanks have been filled in by the SEM. This practice of issuing notice on printed proforma by filling in blanks has been condemned in the Judgment of Siya Nand Vs. State (Supra).
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In view of the above discussion, I am of the considered opinion that impugned notice was issued by Special Executive Magistrate without holding any preliminary inquiry to form the opinion rather, the same was issued in a mechanical manner without application of judicial mind.
Hence, the impugned notice cannot be sustained and the same is hereby set aside. The revision petition filed by the Revisionists is allowed.
Trial court record be sent back along with copy of the order.
Revision file be consigned to Record Room. Announced in an open court On this date of 21.8.2009 (Surinder Kumar Sharma ) Addl. Sessions Judge KKD Courts;Delhi