Delhi District Court
Nityanand Khatua vs State Of Nct Of Delhi on 4 February, 2023
DLNW010113802022
Presented on : 17-11-2022
Registered on : 19-11-2022
Decided on : 04-02-2023
Duration : 0 years, 2 months,
17 days
IN THE COURT OF
ASJ/SPECIAL.JUDGE(NDPS)
AT NORTH WEST, ROHINI COURTS, DELHI
(Presided Over by Sh. Vikram)
Cr Rev/353/2022
Nityanand Khatua
S/o Sh. Narayan Khatua
R/o B-5, Shalimar Village,
Delhi-110088.
....Revisionist/petitioner
Vs.
1. State of NCT of Delhi
Through APP
2. Sh. Sudhir Sharma,
(Station House Officer)
P.S. Shalimar Bagh, Delhi.
3. Sh. Mangal Chand Saran,
(Head Constable/IO)
P.S. Shalimar Bagh, Delhi.
C.R. No. 353/2022 Nityanand Khatua Vs. State of NCT of Delhi Page no. 1
4. Sh. Prakash Singh,
(Head Constable)
P.S. Shalimar Bagh, Delhi.
5. Smt. Sushma Jindal
W/o Sh. Pradeep Jindal
R/o House No. B-3, Shalimar Village,
Delhi-110088.
....Respondents
JUDGMENT
(Delivered on 04-02-2023)
1. By this criminal revision the revisionist/petitioner impugns, the order dated 08.09.2022 vide DD No. 73A passed, and show cause notice under Section 107/111 Cr.P.C. vide file no. 1468 dated 16.09.2022 issued, by Special Executive Magistrate, North West District Delhi on the complainant made by Smt. Sushma Jindal (respondent no. 5 herein)s
2. The revisionist is a practising lawyer at Delhi Courts. Respondent no. 5 is front door neighbour of the revisionist. Respondent no. 5 and her husband are involved in a number of illegal activities. Tenant of revisionist at ground floor used to opening a glass door causing infringement of right to privacy due to which lady member of revisionist's family unable to sit and move freely in his own house. Revisionist has filed several complaints to SHO PS Shalimar Bagh, DCP Ashok Vihar and Commissioner of Police but no action has been taken.
C.R. No. 353/2022 Nityanand Khatua Vs. State of NCT of Delhi Page no. 2
3. On 24.10.2022, at the time of Diwali, the said tenant of respondent no. 5, at the instance of respondent no. 5, hurled a cracker bomb at the entrance door of the revisionist's house to create nuisance and panic.
4. Feeling aggrieved and dissatisfied for not taking any action on the complaints of revisionist by SHO PS Shalimar Bagh, he filed a complaint under Section 133 Cr.P.C. before SDM, North West, Rampura, Delhi vide DD No. 7833 dated 24.04.2022.
5. In the evening of 18.10.2022, when revisionist entering int to his house, one HC Mangal Chand Saran (respondent no. 3) came and told that SHO (respondent no. 2) has summoned the revisionist as proceedings under Section 107/150 Cr.P.C. has been initiated against him on the complaint of respondent no. 5. On 19.10.2022 when revisionist visited the PS concerned, behaviour of the SHO was not cordial and SHO gave the impugned notice to the revisionist.
6. On 16.09.2022, revisionist received summoned from SEM, North West, Jahangirpuri, with direction to attend the Court on 07.10.2022 at 02:00 pm. The said proceedings are the result of complaint under Section 133 Cr.P.C. dated 24.04.2022 filed by revisionist before ld. SDM.
7. Grounds taken for filing the present revision are that IO C.R. No. 353/2022 Nityanand Khatua Vs. State of NCT of Delhi Page no. 3 HC Mangal Chand Saran intentionally implicated the revisionist in connivance with respondent no. 5. Ld. S.E.M. failed to appreciate the criminal back ground of respondent no. 5
8. The DD entry itself records that the complainant/R-5 and the petitioner are having several cases against each other and they are in litigations for many years. Therefore, the IO made opinion that there is possibility of commission of cognizable offence. Hence, prepared the kalandra against both the petitioner as well as R-5.
9. The object of section 107 Cr.P.C is just to stop / prevent any possibility or apprehension of disturbance of public peace in the society and that danger to public peace and tranquility must be imminent, only than this section would come into play to stop it. The object of this section has been elaborated by the Hon'ble Apex Court in case titled Rajender Singh Pathania vs. State (NCT of Delhi), (2011) 13 SCC 329 as under:
"17. The objects of Sections 107/151 Cr.P.C 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.P.C. An arrest under Section 151 CA No.22/2022 Neelam & Ors. Vs. State 7/15 can be supported when the person to be arrested designs to commit a cognizable offence. If a proceeding under Section 107/151 appears to be absolutely necessary to deal with the threatened apprehension of breach of peace, it is incumbent upon the authority C.R. No. 353/2022 Nityanand Khatua Vs. State of NCT of Delhi Page no. 4 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 which a police officer may arrest a person without an order from a Magistrate and without a 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 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 vs. State of Gujraj [(2005) 3 SCC 647 :
2005 SCC (Cri) 794 : AIR 2005 SC 2115], SCC p. 650, para 5.) (See also Joginder Kumar v. State of U.P. [(1994) 4 SCC 260 : 1994 SCC (Cri) 1172 : AIR 1994 SC 1349] and D.K. Basu vs. State of W.B. [(1997) 1 SCC 416 : 1997 SCC (Cri) 92 : AIR 1997 SC 610])".
10. In Kishor and Another Vs. State of Maharashtra and Ors Cri. W P No. 183/2014 Honble High Court of Judicature at Bombay held that :
C.R. No. 353/2022 Nityanand Khatua Vs. State of NCT of Delhi Page no. 5 "Knowledge to the police officer of a design to commit any cognizable offence and formation of opinion by the concerned police officer that the commission of offence cannot be prevented unless preventive action is aken against proposed offender is sine qua non for taking preventive action as per section 151(1) of Cr.P.C. Depriving a person of his liberty guaranteed by Article 21 of the Constitution of India cannot be left to the whims and wishes of police officers, and if it is permitted it would be conferring arbitrary and unbridled powers on the police officials/authorities. It is important to note that knowledge of the police officer about the design to commit any cognizable offence by a person has to be reflected from the record showing the details of proposed preventive action against that person".
11. Litigations between the parties of which they are taking legal recourse in no circumstances can be considered a ground for proceedings under Section 107/151 Cr.P.C. Otherwise in every civil suit there will be proceedings under Section 107/151 Cr.P.C. Requirement of Section 107/151 Cr.P.C. is that there has to be an imminent threat or danger of commission of congnizable offence which is no where reflected in the kalandra as it is not mentioned on what basis IO came to the opinion that there was an imminent threat to public tranquility. Rather kalandra itself shows that there was a possibility of some cognizable offence in near future.
12. Keeping in view the facts and circumstances of this case, I am of the considered opinion that there was no ground to proceed C.R. No. 353/2022 Nityanand Khatua Vs. State of NCT of Delhi Page no. 6 against the petitioner as well as the respondent no. 2 under Section 107/151 Cr.P.C. as there was imminent threat of commission of cognizable threat or disturbance of public tranquility. Therefore, entire impugned proceedings emanating from DD No. 73A bear infirmity as well as illegality from its very inception. Therefore, DD No. 73 A and the proceedings initiated thereafter are set aside.
13. Copy of this judgment be sent to Ld. Trial Court with TCR.
14. Copy of this judgment also be given dasti to petitioner/revisionist.
15. File be consigned to Record Room. Digitally signed by VIKRAM Date:
VIKRAM 2023.02.04
16:40:26
Date : 04.02.2023 +0530
(Vikram)
ASJ-02/Spl. Judge (NDPS),
North West, Rohini Courts,
Delhi/04.02.2023
Digitally signed
Dictated on : 04.02.2023 by VIKRAM
Transcribed on : 04.02.2023 VIKRAM Date:
2023.02.04
checked on : 04.02.2023 16:40:37
Signed on : 04.02.2023 +0530
(Vikram)
ASJ-02/Spl. Judge (NDPS),
North West, Rohini Courts,
Delhi/04.02.2023
C.R. No. 353/2022 Nityanand Khatua Vs. State of NCT of Delhi Page no. 7