Delhi High Court
Ram Prakash And Anr. vs State on 1 May, 1996
Equivalent citations: 1996IIIAD(DELHI)113, 62(1996)DLT628
JUDGMENT Usha Mehra, J.
(1) This petition has been directed by Sh. Ram Prakash and Ashutosh, petitioners herein, against the order dated 18th December,1995 passed by the Special Executive Magistrate. Ram Prakash, petitioner No. 1 is retired Professor from the Institute of Public Administration, Delhi. Petitioner No. 2 is Managing Director of a Company known as Best Power, a Unit of General Signal. They are father and son. Petitioner No. 1 is owner of House No. B-48, New Delhi South Extension, Part-1, New Delhi. Second floor of the said premises belonging to petitioner No. 1 had been let out to one Sh. D.N. Srivastava. The said portion which was let out consists of one room attached with W.C. and bath on Barsati Floor. Petitioner No. 1 kept with him two rooms, one kitchen, two bath and WCs and about 150 sq.ft. terrace in his possession. Since the tennant, Sh. D.N. Srivastava did not pay the rent and obtain illegal electric connection without paying electricity charges and unauthorisedly occupied passage for his kitchen which did not belong to him, therefore, petitioner No. 1 filed civil suit against the said D.N. Srivastava. He also lodged a report with police to remove unauthorised occupation of the passage by the said D.N. Srivastava.
(2) Sh. D.N. Srivastava also lodged complaint with the police on 17th December ,1995 indicating that the petitioners herein came to his tenanted premises and threatened him and his wife that they would kill them within three days. Prior to that also according to D.N. Srivastava, such threats were given by the petitioners for which complaints were lodged.
(3) On this complaint of Sh. D.N. Srivastava the police recorded the statement of his wife Meena Srivastava as well as of D.N. Srivastava and booked the petitioners under Section 107 of the Code of Criminal Procedure (Cr.P.C.). A Kalandara was submitted to the Special Executive Magistrate', who happens to be the Assistant Commissioner of Police. In fact four Kalandaras were submitted two against the present petitioners and two against Sh. D.N. Srivastava.
(4) Grievance of the petitioners is that the Executive Magistrate without application of mind took cognizance and issued notice to them under Sections 107/ 111 Cr.P.C. This Kalandara does not fulfill the ingredients of Section 107 Cr.P.C. Hence issuance of notice under section I Ii Cr.P.C. shows completenon-application of mind on the part of the Special Executive Magistrate. The reason assigned at the time of issuing the notice is as under :- "WHEREAS from the report of the S.H.O. Kotla Mubarakpur, it appears that you, Ashutosh, S/o Ram Prakash, r/o 212, Sukhdev Vihar, a dispute with D.N. Srivastava, r/o B-48, N.D.S.E-I, New Delhi over possession/vacation of property No. B-48, NDSE-I. You are at logger head and have indulged in wrongful acts and as a result thereof cross cases vide F.I -R. No. 469 /95 under Sections 341/506 Indian Penal Code , No. 484/95 under Section 341 Indian Penal Code , F.I.R. No. 507/95 under Sections 448/427/323, F.I.R. No. 541/95 under Sections 448/ 323 Indian Penal Code . have been registered atP.S. Kotla Mubarakpur, Delhi. Still you have been intimidating and threatening to D.N. Srivastava and causing disturbance in the area of P.S. Kotla Mubarakpur. From your wrongful acts, there is an apprehension of breach of peace and public tranquility. That you are likely to do a wrongful act, which may result in breach of peace within the local limits of my jurisdiction and since I am satisfied from the police report that there are sufficient grounds for taking proceedings against you."
Bare reading of this notice shows that Executive Magistrate only picked up the language of the section and used the same in his notice. He of his own has not given any ground for taking cognizance.
(5) I have heard petitioner No. I and Counsel for the State and perused the record. Admittedly the notice under challenge issued by the Special Executive Magistrate dated 18th December, 1995 shows non-application of mind. He has picked up the language of the section and verbatim incorporated in his notice without indicating as to what was the sufficient ground for initiating these proceedings. By merely incorporating the language of the section will not form his expressed opinion. There has to have a sufficient ground for initiating these proceedings which in this notice are lacking. Section 107 Cr.P.C. is aimed as persons who cause a reasonable apprehension of conduct likely to lead to a breach, of peace or a disturbance of public tranquillity. It is an instance of preventive justice which the Courts are intended to administer. It is like Section 106, in aid of orderly society and seeks to prevent conduct subversive of peace and public tranquillity. For that purpose it invests Magistrates with large judicial discretionary powers. The power under Section 107 would apply where the Magistrate affirms his opinion on the basis of the information that unless prevented from so acting the person would act to the detriment of public peace and public tranquillity. But in the instant case, the dispute is primarily between a landlord and a tenant. The two individuals have nothing to do with public tranquillity or breach of peace. No instance has been brought on record to show that by lodging a complaint against the tenant and the landlord disturbed the public tranquillity or was going to disturb the peace. Repeated complaints and counter complaints would not constitute an offence for which purpose the provisions of Section 107 Cr.P.C. could be invoked.
(6) Mrs. Santosh Kohli appearing for the State contended that petitioners had given threat to kill the tenant and trespassed the tenanted premises. It was only after the Investigating Officer recorded the statement of the tenant and his wife on 17th December,1995 that Kalandra was lodged. This argument is not only surprising but startling. It reveals the abuse of the power by the police. Instead of verifying the facts from the neighbours or the alleged plumber in whose presence it was stated the petitioners gave threat, the Investigating Officer relying on the testimony of tenant and his wife booked the petitioners. This shows scant regard by the police to the authority of law. The Investigating Officer did not bother to verify the facts instead he adopted easy method to curb the complaints and lodged Kalandras. Can on the basis of Mr. Srivastava'scomplaintand of thestatement of his wife it could be called sufficient material to form an opinion that public tranquillity was going to be disturbed or there was breach of peace. On this material, to my mind, no action could have been taken. Section 107 Cr.P.C. requires that there has to be a sufficient ground for proceeding against the person. But in this case, I find no sufficient ground except the complaint by the tenant against the land lord. As already pointed out above, the case for non-payment of rent, for unauthorised occupation of the passage, for non-payment of electricity dues are matters subjudice before the appropriate Courts. Now by issuing tills Kalandra against petitioner, the police has tried to favour one party against the other. That is not the scope of the provisions of Sections 107 Cr.P.C. The purpose of Section 107 is preservation of public peace and tranquillity which question in the facts of this case did not arise. This Section does not confer any power on the Special Executive Magistrate to adjudicate or decide disputes of civil nature or to decide the question of titles to property or entitlement to rights. The exercise of this power must be in aid of those rights and against those who interfere with the lawful exercise therefore and even in case where there are no declared or established rights. The power cannot be exercised in a manner that would give material advantage to one party to the dispute over the other. It would not be proper exercise of discretion on the part of the Special Executive Magistrate to interfere with the lawful exercise of the right by a party on consideration. Legal right should be regulated and not prohibited altogether. In the instant case, except the complaint lodged by the present petitioner thereby exercise ing their rights to inform the police that the tenant D.N. Srivastava has forcibly occupied their portion in breach of the contract for lease nothing else has been done by the petitioners. Sh. D.N. Srivastava on the other hand lodged complaints against the petitioners which petitioners say was by way of retaliation. This possibility on the basis of facts on record may be correct. When Smt. Meena Srivastava, wife of the tenant gave her written statement, she nowhere stated that the petitioners committed any assault or threw their utenciles. But when her statement under Section 161 Cr.P.C. was recorded she changed her entire statement by adding that her luggage was also thrown out by the present petitioners. It was done in the presence of a Plumber. The police did not enquire from the said plumber about the authenticity other statement. Prima fade, on the scrutiny of the police file, I find no material to substantiate the allegations in the complaint nor these allegations constitute a threat of breach of peace or public tranquillity. I find it a fit case where this Court in exercise of its inherent jurisdiction must quash the proceedings initiated under Sections 107/111 Cr.P.C. because by initiating these proceedings, to my mind, prejudice has been caused to the petitioners who alleged to have been' wronged rather than to be the wrong doers. For the reasons stated above, the petition is accepted and impugned order is hereby quashed.