Delhi District Court
Neeraj Gupta vs State (Nct Of Delhi) on 4 January, 2013
IN THE COURT OF SHRI VIMAL KUMAR YADAV,
ADDL. SESSIONS JUDGE-02 (NORTH), DELHI
CA No. 28/11
Neeraj Gupta
S/o Sh. Vijay Kumar Gupta
Earlier R/o -142, Subhadara Colony
Sarai Rohilla, Delhi
Now R/o 19/73, West Moti Bagh
Sarai Rohilla, Delhi-34. ... Appellant
Versus
State (NCT of Delhi) ... Respondent
Date of institution : 06.07.2011
Date of arguments : 04.01.2013
Date of decision : 04.01.2013
JUDGMENT
1. The appeal arising out of the final order dated 19.4.2011 Passed by Special Executive Magistrate by which the appellant herein was bound to execute the personal/ surety bond for a period of one year in the proceedings under 107/151 Cr.P.C. is hereby disposed off through this judgment.
2. The indispensable facts, against the backdrop of which the proceedings emerged shaping up in Kalandara under Section 107/151 Cr.P.C. before the court of Special Executive Magistrate are that complainant Deepali Gupta and the appellant, who happens to be husband of Deepali Gupta were having strained matrimonial relations. Verily, the complainant Deepali Gupta alleged that her husband Neeraj Gupta, brother in law Nikhil Gupta, sister in law and other family members were against her and were deliberately harassing her so that she may either severe the relations with the appellant Neeraj Gupta or leave the house. On the fateful day, it is alleged by Deepali Gupta, that her husband, her brother-in-law were consuming liquor although she says, her husband CA No. 28/11 Page No. 1 does not take liquor but it was being done by him and his brother just to tease, irritate and harass her. Nevertheless she ignored this deviation in the behaviour of her husband However, her brother in law asked for a tumbler glass which was again ignored by her, which infuriated the appellant who came into the kitchen and scolded her. The complainant, apprehending some harm from the hands of her husband and brother in law, locked the door. The brother in law of the complainant then started knocking the door and when it was not opened by her then he told that he is leaving the house alongwith appellant, therefore, main gate may be closed. The complainant fell into the trap and came out from her room. Her brother in law started taking filthy things with her and her husband, instead of intervening and stopping Nikhil Gupta to desist from such act consented to the act and not only remained a mute spectator but kept on smiling too. Against the backdrop of these facts and circumstances, the complainant Deepali Gupta made a call to the police, which came on the scene after sometimes and after that resulted into apprehending of the appellant and his brother, which ultimately resulted into proceedings u/S 107/151 Cr.P.C. However, according to the complainant Nikhil Gupta left the house before arrival of the police.
3. The Kalandara, after examination of the witnesses i.e. the complainant Deepali Gupta and resulted into notice and reply etc. the impugned order.
4. The appellant has challenged the same on various counts primarily stating that it was conspiracy hatched by his wife Deepali Gupta in collusion with the police official and one Vishal Pratap Singh @ Chhottu, who is next door neighbour of the appellant and cause of the whole problem. It is further stated that there was no breach of peace nor there was any apprehension and it was preplanned conspiracy under which the appellant and his brother got entangled with, that too on the basis of false complaint filed by Deepali Gupta. It is further asserted that the Special Executive Magistrate has not considered the facts, evidence and the relevant law on the aspect and passed the impugned order in violation of all canons of law, therefore, the same is require to be set aside especially when the investigating officer did not give mandatory warning, the CA No. 28/11 Page No. 2 alleged act were not committed in public rather inside house and nuisance was not there at all and in any case it was not continuing nuisance.
5. I have considered the submissions made by the contesting sides and perused the record as well.
6. The under lying object of the provisions under which the impugned order has been passed is to maintain peace, tranquility and order in the society. The state has been empowered to prevent the offence where there is a reasonable ground available to apprehend such breach of peace. Reference can be made in this context to the judgment in Madho Vinyae Vs. SDM Monghyr AIR 1979 SC 2486 and Ram Narain Vs. State of Bihar Air 1972 SC 2225.
7. However, the information on the basis of which the Executive Magistrate is required to proceed, must be definite, clear and contain tangible facts, which should disclose apprehension of breach of peace or commission of some cognizable offence in future also. Unless these conditions are satisfied, the Executive Magistrate is not empowered to invoke this provision. Reference can be made to the judgment Rati Lal Vs. State AIR 1950 Bombay 385.
8. When the facts of the instant case are tested on the parameter as laid down in the various judgments and the provisions itself, then it emerges that order is not sustainable inasmuch as evidence coming on record is full of discrepancies qua time as to when it took place, place of incident and whether any disturbance to the public was there at all. The contents of the kalandara reveal that investigating officer HC Narain Dass found public persons standing outside the house of Neeraj Gupta, appellant herein, when he reached at the spot on receipt of DD No.32-A. However, no public person has been made witness as to what transpired there or as to whether the public really felt offended. DD No.32-A was recorded at 20:30 hours whereas in the cross examination Deepali Gupta has stated that she had called the police at about 9.00 p.m. According to the statement of the complainant Deepali Gupta, both the appellant and his brother were taking liquor whereas medical examination of Nikhil Gupta reflects that there was no CA No. 28/11 Page No. 3 presence of even smell of alcohol whereas the smell of alcohol was found in respect of the appellant. She has categorically stated in her cross examination that both the brothers were drunk and that is why the police took them for medical examination. Suggestion given to the complainant that she is not aware as to whether Nikhil Gupta has taken liquor or not because Nikhil Gupta was not present on her residence. She has also categorically stated that she had seen by her own eyes that both brothers were taking liquor.
9. Then again there is glaring contradiction in the statement of the complainant Deepali Gupta where she has stated in the initial part of her cross examination that she does not have any dispute with regard to the property, whereas in the concluding part of the cross examination she has admitted that she has filed a case in respect of the property in a civil court against her husband/ in-laws. These contradictions make the testimony of the complainant doubtful and then she has improved her statement as initially she has stated in the complaint that when she called the police, her brother in law Nikhil Gupta ran away from the house after abusing her but then in the subsequent statement recorded on 13.1.2011, she has improved her version by saying that her brother in law Nikhil Gupta has attacked on her molesty, whereas this fact was not there at all in the initial complaint. The other side of the coin is that the appellant herself is not happy with the matrimonial life and had given a wrong statement that he is being ill-treated by his wife/ complainant Deepali Gupta. All these factors go on to show that it is basically a family dispute i.e. matrimonial dispute, where both the sides are seeing snakes in the acts of the other, both the sides are apprehensive of one or the other harm which may be done by any of them to the other one. Reasons may or may not be well founded. The statement of the complainant herself reflects that she has ignored the seemingly appropriate, requests of her husband, who has called for a glass which was ignored by the complainant. This is one reason, which may infuriate any husband unless of-course the wife is seriously ill or unable to move for some valid reason. That being not the case with the complainant and in such situation ignorance is more or less CA No. 28/11 Page No. 4 defiance of the command of the husband which are reasonable. This is the ground reality in India as on date, despite changing social and family milieu. All these factors put the whole things under cloud to the extent as to whether such incident had actually happened also becomes doubtful.
10. The impugned order besides is not a speaking order, which may give an idea as to what prompted the Executive Magistrate to pass such an order whereas the glaring discrepancies are there in the record especially in the statement of the complainant. In such circumstances, although the order does not amounts to conviction, nevertheless the same cannot be sustained for the aforesaid reasons. Accordingly, the same is set aside and the appeal stands disposed off accordingly. TCR alongwith copy of this judgment be sent to the ld. Trial Court. The appeal file be consigned to record room.
Announced in open court
on 04.01.2013 (V.K. YADAV)
Addl. Sessions Judge-02/North/Delhi
CA No. 28/11 Page No. 5
CA No.28/11
04.01.2013
Present : Counsel for the complainant.
Appellant through counsel.
Shri P.K. Samadhiya, ld. Addl. PP for the State.
Heard.
Put up later during the course of the day for order.
Vimal Kumar Yadav
ASJ-02 (North)/04.01.2013
Later
4.1.2013
Vide separate order dictated and announced, the appeal is set aside and stands disposed off accordingly. TCR alongwith copy of this judgment be sent to the ld. Trial Court. The appeal file be consigned to record room.
Vimal Kumar Yadav ASJ-02 (North)/04.01.2013 CA No. 28/11 Page No. 6 CA No. 28/11 Page No. 7