Delhi District Court
Ashok Kumar Son Of Sh. Rajender Singh vs Smt. Kiran Bala Wife Of Sh. Ashok Kumar on 30 November, 2018
In the court of Additional Session Judge04, District Shahdara,
(Model/Pilot Project Court), Room No.51, Second Floor, Karkardooma
Courts, Delhi
CNR No. DL SH010062782018 date of institution : 18.09.2018
Crl. Appeal No.28/18 decision reserved on: 28.11.2018
I.D. No.144/18 date of decision : 30.11.2018
In the matter of
Ashok Kumar son of Sh. Rajender Singh
[resident of 28/1, First Floor, Behind Geeta
Bhawan, Teliwara, Shahdara, Delhi110032]
presently residing at Village Sadhura, P.O. Bapa,
Via Radaur, Tehsil Radaur, District Yamuna
Nagar, Haryana. ...Appellant
Versus
1. Smt. Kiran Bala wife of Sh. Ashok Kumar
resident of 28/1, 1st Floor, Behind Geeta Bhawan,
Teliwara, Shahdara, Delhi110032
2. State (NCT of Delhi)
through its standing counsel ...Respondents
J U D G M E N T [On appeal u/s 373 Cr.P.C. arising from the order dated 17.04.2018 passed by the court of Sh. Manoj Pant, Special Executive Magistrate, Shahdara District, Delhi, PS Krishna Nagar Complex, (in brief, the trial court) in DD No.66B, Kalandara u/s 107/150 Cr.P.C. PS Farsh Bazar, Delhi].
Crl. Appeal No. 28/18 Ashok Kumar Vs. Kiran Bala & Anr. Page 1 of 91.1 In order to decide the issues in appeal, it needs introduction of facts and proceedings before the trial court.
1.2 (Introduction) - There is a Kalandra under DD No.24A dated 20.01.2018, which was after DD No.17A and 18A of 18.01.2018 in PS Farsh Bazar (none of copies of the entries were appended with the Kalandra), which was filed before the trial court. However, after receipt of information from respondent No.1 Smt. Kiran Bala, Inquiry Officer/ASI Vinod Kumar alongwith Ct. Ankur reached the spot and recorded statement dated 20.01.2018 against appellant Ashok Kumar, who is husband of respondent No.1 visavis ASI Vinod Kumar had seen that appellant was indulging aggressive, which was apprehensive to breach peace or of cognizable offence. He was apprehended.
1.3 The appellant was produced from the trial court on 21.01.2018, at that time, statement dated 21.01.2018 of respondent No.1 & of Inquiry Officer ASI Vinod Kumar were recorded. Then appellant was given show cause notice u/s 111/116 Cr.P.C. and he was asked to furnish personal bond/surety bond but for want of bonds, he was sent to judicial custody and later he was released from jail after furnishing of bonds. Then appellant had filed the reply on 17.4.2018 by narrating all the circumstances as to how the respondent No.1 concealed her previous marriage or there are matrimonial litigation or criminal complaint against respondent No.1.
Thence, on 17.04.2018 an order u/s 107/151 Cr.P.C. r/w section 117 Cr.P.C. was passed by the trial court, when on the same very day appellant had filed the reply. The trial court passed impugned order Crl. Appeal No. 28/18 Ashok Kumar Vs. Kiran Bala & Anr. Page 2 of 9 dated 17.4.2018 considering the statements of respondent No.1 Kiran Bala recorded on 21.01.2018 and of ASI Vinod Kumar, then appellant was bound down for keeping peace for a period of two months from 16.06.2018; the appellant furnished the bond. He is feeling aggrieved from that order dated 17.04.2018 and he filed the present appeal (it was filed u/s 374 Cr.P.C. but it is being treated u/s 373 Cr.P.C. being an accidental error).
2.1 The appeal is in 10 pages, however, 8 pages are reiteration of proceedings and other circumstances and remaining pages are grounds of appeal, in nutshell, not only the impugned order is arbitrary, illegal, contrary to law but also without appreciating the plea of appellant and appellant has been asked to furnish the bond for keeping peace for a period of two months, despite there is nothing against him and he was also kept in judicial custody for some time prior to accepting the surety bond. Under these circumstances, the impugned order is liable to be set aside.
2.2 Sh. N.K. Verma Advocate Ld. Counsel for appellant, during submissions has reiterated the similar contentions that in the proceedings u/s 107/150 Cr.P.C. opportunity to cross examine the witnesses is a fundamental right to cull out the truth, however, that opportunity was never given to the appellant and the trial court just relied upon the statement of respondent No.1 and of ASI Vinod Kumar; without going through their test of cross examination, the veracity of such witnesses cannot be accepted. There is no opportunity given to the appellant to establish his own stand and on both counts, the Crl. Appeal No. 28/18 Ashok Kumar Vs. Kiran Bala & Anr. Page 3 of 9 impugned order is liable to be set aside. Lastly, since the time has elapsed, the maximum period prescribed for inquiry is 6 months and that time has also been exhausted and there is nothing to keep any matter pending, the period of bond is over, however, the order was not within the law as well as the personal disputes of parties have been given the colour of this Kalandra.
In counter submission (after submissions of respondents), it is submitted that there is no scope to remand the matter back in view of the previous submissions of appellant.
3.1 (Plea of respondent No.1) - Sh. Sumit, Advocate, Ld. Counsel for respondent No.1 requests that the DD entries were rightly registered, the episode had also happened and Kalandra was also filed before the trial court and under these circumstances, there is no scope to set aside the order dated 17.04.2018. Although it appears from the proceedings drawn that after notice, the witnesses were not called again but it would not accrue any right to the appellant to set aside the order completely. At the most, the matter may be remanded back for reconsideration by the trial court. Ld. Counsel for respondent makes reference of Madhu Limaye and Anr. Vs. SubDivisional Magistrate and Ors. AIR, 1971 SC 2846 when there is reasonable apprehension of conduct likely to lead to a breach of peace or disturbance in the public tranquility, this process of kalandara and other proceedings are followed 3.2 (Plea of respondent No.2) Sh. I.H. Siddiqui, Ld. Addl. P.P. for the State has identical submissions that there are some procedural oversights and in order to cure it, the matter may be remanded back.
Crl. Appeal No. 28/18 Ashok Kumar Vs. Kiran Bala & Anr. Page 4 of 94.1 (Findings with reasoning) - The salient facts have already been narrated above in paragraph no.1 and in order to appreciate the contentions and many aspects discovered from the record of trial court, it requires to first discuss the procedure to be followed in the proceedings for security for keeping the peace and the good behviour (Chapter VIII of Cr.P.C.) and this Chapter contains provisions of section 107 Cr.P.C. (when information is received about likelihood of breach of peace or public tranquility and show cause notice to person as when he should not be ordered to execute bond), section 111 (order to be made by Magistrate while acting u/s 107 Cr P C) and section 116 (as to how inquiry should be conducted about truth of information, which is exhaustively laid down in section 116 Cr.P.C). and then appropriate order is followed as per section 117 Cr.P.C.
4.2 The procedure may be summarised that on receipt of Kalandra, the trial court may pass an order u/s 107 Cr.P.C. by giving show cause notice as to why person required be not order to execute bond for keeping peace for a particular period and he may be asked to furnish bond as per requirement of section 111 CrPC. Then section 116 Cr.P.C. comes into picture to take to inquire about truth of information and to take further evidence as may appear necessary. The procedure is prescribed u/s 116 (2) Cr.P.C. that the inquiry shall be as for conducting 'trial' and 'for recording evidence' in summons cases. ChapterXX (section 251259) of Cr.P.C. is in respect of 'trial of summons cases by Magistrate'. Section 274 Cr.P.C. prescribes as to how 'evidence is recorded' in the summons cases. Since these provisions are based on principle of natural justice inherent opportunity of being heard as well as Crl. Appeal No. 28/18 Ashok Kumar Vs. Kiran Bala & Anr. Page 5 of 9 opportunity to cross examine the witnesses. This explores to elicit truth. Thereafter the inquiry conducted or evidence recorded will be evaluated and then stage of order u/s 117 Cr.P.C. arrives.
By comparing this procedure with the proceedings recorded by the trial court (as introduced in paragraph no.1 above), it is apparent that the procedure so prescribed has not been followed by the trial court.
4.3 Immediately on filing of the Kalandra, the trial court had recorded statement of respondent mo.1 on 21.01.2018 and it is also recorded in the proceedings that statement of ASI Vinod Kumar was also recorded. Whereas in the entire proceedings, there is no such statement of ASI Vinod Kumar recorded by the trial court but it is statement of ASI Vinod Kumar, which he had filed with the Kalandra (in the documents in Kalandra statement of two persons are mentioned, one is of Smt. Kiran Bala and another statement is of ASI Vinod Kumar), meaning thereby the statement of ASI Vinod Kumar forwarded with the Kalandra has been treated as statement before the trial court. The statement of Kiran Bala is manuscript and statement of ASI Vinod Kumar is computerized except name, designation, date and signature of ASI Vinod Kumar and of Special Executive Magistrate. This statement of ASI Vinod Kumar is replica of Kalandra. This is not fair and proper practice followed by the trial court. In addition, Kalandra is in fact a complaint, the author of kalandara is not required to annex his statement with the kalandara and in case if it is so annexed, it cannot be endorsed by the trial court just to make it appear that it was recorded before Special Executive Crl. Appeal No. 28/18 Ashok Kumar Vs. Kiran Bala & Anr. Page 6 of 9 Magistrate. It is reflecting serious aspects and as appearing this may be a prevalent practice, that is why author of Kalandra prepares such kind of statement in advance.
4.4 After recording statement of respondent no.1, a show cause notice u/s 111 r/w 116 (3) Cr.P.C. was given to the appellant, he denied the allegations explained in notice and claimed opportunity to contest it by trial. Thereafter, the appellant had filed his detailed reply on 17.04.2018.
Subsequent to framing of show cause notice neither ASI Vinod Kumar nor Ct. Ankur nor Smt. Kiran Bala were called for their statements by the trial court nor statement of any of them were recorded by the trial court and immediately on filing the reply on 17.04.2018, the said order u/s 117 Cr.P.C. was passed by the trial court, even at that stage, the appellant was not given any opportunity to establish his stand taken in the reply. The impugned order is based on statement dated 21.1.2018 of respondent no.1 recorded prior to show cause notice [and so called statement dated.21.1.2018 of ASI Vinod Kumar cannot be construed statement before trial court, which was annexed with kalandra). To say, at no stage of the proceedings before the trial court, the codified procedure has been followed by the trial court. The procedure has already been summarized in subparagraph No. 4.2 above, it is based on principle of natural justice, which is imbibed in the procedure but it has not been followed by the trial court. Moreover, the proceedings are also reflecting that a convenient mode has been adopted instead of following the clear procedure established Crl. Appeal No. 28/18 Ashok Kumar Vs. Kiran Bala & Anr. Page 7 of 9 by law. Therefore, the order dated 17.04.2018 u/s 117 Cr.P.C. has been passed by skipping the established procedure of section 116 Cr.P.C. and there is no such short cut available to the trial court to be deviated from such procedure. Hence, the order dated 17.04.2018 does not stand in the eyes of law, it is invalid and hence it is set aside. Consequently, the bond to keep peace for a period of two months is discharged and cancelled.
5. Now, the question arises, in view of the rival submissions, to consider the termination of proceedings or to remand the matter back for reconsideration by the trial court. Section 116 (6) Cr.P.C. prescribes period of six months for the inquiry and the Kalandra is of 20.01.2018, based on DD No.24A, it was subsequent to DD No.17A and 18A, however, none of the record of three entries are annexed with the Kalandra. However, respondent No.1 in her statement talks about incident of 25.07.2017 and 17.01.2018 being interse matrimonial or property dispute of couple (the appellant and the respondent No.1). The respondent No.1 in her statement dated 21.01.2018 narrates about their individual disputes and nothing is appearing with regard to any event at public place or of breach of peace. Under these circumstances, when the period prescribed for inquiry has lapsed and there was nothing happened in that tenure, under these circumstances it is not a case to remand the matter back for second round of litigation, the reliance can be placed on Keshav Kumar Vs. State, 2008 (2) LRC 19 (Del) that section 107, 108, 109 Cr.P.C. cannot be invoked when there are civil disputes between the parties and similarly, in the present case the respondent No.1 and appellant are in various litigation emerging from Crl. Appeal No. 28/18 Ashok Kumar Vs. Kiran Bala & Anr. Page 8 of 9 matrimonial dispute. The requests of respondent No.1 and 2 to remand the case back for fresh inquiry is declined.
6.1 (Direction to trial court) Accordingly, the appeal is disposed off. The copy of this judgment be sent to Special Executive Magistrate/successor Court not only for information but also for compliance of statutory provisions, as from the proceedings it is appearing as to how wrong practice is being followed by Ld. Special Executive Magistrate in the inquiries under Chapter VIII of Cr.P.C. Since the the court of Special Executive Magistrate is dealing this kind of matter regularly, the procedure prescribed by law is to be followed instead of any other method, it is expected the proper procedure will be followed in pending matters and other matters expected to be dealt.
6.2 Another copy of this judgment be also sent to Ld. Deputy Commissioner of Police, concerned District for necessary information, record and also in case the concern Magistrates are to be guided and sensitized with regard to the procedure to be followed, the appropriate action may be taken on its end.
Hence, this judgment concludes. TCR be sent back to the concern/successor court.
Announced in open court today Friday, Agrahayana 9, Saka 1940 (Inder Jeet Singh) Additional Session Judge04 (Shahdara), KKD Courts, Delhi 30.11.2018 Digitally signed by INDERJEET INDERJEET SINGH Location: Shahdara District, Karkardooma Courts SINGH Date: 2018.11.30 17:03:47 +0530 Crl. Appeal No. 28/18 Ashok Kumar Vs. Kiran Bala & Anr. Page 9 of 9