Delhi District Court
Mohd. Asif vs The State ( Govt. Of Nct ) Of Delhi on 30 September, 2015
IN THE COURT OF SH. KAMLESH KUMAR : DISTRICT & SESSIONS JUDGE :
NORTHEAST DISTRICT : KARKARDOOMA COURTS : DELHI
CR no. 10/15
Unique Case ID No. 02402R0165932015
Mohd. Asif
S/o Mohd. Kamaruddin
R/o 12A/62B, Gali no.3,
Vijay Mohallah, Mauzpur,
Delhi110053 ` ..........................REVISIONIST
Versus
1 The State ( Govt. of NCT ) of Delhi
2 Ms. Rizwana D/o Late Ashique Hussain
r/o O43, Flat, C1, gali no. 16(2)
Brahmpuri, Delhi110053 .........................RESPONDENTS
Date of institution of case : 15.05.2015
Date of reserving the case for orders : 14.09.2015
Date of passing of orders : 30.09.2015
J U D G M E N T
This is a revision petition under Section 397 CrPC filed by Mohd. Arif, directed against the order dated 22.04.2015 passed by Sh. S. A. Rashid, ld. Special Executive Magistrate, NorthEast District, Seelampur, Delhi on kalendra dated 22.04.2015 u/Sec. 107/151 CrPC directing him to execute personal bond of Rs. CR no.10/15 Mohd. Asif vs. State and ors. Page 1of 9 20000/ with one surety in the like amount.
2. The facts, briefly stated, leading to the filing of the present revision petition are :
a) on 21.04.2015, Mohd. Asif / revisionist and his wife Mst.
Rizwana had to appear before the CAW Cell around 4PM regarding a complaint filed by her. Mohd. Asif / revisionist started shouting and abusing his wife Mst. Rizwana in public outside the CAW Cell. SI K. P. Singh tried to make him understand and sent him outside the Police Station but he again abused his wife and threatened to kill her, if she did not withdraw her case. SI K. P. Singh accompanied by Head Constable Ram Singh then went to the gate of the Police Station and felt that the situation may get out of control. He apprehended Mohd. Asif and arrested him under Section 107/151 CrPC. He was produced before the ld. SEM on 22.04.2015.
b) The ld. SEM, NorthEast served him a notice under Section 107/111 CrPC and thereafter, directed him to execute a personal bond in the sum of Rs.20,000/ with one surety in the like amount.
3. Aggrieved by the said order dated 22.04.2015, the revisionist has preferred the present revision on the following grounds inter alia:
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a) that the impugned order dated 22.04.2015 is bad in the eyes of law as mandatory provisions of the CrPC have not been complied.
b) that the impugned order dated 22.04.2015 is based on surmises and conjectures and is not sustainable in the eyes of law as no fact finding or any other inquiry was conducted by the ld.
SEM.
c) that the impugned order is not a speaking order and no reason has been given by the ld. SEM, before issuing the summons and notice under Section 107/111 CrPC.
d) that the ld. SEM failed to consider the fact that the IO had not collected any evidence or recorded the statement of official of CAW cell before passing the impugned order.
4. Notice of the revision was given to the State.
5. I heard the ld. counsel for the revisionist and ld. Chief Prosecutor for the State and have carefully gone through the entire record.
6. The record reveals that Mohd. Asif / revisionist and his wife Mst. Rizwana were required to appear before the CAW cell, North East, Delhi located on the first floor of the Police Station CR no.10/15 Mohd. Asif vs. State and ors. Page 3of 9 Seemapuri. They came to CAW cell on 21.04.2015 at 11am and were asked to appear again at 2.30pm. Mst. Rizwana visited CAW Cell to find out the next date of hearing but Mohd. Asif did not turnup. At around 4 pm, Mohd. Asif / revisionist threatened his wife Mst. Rizwana to withdraw her case. Hearing the commotion, SI K. P. Singh alongwith Head Constable Ram Singh went to the gate of the Police Station Seemapuri, where revisionist Mohd. Asif was abusing his wife Mst. Rizwana. He felt that there was apprehension of commission of cognizable offence. Mohd. Asif was then arrested and putup in the lockup.
7. DD no. 72B dated 24.04.2015 reveals that Mohd. Asif and Mst. Rizwana had exchanged hot words in the CAW Cell. Mohd. Asif was advised to maintain peace and was asked to leave the Police Station but at the gate of the Police Station, he again started abusing her and threatened to withdraw her case or he would kill her. It is evident from this DD no. 72B that the alleged incident occurred at the gate of the Police Station. Except the revisionist and his wife there was none else at the gate of the Police Station at the relevant time.
8. Statement of Mst. Rizwana recorded by the Head Constable Ram Singh reveals that she had lodged a complaint with the CAW cell against her husband/revisionist on 12.04.2015. She came to CR no.10/15 Mohd. Asif vs. State and ors. Page 4of 9 the CAW cell on 21.04.2015 and her husband Mohd. Asif had come along with his brother to the CAW Cell. He asked her to withdraw her complaint and threatened to kill her. She then went to the Police Station and lodged a complaint against her husband/revisionist.
9. It is evident from the statement of Mst. Rizwana and DD no. 72B that there was no possibility of Mohd. Asif/revisionist committing any offence and there was no possibility of any breach of peace at the Police Station.
10. The impugned order dated 22.04.2015 passed by the ld. SEM, North East District reveals that a notice under Section 107/111 CrPC was served upon Mohd. Asif/revisionist. The said notice cannot be considered proper by any stretch of imagination. The contents thereof reveals that there are a number of blanks in the said notice. It is not mentioned as to whom the revisionist Mohd. Asif was allegedly threatening. The amount of the personal bond which the ld. SEM had directed him to furnish had also been left blank. It is, thus, apparent that the notice under Section 107/111 CrPC was issued mechanically by the ld. SEM. Had he applied his mind, he would have mentioned the name of the person whom Mohd. Asif had allegedly threatened. He would have, also, specified the amount of the personal bond but nothing CR no.10/15 Mohd. Asif vs. State and ors. Page 5of 9 of that sort has been done by him.
11. The ld. SEM proceeded to issue order after serving the notice under Section 107/111 CrPC. In his order, he has only mentioned the name of the IO. He has, also , not mentioned the contents of the report/material considered by him. There is no reasoning as to what specific measures were taken/required for preventing the commission of breach of peace by Mohd. Asif / revisionist.
12. Our own High Court in Moinuddin vs. State and Ors. 2010(2) Crimes 114 ( Del.) has held as under:
" Magistrate should not not sign the order in a mechanical manner on a cyclostyled paper but it should be well reasoned and detailed one.
All the police officers while dealing with cases U/S 107/151 CrPC should keep in the mind the above mentioned guidelines, directions, mentioned above, before initiating any action. They must have the prior concurrence from the concerned ACP I/C subdivisions before effecting any CR no.10/15 Mohd. Asif vs. State and ors. Page 6of 9 arrest U/s 151 CrPC. This must be meticulously observed. The ACsP should not give their approval in mechanical manner but must act strictly as per the law/directions given by various courts to ensure that there is no misuse of these provisions of the law. The SEM must realise the onerous responsibility they carry and act in a fair and transparent manner in accordance with guidelines laid down by the courts and summarized in this SO."
13. Our own High Court in Keshav Kumar vs. State and Ors 2009(1) JCC 22 has observed as under:
"Section 107, 108 and 109 are to maintain public tranquillity and to prevent a wrongful act that may occasion a breach of peace or disturb public tranquillity. The section cannot be invoked when there is a civil dispute.......
ACP while acting under Section 107/151 CrPC acts as a Special Executive Magistrate and performs quasijudicial CR no.10/15 Mohd. Asif vs. State and ors. Page 7of 9 functions. He is supposed to apply his mind which GOD has given to him and not to act blindly on the report of his subordinates and juniors........"
14. Out own High Court in Asha Pant vs. State and ors 2008 [2] JCC 984 has observed as under:
" ............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 CrPC set out thereafter. Such steps should be preceded by the formation of an opinion in writing by the Magistrate which should be discernable when the decision is challenged in the Court. Such formation of the opinion should normally be based on some preliminary enquiry that should be made by an SEM to justify the formation of an opinion. Of course, this cannot be straitjacketed since there may be cases where an SEM may have to form an opinion rightaway to prevent the breach of CR no.10/15 Mohd. Asif vs. State and ors. Page 8of 9 peace or public tranquillity. However, that should be the exception and not the rule."
15. In the instant case, there is nothing in the notice issued by the ld. SEM to indicate that he had formed an opinion as required under Section 107 CrPC prior to issuing such notice. Even minimal inquiry that was required in the facts and circumstances of the present case was not undertaken. It has become evident from the record that notice under Section 107/111 CrPC and order under Section 107/151 CrPC have been passed mechanically by the ld. SEM. I find it, therefore, that neither the notice nor summons can be sustained in law. The petition is allowed and proceedings under Section 107/151 CrPC against the revisionist Mohd. Asif are quashed.
16. Copy of the order along with ld. SEM Court record be sent back.
17. Revision file be consigned to record room.
Announced in the open (KAMLESH KUMAR)
Court on this 30 day
th
District and Sessions Judge ( NE )
of September, 2015 Karkardooma Courts, Delhi
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