Delhi District Court
). Pradeep Yadav vs State on 18 October, 2022
IN THE COURT OF SH. VIKRAM, ADDL. SESSIONS JUDGE
-02-CUM-SPECIAL JUDGE-NDPS ACT, NORTH WEST
DISTRICT, ROHINI COURTS, DELHI
Criminal Revision No. 139/22
1). PRADEEP YADAV
S/o Jaiveer Yadav,
R/o 63, DDA Flats,
Jwalaheri, Paschim Vihar,
New Delhi-110063.
2). DEEPAK SHARMA
S/o Umedi Prasad,
R/o WZ-48, Jwalaheri,
Paschim Vihar, Delhi. .... Petitioners/Revisionists
VERSUS
1. STATE
Through Secretary,
Govt. of NCT of Delhi.
2. ASSISTANT COMMISSIONER OF POLICE
Sub-Division Rohini.
CR No. 139/22 Pradeep Yadav & Anr. Vs. State & Ors. Page No. 1/15
3. SHO P.S. South Rohini
4. SH. RAM BHAGAT
Investigating Officer
ASI P.S South Rohini. .... Respondents
Date of Institution: 19.05.2022
Date when judgment was reserved: 18.10.2022
Date when judgment is pronounced: 18.10.2022
JUDGMENT
1. This revision petition under Section 397 read with Section 399 Cr.P.C. has been preferred by the petitioners/revisionists challenging the entire proceedings emanating from DD No. 135, Kalandra No. 1337 dated 01.04.2022 of P.S South Rohini. The said impugned proceedings were initiated under Section 107/151 Cr.P.C against the Petitioners which are presently pending before the Court of Sh. Subhash Vats, Special Executive Magistrate (SEM), Rohini District.
2. The Petitioner No. 1 is a reputed businessman who runs his restaurant under the name and style of Jaiveer Naan and Chap whereas Petitioner No. 2 is the worker who works at Jaiveer Naan and Chap, M2K, Sector-3, Rohini, Delhi.
CR No. 139/22 Pradeep Yadav & Anr. Vs. State & Ors. Page No. 2/153. The brief facts as per petition are that on 01.04.22 at around 9 p.m, Petitioners were present at their restaurant i.e. Jaiveer Naan and Chap at M2K, Sector-3, Rohii, Delhi and peacefully running their business. On the said date, time and place, two persons namely Ct. Baljeet and Ct. Yogesh visited the said restaurant in civil dress and in an inebriated state and ordered the food. Upon service of food, they stared eating the same in the corridor of public market outside the above referred restaurant. When petitioner no.1 requested them to sit and enjoy the food inside the hall they not only refused to sit inside but started abusing and quarreling with the petitioner. Later on, some police officers along with ACP Vipin Bhatia visited the spot and they started abusing and insulting the petitioner in front of public. After that on instructions of ACP Vipin Bhatia, police personals dragged the Petitioners in PCR van and took them to P.S South Rohini. On the way to PS and even after reaching the concerned PS, HC Pardeep Kumar, Ct. Pardeep Rathi and Ct. Ram Chander gave beatings to the Petitioners. After that in the police station, on the directions of SHO, ASI Ram Bhagat fabricated documents of proceedings u/S 107/151 Cr.P.C without recording statement of any witness at the spot and conducted investigation in illegal and arbitrary manner and deprived petitioners of their right to life and personal liberty by arresting them. The petitioners were then produced before SEM Rohini in Kalandra u/S 107/151 Cr.P.C. The SEM concerned instead of looking into the truthfulness of allegations, without giving an opportunity to petitioners and without even examining the IO, initiated proceedings u/S 107/151 Cr.P.C CR No. 139/22 Pradeep Yadav & Anr. Vs. State & Ors. Page No. 3/15 and without giving any mandatory show cause notice u/S 111 CR.P.C and without providing any access to legal aid, ordered the petitioners to execute the bonds u/S 116(3) Cr.P.C. Aggrieved of this action the petitioners have assailed the entire proceedings starting from arrest of petitioners u/S 151 Cr.P.C.
4. Petitioners have challenged the proceedings on the following grounds :
(i) That the impugned protective measure taken against the Petitioners under Section 107/151 Cr.P.C and proceedings emanating therefrom are nothing but an abuse of process of law.
(ii) That IO namely ASI Ram Bhagat has conducted the investigation in biased, illegal and arbitrary manner and also concealed the true and material facts from the Court. He has neither recorded the statement of any public witness who were present at the spot and who were allegedly scared and feeling bad of the incident "Mojud Bheed Dari Hui Thi aur bua maan rahe the" nor disclosed the complete facts including the fact of presence of Ct. Baljeet, ACP Vipin Bhatia and other associates at the spot and shielded the latter in every possible manner for the reasons best known to him.
(iii) That also, IO failed to record the statement/complaint of the Petitioners and also failed to consider the fact of injury as mentioned in the MLC of Petitioner No. 1 which was caused due to violence committed by HC Pradeep Kumar, Ct.CR No. 139/22 Pradeep Yadav & Anr. Vs. State & Ors. Page No. 4/15
Pardeep Rathi and Ct. Ram Chander against the Petitioners.
(iv) That the documents which are attached with Kalandra are prepared by IO in an absolutely arbitrary and illegal manner and the said documents have been prepared by him in the premises of police station Rohini South.
(v) That the directions of SHO P.S South Rohini and ACP, Rohini to IO ASI Ram Bhagat to arrest the Petitioners under Section 107/151 Cr.P.C was passed without considering the facts that neither there exist any allegation in the statement/complaint of Ct. Yogesh (complainant) which shows any design to commit cognizable offence nor there is satisfaction of IO that any offence under such design cannot be prevented unless the petitioners are arrested.
(vi) The SEM conducted illegality in conducting the proceedings in absence of IO and without recording statement of any witness and without even issuing show cause notice u/S 111 Cr.P.C and also by not providing any access to legal aid to the petitioners. Therefore entire inquiry conducted by SEM is improper, arbitrary and defenctive where he failed follow the procedure established by law.
On these grounds the petitioners have prayed for calling the records of impugned proceedings and setting aside entire proceedings, direct IO ASI Ram Bhagat to file his report containing true set of facts occurred on 01.04.2022 and take appropriate legal action against erring police officials for committing illegal acts.
CR No. 139/22 Pradeep Yadav & Anr. Vs. State & Ors. Page No. 5/155. On receipt of petition notices were issued against respondents and on 20.08.2022 after going through trial Court record and report of SEM the proceedings were stayed. On 24.08.22 as there was no reply to revision petition from respondent no.2 to 4 notices were issued upon them on which respondent no. 2 and 3 filed their reply. Respondent no. 4 did not file any reply/response to the petition.
6. SEM in his report dated 18.08.22 stated that SHO South Rohini had sent Kalandra u/S 107/151 Cr.P.C vide DD no. 135 dated 01.04.2022 against respondents Pradeep Yadav and Deepak Sharma and as per Kalandra both respondents were abusing, threatening and quarreling with PW (Yogesh) and making nuisance in the area and thus disturbing public tranquility. The statement of Yogesh was enclosed with Kalandra and both respondents were produced in police custody with their Counsel Rakesh and whole facts were explained to respondents in presence of their counsel. Both respondents have denied the allegation in kalandra therefore they were asked to furnish surety which was furnished through their counsel who also filed his vakalatnama and after accepting their bonds they were released. The respondents were directed to file their reply but they have not filed any. With this report SEM enclosed copy of vakalatnama, surety bonds and list of previous involvements of petitioners.
7. As per reply of ACP Vipin Kumar (respondent no.2) on 01.04.2022 at about 9.30 PM Ct. Dinesh telephonically informed CR No. 139/22 Pradeep Yadav & Anr. Vs. State & Ors. Page No. 6/15 SHO PS South Rohini(respondent no.3) about quarrel at Jaiveer Chap and Naan Shop M2K Sector 3 Rohini, hence SHO Rohini Directed ASI Ram Bhagat (respondent no.4) to look into the matter who after reaching the spot that the Petitioners were quarreling with one person namely Yogesh. Both Petitioners were very aggressive and using very abusive language. The issue was relating to some eating of food at the shop. Respondent no.4 tried to pacify them but petitioners remained adamant and petitioner no.1 asked petitioner no.2 to put some scratches on his body with intention to implicate other party in some criminal case. The respondent no.2 reached at the spot as he was patrolling and saw petitioners behaving aggressively and not listening to police officers. As there was apprehension of commission of cognizable offence respondent no.2 directed respondent no.4 to take appropriate preventive action and after recording statement of Yogesh Kumar, respondent no.4 arrested petitioners, got them medically examined and produced before SEM, Rohini, the next day. ACP/Respondent no.2 contends that the action of police was justified and petitioners have raised false allegation to create a defence for himself.
8. The reply of SHO PS South Rohini/respondent no.3 is almost identical to reply of respondent no.2. Respondent no.3 also contended that the the action was legal and just and the petitioners are leveling false allegation to create their own defence.
9. As noted above, the respondent no.4, the IO of Kalandra, did CR No. 139/22 Pradeep Yadav & Anr. Vs. State & Ors. Page No. 7/15 not file any reply.
10. As per preventive action report of IO i.e. Kalandra Vide DD no. 135 dated 01.04.2022, filed in the court of Ld. SEM, Ct. Dinesh telephonically informed the IO about the order of SHO to visit Hotel Jaiveer Chap near M2K Market Rohini where a quarrel with owner of hotel was reported. IO reaches at the spot and finds that Ct. Dinesh was trying to stop and reason with Pradeep Yadav and his worker Deepak Sharma but they were rushing towards one Yogesh with intention to beat him and Pradeep was threatening that he has high links and he is the don in the market and he will not let said Yogesh reach home. Pradeep was also bragging that the police which Yogesh had called can do nothing. The crowd gathered at the spot was under fear and were upset with the behaviour of Pradeep and Deepak. IO and Ct. Dinesh tried their best to pacify them but they remained adamant and desperate therefore IO asked Yogesh to go to PS. Even after Yogesh left the spot Pradeep and Deepak did not calm down and kept on hurling abuses and were saying that they will not go home till they teach the lesson to those who made complaint against them. Pradeep was instructing Deepak to scratch him with nails to make a false case. Therefore IO narrated the entire situation to SHO who after discussion with ACP asked to take preventive action u/S 107/151 Cr.P.C thereafter Pradeep and Deepak were arrested because if they were not arrested they would have committed some cognizable offence. After arrest Pradeep and Deepak were got medically examined and after that they were put CR No. 139/22 Pradeep Yadav & Anr. Vs. State & Ors. Page No. 8/15 behind lock up. Next day they were produced before Ld. SEM for proceeding against them.
Along with Kalandra IO has filed statement of Yogesh Kumar. As per this statement when Yogesh kumar was having his meal in the hotel of respondent no.1 respondent no.1 asked him to finish his meal quickly and leave as many persons used to come there. Yogesh told respondent no.1 that he has just started eating and will leave the moment he finishes, however, respondent no.1 and respondent no.2 started pushing him out of hotel asking him that he don't know to whom this hotel belongs. As per Yogesh out of fear of quarrel and beatings he called Ct. Dinesh who was passing by. However, even in presence of Ct. Dinesh and other patrolling staff respondents were adamant and were rushing towards him to beat him therefore he was instructed to leave for PS.
11. In their report by respondent no.2 as well respondent no.3 it is categorically stated that ACP had reached at spot as he was patrolling and he on the spot gave instructions to take preventive action. However, kalandra speaks otherwise. There is no mention of presence of ACP at the spot. The petitioners have specifically stated in revision that Yogesh is a police official and there is neither admission nor denial to this fact. Statement of Yogesh shows that he is resident of sector 7 Rohini yet the petitioners who were doing their job at the spot i.e. Sector-3 were arrested and kept behind lockup for whole night of 01.04.2022. This action would have been justified had there been any apprehension of breach of peace. In CR No. 139/22 Pradeep Yadav & Anr. Vs. State & Ors. Page No. 9/15 Kalandra IO records that petitioners were hurling abuses but even then it was not a ground for their preventive arrest u/S 151 Cr.P.C.
Power of arrest u/S 151 Cr.P.C originates only on the knowledge of a design to commit cognizable offence if it appears that the commission of offence cannot be prevented unless power of arrest is exercised. In this case once the complainant Yogesh was asked to leave to PS, even if it is assumed that there was apprehension or any design, there was no occasion left with the petitioners to commit that offence. It was not a case that Yogesh, as per Kalandra, was previously known to them.
12. 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 v. 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 Sections 107/151 appears to be absolutely necessary to deal with the threatened apprehension of breach of peace, it is incumbent upon the authority concerned to take prompt action. The jurisdiction vested in a Magistrate to act under Section 107 is to be exercised in an emergent situation.CR No. 139/22 Pradeep Yadav & Anr. Vs. State & Ors. Page No. 10/15
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 v. State of Gujarat [(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 v. State of W.B. [(1997) 1 SCC 416 : 1997 SCC (Cri) 92 : AIR 1997 SC 610])".
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 :
"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".CR No. 139/22 Pradeep Yadav & Anr. Vs. State & Ors. Page No. 11/15
13. As Yogesh with whom petitioners were allegedly quarreling had already left for PS there was no reason for any apprehension or any imminent threat of committing any cognizable offence under any design. Hence, the very first action of IO to arrest the petitioners was illegal. The contradictions in the version of police with respect to presence of ACP which was concealed in Kalandra rather puts the entire action of police under suspicion. Illegality, however, does not end here.
14. Before SEM, when Petitioners were produced, as reflected in order sheet dated 02.04.2022, the IO was not present. Order sheet dated 02.04.2022 records, "respondents are produced in P/C. Heard surety produced accepted come on 04.04.2022". The detailed order too records that "IO is not present."
15. Report of Ld. SEM states that the petitioners were represented by counsel Rakesh and they were served with notice and they denied the allegation. However, the first order sheet contradicts the stand taken by SEM. This order sheet not only shows that the petitioners were not represented by counsel but also shows that the petitioners were not served with any notice u/S 111 Cr.P.C before they are asked to furnish personal bond u/S 116(3) Cr.P.C. The TCR however, contains the notices u/S 107/111 Cr.P.C. These notices show that the same were read over and explained to the respondent in vernacular language and after that to the admission/denial on the content of police there is a tick marked on the word "admitted" portion. In the report filed before this court the SEM, however, stated that "The whole facts were explained to the respondents in CR No. 139/22 Pradeep Yadav & Anr. Vs. State & Ors. Page No. 12/15 presence of their Ld. Counsel/Sh. Rakesh. Both the respondents deny the contents of Kalandra". Even the detailed order of SEM records that contents of kalandra were not accepted. Apparently the report of SEM is contradictory to his own record. Further the detailed order passed by Ld. SEM recording the summary of kalandra, arriving at conclusion to proceed, issuing notice u/S 111, do not record the presence of any counsel. Although there is vakalantama filed along with bonds of petitioners, that in itself do not prove that petitioners were given right to counsel at the time of hearing. Bonds are furnished only after orders are passed by Ld. SEM and the order of Ld. SEM do not record presence of any Counsel on behalf of petitioners.
16. Hon'ble High Court of Delhi while dealing with Section 107/151Cr.PC in case titled Moinuddin versus State & Ors. 2009 SCC OnLine Del 3406 : (2009) 164 DLT 160 (DB) laid down the following parameters to deal with such cases as under:
(A) The Magistrate should stress upon the recording of statements of the investigating officer/witnesses before initiating any proceedings under Section 107/116/151, Cr.P.C.
(B) The Magistrate should not order furnishing of surety in the absence of statements of IO/witnesses.
(C) The Magistrate should not send the detenu to jail for failure to furnish surety as directed by him, in case statements of IO/witnesses have not been recorded.
(D) The Magistrate should not sign the order in a mechanical manner on a cyclostyled paper but it should be well reasoned and detailed one.CR No. 139/22 Pradeep Yadav & Anr. Vs. State & Ors. Page No. 13/15
17. The contradictions recorded above, in the proceedings, report filed before court and the order in itself are sufficient for this court to come to conclusion that not only Ld. SEM did not apply his mind while proceeding u/S 107/151 CR.P.C against petitioners, he also did not apply his mind nor went through record before filing any reply in the court. The order of Ld. SEM requiring the petitioners to execute personal bond u/S 116(3) Cr.P.C without holding any inquiry and without even examining the IO and the witnesses, is contrary to the position of law settled by Hon'ble High Court in Moinuddin (supra).
18. Ld. SEM, was under obligation to examine prosecution witnesses with opportunity to opposite party to cross examine those witnesses to rebut allegations. However, in the absence of examination of witnesses, Ld. SEM was precluded not to pass any order of furnishing surety as laid down by condition (B) of the abovesaid judgment. Similarly, as per condition (D), the Magistrate was not supposed to sign the order in a mechanical manner on a cyclostyled paper and ought to be well reasoned and detailed one. As such, impugned order passed by Ld. SEM is against all judicial norms and is liable to be set aside.
19. Keeping in view the facts and circumstances of this case, I am of the considered opinion that entire impugned proceedings emanating from DD No. 135 bear infirmity as well as illegality from its very inception and the same are liable to be set aside, hence set aside. Surety bonds already furnished by the appellants u/s 116 (3) CR No. 139/22 Pradeep Yadav & Anr. Vs. State & Ors. Page No. 14/15 of Cr.P.C in pursuance of order dated 02.04.2022 are hereby cancelled.
20. Copy of this judgment be sent to Ld. Trial Court with TCR.
21. Copy of this judgment also be given dasti to both parties.
22. File be consigned to Record Room.
(Vikram) Announced in Open Court ASJ02cumSpecial Judge (NDPS), on 18th Day of October, 2022 NorthWest District, Rohini Courts, Delhi.
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