Delhi District Court
Shobik Gupta vs . State & Anr. on 20 December, 2021
Shobik Gupta Vs. State & Anr.
IN THE COURT OF SH. VIJAY SHANKAR,
ADDITIONAL SESSIONS JUDGE - 05, (CENTRAL DISTRICT)
TIS HAZARI COURTS, DELHI
CR NO.: 79/2021
UNIQUE CASE ID NO.: DLCT010122522021
IN THE MATTER OF :
Shobik Gupta
S/o Sh. Mukesh Gupta
R/o C19, Gupta House,
Rana Pratap Bagh, Delhi. .... Revisionist
VERSUS
1. State of NCT of Delhi
2. Rahul Gupta
S/o Sh. Kamal Kumar Gupta
R/o 66, 1st Floor, Vasant Vihar,
Delhi. .... Respondents
CR No.79/2021 Page 1 of 29
Shobik Gupta Vs. State & Anr.
Date of institution of the revision petition : 22/09/2021
Date on which judgment was reserved : 04/12/2021
Date of judgment : 20/12/2021
JUDGMENT
1. By way of present judgment, this court shall conscientiously adjudicate upon criminal revision petition under section 397 of the Code of Criminal Procedure, 1973 (hereinafter referred to as "Cr.P.C.") filed by the revisionist against the orders dated 18/06/2021 and 30/06/2021 (hereinafter referred to as 'impugned orders') passed by Ld. Special Executive Magistrate, Central District, Delhi, in DD No. 30A dated 05/06/2021 PS D.B.G. Road.
In the present revision petition, the revisionist has prayed to set aside the orders dated 18/06/2021 and 30/06/2021 passed by the Ld. Special Executive Magistrate and also prayed to setaside notices dated 21/06/2021 and 30/06/2021 u/s 107/150 Cr.P.C. and 107/111 Cr.P.C. respectively issued to the revisionist by Ld. Special Executive Magistrate and also prayed to setaside the Kalandra u/s 107/150 Cr.P.C. filed against the revisionist before the Ld. Special CR No.79/2021 Page 2 of 29 Shobik Gupta Vs. State & Anr.
Executive Magistrate.
2. Brief facts necessary for just adjudication of the present revision petition as stated in the present revision petition are that the present revision petition has been filed against the order dated 18/06/2021 passed by the Ld. Special Executive Magistrate thereby notice u/s 107/150 Cr.P.C. was issued and vide order dated 30/06/2021 notice u/s 107/111 Cr.P.C. was issued to the revisionist in the Kalandra. The present matter pertains to a civil dispute of a disputed property, however, the respondent No. 2 has given criminal colour to the civil dispute. On 28/05/2021, respondent No. 2 along with hired persons arrived at the property No.83/31, BlockC3, East Park Road, Shidipura, Karol Bagh, Delhi and broke the locks, which were placed by Sh. Kamal Kumar Gupta and forcibly entered into the property to take possession of the same. The said property was in the possession of Sh. Kamal Kumar Gupta (Director of P. P. Jewelers Pvt.
Ltd.). The said property is divided into two plots and is duly constructed. The said property was purchased vide two separate sale deeds in the name of Vasant Associates Pvt. Ltd and Purnima CR No.79/2021 Page 3 of 29 Shobik Gupta Vs. State & Anr.
Associate Pvt. Ltd. and all the expenses of construction of the building were paid by P. P. Jewelers Pvt. Ltd. The possession of the said property was with Sh. Kamal Kumar Gupta since 2002 till the evening of 28/05/2021, when the respondent No.2 tried to take over the possession. The house tax of the aforesaid property was being paid by P. P. Jewelers Pvt. Ltd. for the past 8 years until 2020. The respondent No.2 and Sh. Kamal Kumar Gupta have multiple litigations against each other due to various irreconcilable issues before NCLT and other forums. The revisionist is close relative of Mr. Kamal Kumar Gupta and reside together at undivided dwelling House No.C19, Gupta House, Rana Pratap Bagh, Delhi. Revisionist is also shareholder of P. P. Jewelers Pvt. Ltd. As informed to the revisionist on 28/05/2021, respondent No. 2 installed a camera on the exterior of the building and has appointed a guard to sit there. The said property was sought to be surveyed and Sh. Sunil Taneja along with 23 employees went to the property. Respondent No.2 threatened them with dire consequences and they were not permitted to enter the property. On the same, Sh. Sunil Taneja made a phone call to the police and on their arrival, the situation was informed to the police. However, the respondent CR No.79/2021 Page 4 of 29 Shobik Gupta Vs. State & Anr.
No.2 took advantage of his own wrongs and filed false and fabricated complaints to the police. An FIR dated 02/06/2021 u/s 448/506/34 IPC was registered at PS D.B.G. Road by respondent No.2 wherein it was alleged that the revisionist threatened the staff to forcibly enter the property, criminal trespass, breach of peace and causing damage to the property. A kalandra was filed against the revisionist and Sh. Sunil Taneja before the Ld. Special Executive Magistrate, Central District and the impugned Notice dated 21/06/2021 was issued to the revisionist. Being aggrieved, the revisionist has filed the present revision petition seeking quashing of the Notice and the kalandra u/s 107/150 Cr.P.C. against the revisionist. The revisionist has not filed any other petition/ application seeking similar relief before the Hon'ble Supreme Court of India or Hon'ble High Court or any other Court parallel to this Court.
3. The revisionist has challenged the impugned orders on the grounds, as mentioned in the present revision petition.
Grounds of revision The impugned orders are contrary to the law and impugned Notices have been issued by the Ld. Special Executive CR No.79/2021 Page 5 of 29 Shobik Gupta Vs. State & Anr.
Magistrate without application of mind. The opinion was formed by the Ld. Special Executive Magistrate without any material against the revisionist. The impugned order dated 18/06/2021 was passed against the provisions of Section 111 and 114 Cr.P.C. as the copy of the order u/s 111 Cr.P.C. was not accompanied with the impugned notice and the same was passed only on 30/06/2021. The entire case against the revisionist is motivated and the investigation was conducted in a biased and guided manner. Impugned orders are bad in the eyes of law as the Ld. Special Executive Magistrate failed to appreciate that the Kalandra itself was bad in the eyes of law as Kalandra could not have been registered in relation to acts for which an FIR dated 02/06/2021 u/s 448/506/34 IPC was already registered at PS D.B.G. Road.
4. This Court already heard the arguments on the point of maintainability of the present revision petition advanced by Ld. Counsel for the revisionist. Perused the material available on record.
During the course of arguments, it was submitted by Ld. Counsel for the revisionist that the impugned orders are not CR No.79/2021 Page 6 of 29 Shobik Gupta Vs. State & Anr.
interlocutory orders and the present revision petition against the impugned orders is maintainable and impugned orders are liable to be setaside on the grounds, as mentioned in the present revision petition.
The counsel for the revisionist in support of his contentions has relied upon number of case laws on the maintainability and merits of the present revision petition. The counsel for the revisionist in support of his contentions on the maintainability of the present revision petition has relied upon the following case laws:
(a) Radheyshyam & Ors. Vs. Govt. of NCT of Delhi, ( Crl. Rev No. 58629/16 passed by Ld. Special Judge (PC Act) CBI08, Central District, Delhi )
(b) Madhu Limaye Vs. State of Maharashtra, (AIR 1978 SC 47)
(c) Ankaputtaswamy & Ors. Vs. Papegowda & Ors, (1978 Crl.
LJ. 1233)
(d) Ahamed @ Mudassir Vs. The Special Executive Magistrate and Deputy Commissioner of Police & Ors. (2016 SCC Online Kar 1999)
(e) Pradip Kumar Saha & Anr. Vs. State of West Bengal, (2017 CR No.79/2021 Page 7 of 29 Shobik Gupta Vs. State & Anr.
SCC Online Cal 4769)
(f) Balkishan Shokeen Vs. State of Delhi and Ors. (1998 SCC Online Del 953)
5. By way of present revision petition, the revisionist has challenged the orders dated 18/06/2021 and 30/06/2021 passed by the Ld. Special Executive Magistrate. The impugned orders are reproduced as under: "18.06.2021 EO has appeared along with Kalandra before me. I heard the version of EO and I have also gone through the content of Kalandra. I find satisfied to initiate further because there is every chance of likelihood of apprehension of breach of peace. The Kalandra was admitted. Notices to be issued to the respondents attend this court on 30.06.2021 in person."
"30.06.2021 Fresh Kalandra produced in the court. Respondent Sunil Taneja present with counsel in the Court and Shobik Gupta is absent. Counsel submitted his exemption application same has been accepted and placed on file. Heard the respondent and find that there is every chance of likelihood of apprehension of breach of peace and there is sufficient ground to proceed further. Therefore notice U/s 111 Cr.P.C has been given along CR No.79/2021 Page 8 of 29 Shobik Gupta Vs. State & Anr.
with kalandra copies free of cost to counsel on behalf respondent Shobik Gupta and directed to come up on 09.08.21. Reply to be filed. Notice issued to Complainant and PW Rahul Gupta and Mahesh Kumar for said date."
6. For the sake of ready reference, section 397 Cr.P.C. is reproduced as under: Section 397: Calling for records to exercise powers of revision: (1) The High Court or any Sessions Judge may call for and examine the record of any proceeding before any inferior Criminal Court situate within its or his local jurisdiction for the purpose of satisfying itself or himself as to the correctness, legality or propriety of any finding, sentence or order, recorded or passed, and as to the regularity of any proceedings of such inferior Court, and may, when calling for such record, direct that the execution of any sentence or order be suspended, and if the accused is in confinement, that he be released on bail or on his own bond pending the examination of the record.
Explanation All Magistrates, whether Executive or Judicial, and whether exercising original or appellate jurisdiction, shall be deemed to be inferior to the Sessions Judge for the purposes of this subsection and of section 398.
(2) The powers of revision conferred by subsection (1) shall not be exercised in relation to any interlocutory order passed in any appeal, inquiry, trial or other proceeding.
(3) If an application under this section has been CR No.79/2021 Page 9 of 29 Shobik Gupta Vs. State & Anr.
made by any person either to the High Court or to the Sessions Judge, no further application by the same person shall be entertained by the other of them.
7. A plain reading of Section 397 Cr.P.C. makes it manifest that Section 397(1) Cr.P.C. enables the aggrieved parties to question the correctness, legality or propriety of any finding, sentence or order recorded or passed by the inferior court before the revisional court i.e. the High court or the Sessions Judge as concurrent jurisdiction is conferred on the High Court and the Sessions Judge by the Section.
Now, it is significant to note that Section 397 (2) Cr.P.C. mandates that the power of revision conferred by subsection (1) of Section 397 Cr.P.C. shall not be exercised in relation to any interlocutory order in any appeal, enquiry, trial or other proceeding. Therefore, express bar is created by the legislation under section 397 (2) Cr.P.C. to entertain revision against an interlocutory order.
The term "interlocutory order" as mentioned in section 397 (2) Cr.P.C. denotes orders of a purely interim or temporary nature which do not decide or touch the important rights or liabilities of the parties. An order which is pure and simple interlocutory order, which do not decide anything finally is to be considered as interlocutory order CR No.79/2021 Page 10 of 29 Shobik Gupta Vs. State & Anr.
and no revision against that interlocutory order is maintainable under section 397(1) Cr.P.C. in view of the express bar imposed under section 397(2) Cr.P.C.
There are three categories of orders that a court can pass final, intermediate and interlocutory. There is no doubt that in respect of a final order, a court can exercise its revision jurisdiction that is in respect of a final order of acquittal or conviction. There is equally no doubt that in respect of an interlocutory order, the court cannot exercise its revision jurisdiction. As far as an intermediate order is concerned, the court can exercise its revision jurisdiction since it is not an interlocutory order. An intermediate order is one which is interlocutory order in nature but when reversed, it has the effect of terminating the proceedings and thereby resulting in a final order.
8. It was held by Hon'ble Supreme Court of India in case titled as " Amar Nath & Ors. Vs. State of Haryana & Anr.", {(1977) 4 SCC 137} that: "The main question which falls for determination in this appeal is as to what is the connotation of the term "interlocutory order" as appearing in subsection (2) of CR No.79/2021 Page 11 of 29 Shobik Gupta Vs. State & Anr.
Section 397 which bars any revision of such an order by the High Court. The term "interlocutory order" is a term of wellknown legal significance and does not present any serious difficulty. It has been used in various statutes including the Code of Civil Procedure, Letters Patent of the High Courts and other like statutes. In Webster's New World Dictionary "interlocutory" has been defined as an order other than final decision. Decided cases have laid down that interlocutory orders to be appealable must be those which decide the rights and liabilities of the parties concerning a particular aspect. It seems to us that the term "interlocutory order" in Section 397(2) of the 1973 Code has been used in a restricted sense and not in any broad or artistic sense. It merely denotes orders of a purely interim or temporary nature which do not decide or touch the important rights or the liabilities of the parties. Any order which substantially affects the right of the accused, or decides certain rights of the parties cannot be said to be an interlocutory order so as to bar a revision to the High Court against that order, because that would be against the very object which formed the basis for insertion of this particular provision in Section 397 of the 1973 Code. Thus, for instance, orders summoning witnesses, adjourning cases, passing orders for bail, calling for reports and such other steps in aid of the CR No.79/2021 Page 12 of 29 Shobik Gupta Vs. State & Anr.
pending proceeding, may no doubt amount to interlocutory orders against which no revision would lie under Section 397 (2) of the 1973 Code. But orders which are matters of moment and which affect or adjudicate the rights of the accused or a particular aspect of the trial cannot be said to be interlocutory order so as to be outside the purview of the revisional jurisdiction of the High Court".
It was also held by Hon'ble Supreme Court of India in case titled as " V.C. Shukla Vs. State through C.B.I", (AIR 1980 SC 962] that: (1) that an order which does not determine the rights of the parties but only one aspect of the suit or the trial is an interlocutory order;
(2) that the concept of interlocutory order has to be explained, in contradistinction to a final order. In other words, if an order is not a final order, it would be an interlocutory order;
(3) that one of the tests generally accepted by the English Courts and the Federal Court is to see if the order is decided in one way, it may terminate the proceedings but if decided in another way, then the proceedings would continue; because, in our opinion, the term 'interlocutory order' in the Criminal Procedure Code has been used in a much wider sense so as to include even intermediate or quasi final orders;
(4) that an order passed by the Special Court CR No.79/2021 Page 13 of 29 Shobik Gupta Vs. State & Anr.
discharging the accused would undoubtedly be a final order inasmuch as it finally decides the rights of the parties and puts an end to the controversy and thereby terminates the entire proceedings before the court so that nothing is left to be done by the court thereafter;
(5) that even if the Act does not permit an appeal against an interlocutory order the accused is not left without any remedy because in suitable cases, the accused can always move this Court in its jurisdiction under Art. 136 of the Constitution even against an order framing charges against the accused. Thus, it cannot be said that by not allowing an appeal against an order framing charges, the Act works serious injustice to the accused.
It was also held by Hon'ble Supreme Court of India in case titled as "Poonam Chand Jain and Anr. Vs. Fazru", {(2004) 13 SCC 269} that: "Wharton's Law Lexicon (14th Edn. p. 529) defines interlocutory order thus:
"An interlocutory order or judgment is one made or given during the progress of an action, but which does not finally dispose of the rights of the parties."
Thus, summing up the natural and logical meaning of an interlocutory order, the conclusion is inescapable that an order which does not terminate the proceedings or finally decides the rights of the parties is only an interlocutory order. In other words, in ordinary sense of the term, an CR No.79/2021 Page 14 of 29 Shobik Gupta Vs. State & Anr.
interlocutory order is one which only decides a particular aspect or a particular issue or a particular matter in a proceeding, suit or trial but which does not however conclude the trial at all."
The principles/guidelines regarding the scope of criminal revision petition have also been laiddown by Hon'ble Supreme Court of India in case titled as "Girish Kumar Suneja Vs. Central Bureau of Investigation", {(2017) 14 SCC 809} and it was held that, "15. While the text of subsection (1) of Section 397 Cr.P.C. appears to confer very wide powers on the court in the exercise of its revision jurisdiction, this power is equally severely curtailed by subsection (2) thereof. There is a complete prohibition on a court exercising its revision jurisdiction in respect of interlocutory orders. Therefore, what is the nature of orders in respect of which a court can exercise its revision jurisdiction?
16. There are three categories of orders that a court can pass final, intermediate and interlocutory. There is no doubt that in respect of a final order, a court can exercise its revision jurisdiction - that is in respect of a final order of acquittal or conviction. There is equally no doubt that in respect of an interlocutory order, the court cannot exercise its revision jurisdiction. As far as an intermediate order is CR No.79/2021 Page 15 of 29 Shobik Gupta Vs. State & Anr.
concerned, the court can exercise its revision jurisdiction since it is not an interlocutory order.
21. The concept of an intermediate order was further elucidated in Madhu Limaye Vs. State of Maharashtra by contradistinguishing a final order and an interlocutory order. This decision lays down the principle that an intermediate order is one which is interlocutory in nature but when reversed, it has the effect of terminating the proceedings and thereby resulting in a final order. Two such intermediate orders immediately come to mind an order taking cognizance of an offence and summoning an accused and an order for framing charges. Prima facie these orders are interlocutory in nature, but when an order taking cognizance and summoning an accused is reversed, it has the effect of terminating the proceedings against that person resulting in a final order in his or her favour. Similarly, an order for framing of charges if reversed has the effect of discharging the accused person and resulting in a final order in his or her favour. Therefore, an intermediate order is one which if passed in a certain way, the proceedings would terminate but if passed in another way, the proceeding would continue.
22. The view expressed in Amar Nath and Madhu Limaye was followed in K.K. Patel V. State of Gujarat wherein a revision petition was filed challenging the CR No.79/2021 Page 16 of 29 Shobik Gupta Vs. State & Anr.
taking of cognizance and issuance of a process. It was said: (K.K.Patel case, SCC p.201, para11) "11. ..... It is now wellnigh settled that in deciding whether an order challenged is interlocutory or not as for Section 397 (2) of the Code, the sole test is not whether such order was passed during the interim stage (vide Amar Nath v. State of Haryana, Madhu Limaye v. State of Maharastra, V.C. Shukla v. State and Rajendra Kumar Sitaram Pande v.
Uttam). The feasible test is whether by upholding the objections raised by a party, it would result in culminating the proceedings, if so any order passed on such objections would not be merely interlocutory in nature as envisaged in Section 397(2) of the Code. In the present case, if the objection raised by the appellants were upheld by the Court the entire prosecution proceedings would have been terminated. Hence, as per the said standard, the order was revisable."
27. Our conclusion on this subject is that while the appellants might have an entitlement (not a right) to file a revision petition in the High Court but that entitlement can be taken away and in any event, the High Court is under CR No.79/2021 Page 17 of 29 Shobik Gupta Vs. State & Anr.
no obligation to entertain a revision petition - such a petition can be rejected at the threshold. If the High Court is inclined to accept the revision petition it can do so only against a final order or an intermediate order, namely, an order which if set aside would result in the culmination of the proceedings. As we see it, there appear to be only two such eventualities of a revisable order and in any case only one such eventuality is before us. Consequently the result of para 10 of the order passed by this Court is that the entitlement of the appellants to file a revision petition in the High Court is taken away and thereby the High Court is deprived of exercising the extraordinary discretionary power available under Section 397 Cr.P.C."
It was held by Hon'ble High Court of Delhi in case titled as " Neelam Mahajan and Anr. Vs. The State & Ors.", {(2016) 229 DLT (CN) 29} that: "........ In this regard catena of judgments of Hon'ble Supreme Court of India has settled the legal principle while holding that the meaning of the two words "final" and "interlocutory" has to be considered separately in relation to the particular purpose for which it is required. However, generally speaking, a judgment or order which CR No.79/2021 Page 18 of 29 Shobik Gupta Vs. State & Anr.
determines the principal matter in question is termed final and simultaneously, an interlocutory order, though not conclusive of the main dispute may be conclusive as to the subordinate matter with which it deals. Therefore, in the considered opinion of this Court, if the decision on an issue puts an end to the suit, the order is undoubtedly a final one but if the suit is still left alive and has yet to be tried in the ordinary way, no finality could be attached to the order."
9. By way of present revision petition, the revisionist has challenged the impugned orders dated 18/06/201 and 30/06/2021 passed by the Ld. Special Executive Magistrate thereby notice/ show cause notice u/s 111 Cr.P.C. were issued to the revisionist.
Now this Court has to see as to whether the impugned orders are interlocutory, intermediate or final order.
The provision of section 107 Cr.P.C. has been explained by the Hon'ble Supreme Court of India in case titled as " Ram Narain Singh & Ors. Vs. State of Bihar ", {AIR 1972 SC 2225 } and it was held that: "Under section 107 of the Code of Criminal Procedure, a CR No.79/2021 Page 19 of 29 Shobik Gupta Vs. State & Anr.
Presidency Magistrate, District Magistrate, Subdivisional Magistrate or Magistrate of the first class may require a person to show cause why he should not be ordered to execute a bond, with or without sureties, for keeping the peace for a period not exceeding one year as the Magistrate thinks fit to fix, if such Magistrate is informed that the said person is likely to commit breach, of peace or disturb public tranquillity or to do any wrongful act that may occasion breach of peace, or disturb public tranquillity and if the Magistrate, is further of the opinion that there is sufficient ground for proceeding against that person. The underlying object of the section is preventive and not penal. The section is designed to enable the Magistrate to take measures with a view to prevent commission of offences involving breach of peace or disturbance of public transquillity. Wide powers have been conferred on the Magistrates specified in this section and as the matter affects the, liberty of the subject who has not been found guilty of an offence, it is essential that the power should be exercised strictly in accordance with law."
It was held by Hon'ble High Court of Delhi in case titled as "Sanjeev Kapur Vs. State (NCT of Delhi)", { Crl. M.C. No.2265 of CR No.79/2021 Page 20 of 29 Shobik Gupta Vs. State & Anr.
2010 & Crl. M.A. No.8803 of 2010, Date of decision 26/07/2010} that: "In this case, the petitioner was served upon a notice under Section 107/111 Cr.P.C. by Special Executive Magistrate asking him to attend the SEM's Court and to show cause as to why he should not be ordered to execute a surety bond and a personal bond. Whenever a show cause notice is issued, a person is given opportunity to reply to show cause notice and to put up his case as to why it was not necessary to call him to SEM's court and why it was not necessary for him to execute a bond of keeping peace. Show cause notice is a purely interlocutory order and I consider that the learned Additional Sessions Judge rightly dismissed the revision."
It was held by Hon'ble Allahabad High Court in case titled as "Bindbasni & Ors. Vs. State of UP ", {1976 Crl. LJ 660 (All) (DB) } that: "To sum up the propositions laid down by the above authorities, the test in determining the final or interlocutory nature of an order is one and the same both in civil as well CR No.79/2021 Page 21 of 29 Shobik Gupta Vs. State & Anr.
as criminal cases. That test is whether or not the order in question finally disposes of the rights of the parties or leaves them to be determined by the Court in the ordinary way. If the order does not finally dispose of the rights of the parties and the matters in dispute and leaves the suit or case still alive suit in which the rights of the parties have to be determined, the order will remain interlocutory irrespective of the stage at which it is passed and also irrespective of the conclusive decision of the subordinate matters with which I deals. Applying this test to an order passed by a Magistrate under Sections 107/ 111, Cr. P.C. that order is nothing but interlocutory because it is passed when the Magistrate is of opinion that the information received by him to the effect that any person was likely to commit breach of peace or to disturb public tranquillity etc. was credible. Acting upon that information the Magistrate simply calls upon the person concerned to show cause why he should not be bound down in the prescribed manner. Neither right of the parties are decided at that stage nor the matter in dispute is finally disposed of. That order is simply procedural in nature. It only gives a notice to the party concerned that there is such and such allegation against him and he should turn up before the Magistrate to clarify his position. Even the correctness of the information received by the Magistrate is not finally CR No.79/2021 Page 22 of 29 Shobik Gupta Vs. State & Anr.
decided at that stage nor it is decided whether or not the party concerned should be bound down. Those points are to be decided when the case reaches the stage of Section 116, Cr. P.C........"
It was held by Hon'ble Orissa High Court in case titled as "Babaji Sahoo & Ors. Vs. State of Orissa ", {1989 Crl. LJ 1872 (Ori) } that: "Examining the facts of the present case in the light of the discussions in the foregoing paragraphs, it is clear that the proceeding was initiated by the learned Magistrate on getting the report from the Officerincharge of Kakatpur Police Station, The notice clearly specifies the nature of the allegations which are required to be met by the delinquents, the amount for which the bond was to be executed by them, the number of sureties and the period of the bond. As such, the notice contained all relevant particulars and it cannot be said to be a vague and indefinite one to which delinquents would have difficulty in filing their show cause. Further, from the prosecution report submitted by the Officerincharge of the Police Station which is available in the lower court record it appears that the report is a fairly detailed one giving particular instances of overt acts, the controversy between the parties which led the police officer to believe that there CR No.79/2021 Page 23 of 29 Shobik Gupta Vs. State & Anr.
is likelihood of breach of the peace. The dispute, as it appears from the report and also the notice is over possession of some Govt. land. On perusal of this report the learned Magistrate felt satisfied that there was apprehension of breach of the peace and action was necessary to be taken against the delinquents under Section 107 of the Code. There is nothing in the record and the learned Counsel for the petitioners has not been able to point out any circumstance in particular to suggest that the order of the learned Magistrate initiating the proceeding was passed mechanically without application of his mind. From the very nature of the informations and the details given in the police report if he had no doubt about its credibility and felt that the material was sufficient to initiate proceeding and issue process to the delinquents, in my view, he committed no serious illegality or irregularity and it cannot be said that continuing the proceeding will be an abuse of the process of court. Further, as discussed earlier, the petitioners have only been noticed to appear and file their show cause before the learned Magistrate. The order is therefore a purely interlocutory one and does not seriously prejudice the petitioners. Therefore no interference with the proceeding at this stage in exercise of the inherent jurisdiction of this Court is called for."
CR No.79/2021 Page 24 of 2910. Now this Court shall examine the case laws as referred by counsel for the revisionist on the point of maintainability of the present revision petition: Radheyshyam & Ors. Vs. Govt. of NCT of Delhi, (Crl. Rev No. 58629/16 passed by Ld. Special Judge(PC Act) CBI08, Central District, Delhi ) The aforesaid case law is not binding upon this Court as the same has been passed by the Court of concurrent jurisdiction.
Madhu Limaye Vs. State of Maharashtra, (AIR 1978 SC 47) In the aforesaid case law, there is nothing that revision petition is maintainable against the issuance of notice/ show cause notice u/s 107/111 Cr.P.C.
f Ankaputtaswamy & Ors. Vs. Papegowda & Ors, (1978 Crl. LJ. 1233) In the aforesaid case law, it was held that issuance CR No.79/2021 Page 25 of 29 Shobik Gupta Vs. State & Anr.
of show cause notice as to why the petitioner should not be ordered to execute bond for keeping peace, good behaviour, etc. is not an interlocutory order. On the other hand, it was held by Hon'ble Delhi High Court in Sanjeev Kapur case (supra) that notice/ show cause notice u/s 107/111 Cr.P.C. is purely interlocutory order and revision petition is not maintainable. This Court being subordinate to the Hon'ble Delhi High Court is bound by the law laid down in Sanjeev Kapur case.
Ahamed @ Mudassir Vs. The Special Executive Magistrate and Deputy Commissioner of Police & Ors. (2016 SCC Online Kar 1999) In the aforesaid case law, the order of externment was challenged. Hence, the aforesaid case law is not applicable to the facts and circumstances of the present case.
Pradip Kumar Saha & Anr. Vs. State of West Bengal, (2017 SCC Online Cal 4769) In the aforesaid case law, there is nothing that revision petition is maintainable against the CR No.79/2021 Page 26 of 29 Shobik Gupta Vs. State & Anr.
issuance of notice/ show cause notice u/s 107/111 Cr.P.C.
Balkishan Shokeen Vs. State of Delhi and Ors.
(1998 SCC Online Del 953) In the aforesaid case law, there is nothing that revision petition is maintainable against the issuance of notice/ show cause notice u/s 107/111 Cr.P.C.
11. It is well settled law that scope of revisional jurisdiction is very limited and same cannot be exercised in a routine manner. It is also well settled law that question/ issue of maintainability of the criminal revision can be examined by the Court at any stage.
There is a clear distinction between issuing process to the delinquents asking them to execute interim bond during pendency of the proceedings u/s 107 Cr.P.C. and a notice requiring them to show cause why they would not be asked to execute interim bond. In the latter case no right of the party is decided. The delinquent has the CR No.79/2021 Page 27 of 29 Shobik Gupta Vs. State & Anr.
opportunity to file his reply to the notice and can persuade the Magistrate to drop the proposal to require him to furnish interim bond.
In the former case, the Magistrate has already made up his mind to require the delinquent to furnish bond.
In view of the law laid down in Sanjeev Kapur, Bindbasni and Babaji Sahoo cases (Supra), it is clear that the order of issuance of notice/show cause notice u/s 107/111 Cr.P.C. is an interlocutory order.
On perusal of impugned orders, it is clear that same are neither final nor intermediate but the same are purely interlocutory orders. The impugned orders cannot said to be a final or intermediate order in any manner. If the impugned orders are set aside, than there would be no culmination of the proceedings.
12. Applying priori and posteriori reasonings and law laid down in Amar Nath, V.C. Shukla, Poonam Chand Jain, Girish Kumar Suneja, Neelam Mahajan, Sanjeev Kapur, Bindbasni and Babaji Sahoo cases (supra), this Court is held that the impugned orders passed by the Ld. Trial Court are purely interlocutory orders and being interlocutory CR No.79/2021 Page 28 of 29 Shobik Gupta Vs. State & Anr.
orders, the impugned orders are not amenable to the revisional jurisdiction of this Court. Accordingly, the present revision petition of the revisionist is dismissed, being not maintainable. No order as to costs. Nothing stated herein shall tantamount to be an expression of opinion on the merits of the case.
Trial Court Record be sent back alongwith the copy of this judgment. Revision file be consigned to record room after due compliance.
Digitally signed by VIJAY SHANKAR VIJAY Date:
SHANKAR 2021.12.20
Announced in the open Court 18:11:41
+0530
on 20/12/2021
(VIJAY SHANKAR)
ASJ05 (Central)
Tis Hazari Courts, Delhi
CR No.79/2021 Page 29 of 29