Delhi District Court
Sh. Radheyshyam vs Govt. Of Nct Of Delhi on 4 February, 2017
IN THE COURT OF SH. M.K. NAGPAL, SPECIAL JUDGE
(P.C. ACT), CBI08, CENTRAL DISTRICT
TIS HAZARI COURTS, DELHI
1. Sh. Radheyshyam
S/o Sh. Kanhaiya Lal
2. Sh. Vishnu
S/o Sh. Kanhaiya Lal
3. Sh. Prabhudayal
S/o Kanhaiya Lal
4. Sh. Kamal @ Bunty
S/o Late Sh. Heera Lal
All R/o H. No. 2068, Mukim Pura
Subzi Mandi, Delhi ........... Revisionists/Petitioners
Versus
1. Govt. of NCT of Delhi, Through SHO
P.S. Subzi Mandi, Delhi
2. Smt. Neelam
W/o Sh. Dhani Ram
R/o H. No. 1989, Gali Kumharo Wali
Malka Ganj, Delhi110007
3. Special Executive Magistrate
North District, P. S. Sarai Rohill
Delhi ........... Respondents
Crl. Rev No. : 58629/16
CNR No. : DLCT010172762016
Date of institution : 05.12.2016
Date of reserving order : 28.01.2017
Date of pronouncement : 04.02.2017
Crl. Rev No. 58629/16, Radheyshyam & Ors. Vs. Govt. of NCT of Delhi & Ors. Page No. 1 of 22
O R D E R
This revision petition is directed against the order dated 19.10.2016 passed U/s 107/111 Cr.P.C. in DD No. 6B dated 11.10.2016 of PS Subzi Mandi by the Ld Spl. Executive Magistrate (SEM), North District, Delhi, vide which the petitioners have been directed to be served with a notice to appear before the Ld SEM on 17.11.2016 and to show cause as to why they should not be ordered to execute personal bonds in the sum of Rs. 35,000/ each with one surety in the like amount each for keeping peace for a period of one year. The above order has been passed and the consequent notices issued purportedly on the basis of some reliable information and report received from SI Ranjit Singh, through the SHO of the above PS.
2. I have heard and considered the arguments advanced by Sh. Aman Gaurav and Sh. Umesh Goel, Ld counsels appearing for the petitioners, Sh. Himanshu Garg, Ld PP for the State/respondents no. 1 and 3 and Sh. Manoj Sharma, Ld counsel representing the respondent no. 2. The entire records of the present petition as well as of the trial court have also been perused.
3. The factual background leading to the filing of the present revision petition is that the petitioners are brothersin law (devars) in relation to respondent no. 2 and the relations Crl. Rev No. 58629/16, Radheyshyam & Ors. Vs. Govt. of NCT of Delhi & Ors. Page No. 2 of 22 between them are stated to be not cordial since long and they are stated to be residing separately from the respondent no. 2 and some civil dispute is also stated to be pending between them. One daughter of the respondent no. 2 is also stated to be residing alongwith the petitioners and as per the allegations made by the respondent no. 2, the petitioners used to beat her daughter and also quarreled with the petitioner on every other day and further extended threats to her.
4. It is alleged that on 02.10.2016, the respondent no. 2 had approached the local police with one written complaint against the petitioners and it resulted into the registration of one DD No. 29B and the same was assigned for enquiry to the above SI Ranjit Singh. The above SI/IO had made some enquiries from the complainant/respondent no. 2, as well as her above daughter namely Priyanka and the petitioners herein, regarding the allegations contained in the said complaint and since he came to conclusion that the parties frequently used to quarrel with each other and also used to make false allegations and complaints and extended threats to each other and further since there were apprehensions of quarrel resulting into the breach of peace and public tranquility or the commission of some cognizable offences by the parties, he recommended the initiation of proceedings U/s 107/150 Cr.P.C. against both the parties, which was approved by the SHO concerned, and it resulted into the preparation of two separate kalandras dated 11.10.2016 under the above Sections against both these parties Crl. Rev No. 58629/16, Radheyshyam & Ors. Vs. Govt. of NCT of Delhi & Ors. Page No. 3 of 22 vide DD No. 6B of the PS. Both the above kalandras were subsequently put before the Ld SEM concerned and on its basis, the Ld SEM had passed the impugned order dated 19.10.2016 and also issued the impugned notices of even date calling upon the petitioners herein to show cause as to why they should not furnish the above bonds. It is necessary to mention here, as also stated above, that vide the same order a similar notice has also been issued to the respondent no. 2 herein, though she had not challenged the same.
5. The main contention of Ld counsels for the petitioners is that the impugned order and notices dated 19.10.2016 issued U/s 107/111 Cr.P.C. by the Ld SEM to the petitioners are not legally tenable as the order had been passed and the notices had been issued without complying with the mandatory requirements of these Sections because the Ld SEM had not held any enquiry into the matter before passing the impugned order and issuing the impugned notices. It is argued that this order of the Ld SEM is not only against the instructions contained in their own Standing Order No. 189/2008 issued by the Commissioner of Police, Delhi, but the same is also against the principles laid down in various judgments of the Hon'ble Supreme Court as well as of the different High Courts. It has further been argued that the impugned order and notices of the Ld SEM are based on false, fabricated and concocted allegations made in the above complaint filed by the respondent no. 2 and the kalandras filed by the local police on its basis. In Crl. Rev No. 58629/16, Radheyshyam & Ors. Vs. Govt. of NCT of Delhi & Ors. Page No. 4 of 22 support of their case, Ld counsels for the petitioners has also relied upon the judgments in cases Ram Lal & Ors. The State of Rajasthan Indiankanoon.org/doc/653676, Trijugi Narain Shukla Vs. State of U. P. & Anr. 1975 OnLine All 218, Jagdish Chander Bhatia Vs. State 1983 (2) Crimes 256, Patit Paban Ghosh & Anr. Vs. Mrityunjoy Sen 1991 SCC OnLine Cal 269, Mr. Naresh Kumar Jain & Anr. Vs. State of U.P. & Ors. 1993 Indiankanoon.org/doc/478575, Asha Pant Vs. State & Ors. Crl. M. C. 2077/2006 & Crl. M. 3333/2006 (stay) decided on 17.03.2008 and Moinuddin Vs. State & Ors. W. P. (C) 6046/2008 decided on 27.10.2009 by the Hon'ble High Court of Delhi and G. G. Ravi Vs. The State Crl. RC. Nos. 339 of 2013 and M.P. No. 1 of 2013 Indiankanoon.org/doc/ 187607829.
6. Ld counsel for respondent no. 2 has also opposed this revision petition on similar grounds and has further submitted that the petitioners have rightly been asked by the Ld SEM to furnish the above bonds as keeping in view the allegations made against them and their above conduct, there was always an apprehension of breach of peace or commission of some offences by them against the person or property of the respondent no. 2.
7. On the contrary, the objections raised by Ld PP for the State to this revision petition are twofold and the first Crl. Rev No. 58629/16, Radheyshyam & Ors. Vs. Govt. of NCT of Delhi & Ors. Page No. 5 of 22 objection of Ld PP is that the impugned order of the Ld SEM is only an interlocutory order and hence, the present revision petition is not legally maintainable and his other objection is that the impugned order clearly shows that the Ld SEM had conducted an enquiry into the matter before issuing the impugned notices and calling upon the parties to furnish the above bonds as the order reflects that he had gone through the contents of the above kalandras as well as the statements recorded by the above IO in the above DD No. 6B before passing the impugned order. It is thus his contention that the impugned order of the Ld SEM as well as the impugned notices are perfectly legal and are not required to be interfered with. In support of his contention that the impugned order is only an interlocutory order, he has also relied upon a judgment of the Hon'ble Delhi High Court in case Sanjeev Kapur & Ors. Vs. State (NCT of Delhi) 2010 Law Suit (Del) 3109.
8. First coming to maintainability of the present revision petition on the ground of impugned order being an interlocutory order, it is observed that in case of Sanjeev Kapur, Supra being relied upon by Ld PP for the State, it was held by a Single Bench of the Hon'ble High Court of Delhi that such an order of the SEM's court, and also such a notice U/s 107/111 Cr.P.C. issued in terms thereof and calling upon a person to show cause as why he should not be ordered to execute such bonds, is purely an interlocutory order and hence, the Ld ASJ was justified in dismissing the revision petition filed against the Crl. Rev No. 58629/16, Radheyshyam & Ors. Vs. Govt. of NCT of Delhi & Ors. Page No. 6 of 22 said order. Though, subsection (2) of Section 397 Cr.P.C. provides that the powers of revision conferred by subsection (1) of the said Section shall not be exercisable in relation to any interlocutory order passed in any appeal, enquiry, trial or other proceedings, but this term 'interlocutory order' has not been defined in the Code. Hence, this term is required to be understood in the context in which it is used and also keeping in view the broader scheme of the Code. It has to be essentially distinguished from a final order or an interim order as an appeal and revision respectfully lies against such orders and it is only an interlocutory order against which no judicial remedy has been provided to a party. Though, initially an interlocutory order was interpreted to be just a converse or opposite of a final order, but subsequently it was held that the above was not a correct view because even a revisable order will be converse to a final order and if the interpretation that anything converse to a final order was an interlocutory order is adopted, then it will just nullify the provisions contained in Section 397 Cr.P.C. relating to the exercise of revisional powers by a High Court and a Court of Sessions.
9. The term interlocutory order has been the subject matter of interpretation in various pronouncements of the Hon'ble Supreme Court as well as of the Hon'ble High Courts and the crux of such judicial decisions is that this term has been used in the Code in a very restricted sense and it denotes that the nature of the said order is purely interim or of temporary Crl. Rev No. 58629/16, Radheyshyam & Ors. Vs. Govt. of NCT of Delhi & Ors. Page No. 7 of 22 nature and it does not decide or touch upon the important rights or liabilities of the parties. It has been held that, however, if any order substantially effects the rights of an accused then it cannot be considered to be an interlocutory order. Further, it has also been held that if the plea being raised by the accused against any such order is accepted and it has the effect of terminating the prosecution or proceedings, then such an order cannot be an interlocutory order. In different judicial pronouncements, it has been held that the order of a Magistrate directing the issuance of process to an accused was not a pure interlocutory order and it was observed that revisional jurisdiction may be exercised against the same. Similarly, the orders of a Magistrate directing discharge of an accused on the basis of a police report and orders directing temporary custody of property have also been held to be not interlocutory orders, whereas orders directing the summoning of a witness or granting bail etc to an accused have been held to be interlocutory orders.
10. In case of Amarnath Vs. State of Haryana AIR 1977 SC 2185, a Division Bench of the Hon'ble Supreme Court had an occasion to consider the meaning and effect of the term interlocutory order in a case where the question involved before the Hon'ble High Court was as to whether in a criminal case, the accused has a right to challenge in revision U/s 397 Cr.P.C. an order of the trial court issuing summons to him as accused and their lordships had made the following observations: Crl. Rev No. 58629/16, Radheyshyam & Ors. Vs. Govt. of NCT of Delhi & Ors. Page No. 8 of 22 "It seems to us that the term 'interlocutory order' in S.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 rights 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 S.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 pending proceedings, may no doubt amount to interlocutory orders against which no revision would lie under S.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."
11. Again, a Full Bench of the Hon'ble Supreme Court in case Madhu Limaye Vs. State of Maharashtra AIR 1978 SC 47 had again considered, interalia, the scope of provisions of subsection (2) of Section 397 Cr.P.C. dealing with the above term interlocutory order and their lordships made the following observations: "Ordinarily and generally the expression 'interlocutory order' has been understood and taken to mean as a converse of the term 'final order'. But an interpretation and the universal application of the principle that what is not a final order must be an interlocutory order is neither warranted nor justified. If it Crl. Rev No. 58629/16, Radheyshyam & Ors. Vs. Govt. of NCT of Delhi & Ors. Page No. 9 of 22 were so it will render almost nugatory the revisional power of the Sessions Court or the High Court conferred on it by S. 397(1). On such a strict interpretation, only those orders would be revisable which are orders passed on the final determination of the action but are not appelable under Chap. XXIX of the Code. This does not seem to be the intention of the Legislature when it retained the revisional power of the High Court in terms identical to the one in the 1898 Code.
Although the words occurring in a particular statute are plain and unambiguous, they have to be interpreted in a manner which would fit in the context of the other provisions of the statute and bring about the real intention of the legislature. On the one hand, the legislature kept intact the revisional power of the High Court and on the other, it put a bar on the exercise of that power in relation to any interlocutory order. In such a situation it appears that the real intention of the legislature was not to equate the expression 'interlocutory order' as invariably being converse of the words 'final order'...................The impugned order in the instant case rejecting the application challenging the jurisdiction of the Court to proceed with trial, even though it may not be final in one sense, is surely not interlocutory so as to attract the bar of subs.(2) of S. 397. It must be taken to be an order of the type falling in the middle course........................An order rejecting the plea of the accused on a point which, when accepted, will conclude the particular proceeding, will surely be not an interlocutory order within the meaning of S.397 (2)."
12. A Full Bench of the Hon'ble Karnataka High Court in case Ankaputtaswamy & Ors. Vs. Papegowda & Ors. 1978 Cri. L.J. 1233 also came to consider the scope of the above term while dealing with a similar order directing issuance of a Crl. Rev No. 58629/16, Radheyshyam & Ors. Vs. Govt. of NCT of Delhi & Ors. Page No. 10 of 22 notice U/s 107/111 Cr.P.C. and while referring to the aforesaid propositions of law laid down by the Hon'ble Supreme Court in cases Amarnath and Madhu Limaye, Supra, their lordships came to a conclusion that such an order of an Executive Magistrate directing issuance of a notice requiring the petitioners to show cause as to why they should not be ordered to execute bonds for keeping peace and good behaviour etc was not merely an interlocutory order within the meaning of Section 397(2) of the Code. Even in cases Ram Lal & Ors., Trijugi Narain Shukla, and Naresh Kumar Jain & Anr., Supra being relied upon by Ld counsels for the petitioners, the similar orders issued by the Executive Magistrates concerned were held to be not interlocutory, but revisable orders. Further, even in case of G. G. Ravi, Supra being relied upon on behalf of petitioners, the Hon'ble High Court of Madras, while referring to the law laid down by the Hon'ble Supreme Court in case State rep. by Inspector of Police & Ors. Vs. N.M.T. Joy Immaculate, came to made the following observations: "6. Yet another circumstances putforth by the respondent is that the revision is not maintainable in an interlocutory order, since the petitioner challenged the proceedings u/s 107 Cr.P.C is an interlocutory order. In this context, a Full Bench decision of the Honourable Supreme Court has to be followed. In 2004 SCC (Crl.) 1722 [State rep. by Inspector of Police and others v. N.M.T. Joy Immaculate] after referring various judgments Their Lordships have held that if the objections raised by the accused were upheld the entire prosecution proceedings would have been terminated, the order was not interlocutory order Crl. Rev No. 58629/16, Radheyshyam & Ors. Vs. Govt. of NCT of Delhi & Ors. Page No. 11 of 22 and consequently it was revisable. The operative portion of the judgment is as follows:
'12. Same question has recently been considered in K.K. Patel v. State of Gujarat [(2000) 6 SCC 195 2001 SCC (Cri.) 200. In this case a criminal complaint was filed against the Superintendent of Police and Deputy Superintendent of Police alleging commission of several offences under the Indian Penal Code and also under Section 147G of the Bombay Police Act. The Metropolitan Magistrate took cognizance of the offence and issued process to the accused, who on appearance filed a petition for discharge on the ground that no sanction as contemplated by Section 197 CrPC had been obtained. The Metropolitan Magistrate dismissed the petition against which a revision was filed before the Sessions Judge, who allowed the same on the objection raised by the accused based upon Section 197 CrPC and also Section 161(1) of the Bombay Police Act, which creates a bar of limitation of one year. The revision preferred by the complainant against the order of discharge was allowed by the High Court on the ground that the order passed by the Metropolitan Magistrate rejecting the prayer of the accused to discharge them was an interlocutory order. In the appeal preferred by the accused, this Court after referring to Amar Nath v. State of Haryana [(1977) r SCC 137 : 1977 SCC (Cri) 585], Madhu Limaye v. State of Maharashtra [(1977) 4 SCC 551 : 1978 SCC (Cri) 10 : AIR 1978 SC 47] and V.C. Shukla v. State [1980 Supp SCC 92 : 1980 SCC (Cri) 695 : AIR 1980 SC 962] held that in deciding whether an order challenged is interlocutory order or not, as for Section 397(2) of the Code, the sole test is not whether such order was passed during the interim stage. The feasible test is whether by upholding the objections raised by a party, it would result in Crl. Rev No. 58629/16, Radheyshyam & Ors. Vs. Govt. of NCT of Delhi & Ors. Page No. 12 of 22 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. It was further held that as in the facts of the case, if the objections raised by the accused were upheld, the entire prosecution proceedings would have been terminated, the order was not an interlocutory order and consequently it was revisable.'
7. In this case also the objections raised by the petitioner are being accepted by this Court and hence the issuance of summons by the 2nd respondent is not an interlocutory proceedings. Therefore, the revision is well maintainable."
13. Therefore, since such an order of a Magistrate touches upon the important constitutional rights and liberty of an individual calling upon him to appear and to furnish such bonds of peace etc, or to show cause as to why these should not be furnished, hence, in view of the legal propositions discussed above, the impugned order dated 19.10.2016 of the Ld SEM cannot be considered to be an interlocutory order in terms of the provisions contained in subsection (2) of Section 397 Cr.P.C. and hence, the present revision petition filed against the said order is held to be maintainable.
14. Again, there are other reasons also for holding the above order to be not an interlocutory order as from time to time, various guidelines have also been laid down by the Hon'ble Supreme Court as well as by the other High Courts as to the manner in which the proceedings in such matters relating Crl. Rev No. 58629/16, Radheyshyam & Ors. Vs. Govt. of NCT of Delhi & Ors. Page No. 13 of 22 to maintenance peace and public tranquility etc are to be conducted or as to what kind of enquiry should be held by the concerned Executive Magistrate before issuance of such notices to the parties concerned for execution of such bonds. It has been held consistently that such orders are not to be passed and notices are not to be issued in a mechanical manner and without due application of mind and the Magistrate concerned should hold some sort of enquiry into the allegations leveled in such type of kalandras or he should record the statements of witnesses before he comes to a conclusion and directs any party to furnish such bonds or to show cause as to why the same should not be furnished. While dealing with the above issue and the importance of the constitutional rights and liberty of individuals, the Hon'ble High Court of Madhya Pradesh in case Arur Singh Vs. State of M.P. 1984 Crl. L.J. 1616 had laid down certain guidelines to be followed by the Magistrates dealing with such cases. Certain guidelines were also laid down by the Hon'ble High Court of Delhi in case Court on its Own Motion Vs. State & Ors. Cri. Ref. No. 1/2007 and these guidelines were even incorporated by the Delhi Police in its Standing Order No. 189/2008 issued by the Commissioner of Delhi Police at pages 175 to 178 thereof, the extracts of which are being produced herein below: "Since these provisions relate to the liberty of a human being, the Special Executive Magistrate (SEM) is under obligation to hold an inquiry to satisfy himself regarding the existence of material justifying action under this section. Various Courts have issued guidelines regarding the exercise Crl. Rev No. 58629/16, Radheyshyam & Ors. Vs. Govt. of NCT of Delhi & Ors. Page No. 14 of 22 of powers under the above mentioned action. The Hon'ble High Court of Madhya Pradesh (Indore Bench) in Arursingh V. State of M.P. 1984 CRL.L.J. 1616 has given the following directions to be followed by all the Magistrates while dealing with cases under section 107/116/151 Cr.P.C. The above mentioned case has been endorsed by the Hon'ble High Court of Delhi in Crl. Ref. No. 1/2007 Court on its own motion Vs. State and Ors.
(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 the mechanical manner on a cyclostyled paper but it should be well reasoned and detailed one.
XXXXX XXXXXX XXXXXX XXXXXX All the police officers while dealing with cases U/s 107/151 Cr.P.C. 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 ACsP I/C subdivisions before effecting any arrest U/s 151 Cr.P.C. 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 Crl. Rev No. 58629/16, Radheyshyam & Ors. Vs. Govt. of NCT of Delhi & Ors. Page No. 15 of 22 courts to ensure that there is no misuse of these provisions of the law. The SEMs 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 S.O."
15. It is clear from the above guidelines that the Magistrate should stress upon recording of some statements of either the investigating officer or of the witnesses before initiating such proceedings and he should not simply sign the orders or issue such notices in a mechanical manner or cyclostyled manner.
16. In case of Moinuddin, Supra being relied upon by Ld counsels for the petitioners, the Hon'ble High Court of Delhi was again called upon to issue certain fresh guidelines into the matter, but while taking note of the earlier guidelines issued by the Hon'ble Madhya Pradesh High Court as well as by their own bench in the above cases and also the factum of incorporation of these guidelines in the above Standing Order of the Commissioner of Delhi Police, the Hon'ble High Court was of the view that the guidelines already framed and so incorporated were adequate into the matter and no fresh directions were required.
17. However, in an earlier judgment in case of Asha Pant, Supra, being relied upon by Ld counsels for the petitioners also, the issue of adequacy or nature of the enquiry Crl. Rev No. 58629/16, Radheyshyam & Ors. Vs. Govt. of NCT of Delhi & Ors. Page No. 16 of 22 to be held by the concerned SEM in issuing such directions to the parties for furnishing of bonds into cross kalandras was directly involved before the Hon'ble Delhi High Court and while referring to the propositions of law laid down in their earlier judgment in case of Tavinder Kumar and another Vs. State 40 (1990) DLT 210 and the judgment of the Constitution Bench of the Hon'ble Supreme Court in case Madhu Limaye Vs. Ved Murti AIR 1971 SC 2481, their lordships made the following observations: "18. The sum total of the above discussion is that 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 an 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 to form an opinion right away to prevent the breach of peace or public tranquility. However, that should be the exception and not the rule. For instance, as in the present case, where the dispute is essentially between the neighbours in a property, or between a landlord and tenant residing in the same premises, the notice under Section 107 CrPC should not be issued only upon a perusal of the Kalandara prepared by the police. Such a mechanical exercise without the SEM forming an independent opinion on the basis of some sort of a preliminary enquiry would render the exercise of the power vulnerable to Crl. Rev No. 58629/16, Radheyshyam & Ors. Vs. Govt. of NCT of Delhi & Ors. Page No. 17 of 22 being invalidated."
18. The above guidelines issued on the subject from time to time, as well as the decisions referred to above, not only require that such an order of an SEM should be based on some independent enquiry conducted by him with regard to the allegations contained in such kalandras, but also negate the proposition that such order of an SEM is an interlocutory order only or that the same is not challengable U/s 397 Cr.P.C.
19. While coming to the facts and circumstances of the present case, it is observed that though the Ld SEM had initiated the above preventive proceedings against both the parties, i.e. the petitioners no. 1 to 4 as well as the respondent no. 2, and had issued the impugned notices to them, but it is the respondent no. 2 who had actually approached the local police with her above written complaint and no complaint was made from the side of the petitioners against the respondent no. 2. But even despite that, the Ld SEM had initiated the above proceedings against both the parties simply on the basis of the kalandras filed by the local police against both of them and this in itself is a material circumstance to show that the Ld SEM had not applied his own mind to the facts and circumstances of the case to judge as to if there were any such actual apprehensions of breach of peace and public tranquility or of the commission of any offences by the parties against each other and he was simply guided by the contents of the kalandras and the Crl. Rev No. 58629/16, Radheyshyam & Ors. Vs. Govt. of NCT of Delhi & Ors. Page No. 18 of 22 documents enclosed therewith.
20. Again, on perusal of the trial court record, it is also observed that the above kalandras, which are the basis of the impugned order dated 19.10.2016 of the Ld SEM and the impugned notices of even date issued by the Ld SEM to both the parties, have though been prepared by the IO/SI Ranjit Singh on the basis of some alleged enquiry conducted by him from the concerned parties, their neighbours as well as the above Ms. Priyanka, the daughter of respondent no. 2, but it appears to this court that even the IO did nothing in the name of the alleged enquiry and he had simply taken the signatures of the parties concerned on some blank papers and had prepared or got prepared some statements in the names of the parties on these blank sheets got signed from the parties. The alleged statements of the parties herein as recorded by the IO simply contain some vague and general allegations made against each other and there is no specific instance of any previous quarrel or major dispute between the parties, from which the alleged apprehensions of breach of peace or of the commission of any cognizable offences by the parties could have been anticipated or inferred by the IO. Moreover, the alleged statements of the petitioners appear to be only the reproduction of contents of the statements of each other and simply because the parties were related to each other or that they were not on good terms with each other, it could never have been a ground for initiation of the above proceedings against them, which essentially affect or Crl. Rev No. 58629/16, Radheyshyam & Ors. Vs. Govt. of NCT of Delhi & Ors. Page No. 19 of 22 curtail their fundamental rights and liberties as guaranteed by the Constitution. Moreover, though the above kalandras filed by the IO are stated to be based on some enquiries conducted from the neighbours as well as Ms. Priyanka, with regard to the allegations contained in the above DD No. 29B registered on basis of the above written complaint made by the respondent no. 2 with the local police, but he does not appear to have recorded the statement of Ms. Priyanka or of any neighbour of the parties as no such statement is found to be a part of the trial court record. Hence, even the filing of above kalandras against both the parties by the local police on the basis of the alleged enquiry conducted by the IO was not justified.
21. Further, it has also been observed that the above kalandras were filed by the IO, through the SHO concerned, before the Ld SEM on 19.10.2016 and on the same day, the Ld SEM had passed the impugned order and issued the impugned notices to the parties, which again is a circumstance to show the nonapplication of mind on the part of Ld SEM and his acting in a mechanical manner. The prudence required that he should have conducted some independent enquiry to evaluate the correctness of the allegations contained in the said kalandras and the apprehensions being expressed in the kalandras with regard to breach of peace and public tranquility by the parties and simply if he had stated or mentioned about such apprehensions in his impugned order, it cannot be a ground to hold the impugned order and notices to be legal or valid as his Crl. Rev No. 58629/16, Radheyshyam & Ors. Vs. Govt. of NCT of Delhi & Ors. Page No. 20 of 22 alleged apprehensions in this regard are not supported by or founded on any specific material or documents. Even otherwise, he was supposed to follow the guidelines contained in the above Standing Order No.189/2008 issued by the Commissioner of Police, Delhi before issuance of the impugned notices, which required on his part to hold such an enquiry and to record the statements of the concerned parties or their neighbours etc before issuing the impugned notices. As already stated above, these guidelines were, inturn, based on the directions given by the Hon'ble High Courts of Madhya Pradesh and Delhi in the above referred judgments and contained a judicial wisdom and by not adhering to the above departmental guidelines, the Ld SEM had not only acted against the spirit thereof, as well as the judicial wisdom behind these guidelines, but he has also fortified the apprehensions and concerns raised by the Hon'ble Supreme Court and different Hon'ble High Courts from time to time that the provisions contained U/s 107/150/151 Cr.P.C. etc are though meant for preventive purposes only, but are more often abused by the Executive Magistrates or are prone to such abuse .
22. In view of the above legal and factual discussion, this court has no hesitation in holding that the impugned order dated 19.10.2016 passed by the Ld SEM, and also the impugned notices of even date issued by him in terms thereof to the petitioners herein as well as the respondent no. 2, are not sustainable in the eyes of law and the same are, therefore, Crl. Rev No. 58629/16, Radheyshyam & Ors. Vs. Govt. of NCT of Delhi & Ors. Page No. 21 of 22 being set aside. Though, this court could have otherwise referred the material back to the Ld SEM for holding a fresh enquiry into the matter before issuance of any such notices to the parties or the petitioners herein, on the basis of the above kalandras filed by the local police, but since it is also visible from the record of the trial court that even the above kalandras filed by the local police against the parties on the basis of the alleged enquiry conducted by the IO/SI Ranjit Singh were not justified or based on any reasonable enquiry, hence, even the above kalandras are held to be not maintainable and cannot be legally sustained. With the result, the entire proceedings conducted or contemplated on the basis of the above kalandras are required to be quashed or set aside and it is directed accordingly.
23. Therefore, this revision petition stands allowed and disposed off in terms of the above directions. Let the file of revision petition be consigned to record room and a copy of this order be sent to the Ld SEM concerned for his information, compliance and records. TCR be also returned back.
Announced in the open court today, i.e. 04.02.2017 (M.K. Nagpal) Special Judge (PC Act), CBI08, Central District, Delhi/04.02.2017 Crl. Rev No. 58629/16, Radheyshyam & Ors. Vs. Govt. of NCT of Delhi & Ors. Page No. 22 of 22