Delhi District Court
Sh. Amit Gupta vs State (N.C.T. Of Delhi) on 28 April, 2017
IN THE COURT OF SH. DEVENDER KUMAR JANGALA
ADDITIONAL SESSIONS JUDGE03, (WEST)
TIS HAZARI COURTS, DELHI
UID No.79/2017
Criminal Revision Petition No. 21/1/17
P.S. Kirti Nagar
Sh. Amit Gupta,
S/o Late Ram Gopal Gupta,
R/o C15/1, Mansarover Garden,
Near Mayapuri Crossing,
New Delhi. ....Revisionist
Versus
State (N.C.T. of Delhi). .... Respondent
Date of filing: 03.03.2017 Date of arguments: 24.04.2017 Date of order: 28.04.2017 O R D E R
1. The revision petition under Section 397 of the Code of Criminal Procedure 1973 (hearinafter referred to as Cr.P.C.) is filed by the revisionist against the order dated 30.01.2017 passed by Special Executive Magistrate, West District, New Delhi whereby, the revisionist has been summoned and the proceedings under Section 107/111 of the Cr.P.C. has been initiated
2. Brief facts: A Kalandra bearing no. 15 AB/17 was prepared by the police officials of Police Station Kirti Nagar under Section CR No.79/2017 Amit Gupta vs. State . 1 of 7 107/150 of Cr.P.C. on basis of DD entry no. 48 B dated 15.01.2017. On receipt of Kalandara, Special Executive Magistrate issued notice under Section 107/111 of Cr.P.C to the respondent on 30.01.2017.
3. The revisionist/respondent being aggrieved by the said order has filed the present revision petition on the following grounds : i. That the order passed by Special Executive Magistrate is against the judgment passed by the Hon'ble Apex Court and Hon'ble High Court of Delhi.
ii. That the Special Executive Magistrate has passed the impugned order without application of mind and without assigning any cogent reason which are condition precedent for initiating proceedings under Section 107 of Cr.P.C. iii. That the Kalandara in question does not fulfill the ingredients of Section 107 of Cr.P.C.
iv. That the plain reading of Section 107 (1) Cr.P.C. makes it clear that the some kind of inquiry has to be undertaken by Special Executive Magistrate before issuance of notice. v. That in view of the seriousness of the complaint, a FIR should have been lodged on the complaint against the offender as per law.
vi. That Ms. Amita Kujur has filed the false and frivolous case against the revisionist and Smt. Bhawna Chauhan in CAW Cell and under D.V. Act before the Ld. MM.
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4. In view of above grounds, the revisionist prayed that the impugned order/summons dated 30.01.2017 be set aside / quashed.
5. The notice of the revision petition was issued to the State, (NCT of Delhi) which is accepted by Learned Addl. PP for the State. The revision petition is strongly opposed by Ld. Addl PP for the State. It is stated that there is no illegality or infirmity in the order passed by Special Executive Magistrate and the same does not require any interference. It is prayed that the revision petition be kindly dismissed.
6. I have carefully perused the material available on record and gone through the submission of Ld. Counsel for the revisionist as well as Ld. Addl. PP for the State.
7. Before proceeding further, the impugned order dated 30.01.2017 passed by Special Executive Magistrate needs to be reproduced for consideration: O R D E R " Heard the I.O. and his statement recorded I am satisfied from the information received and facts brought before me and of view that there are sufficient grounds to proceed u/s 107/150 Cr.P.C. against the above mentioned respondents. Issue notice CR No.79/2017 Amit Gupta vs. State . 3 of 7 u/s 107/111 Cr.P.C. to the respondents. Case to come upon 08.02.17. at 2.PM."
Sd/ 30.01.2017
8. I have also placed reliance upon one judgment of Hon'ble High Court of Delhi passed in matter reported as Satya Devi vs. State, 2008 [4] JCC 2342 regarding the procedure to be followed by Special Executive Magistrate for the proceedings initiated under Section 107/111 Cr.P.C. The relevant para 9 of the aforesaid judgment is reproduced as under : " Section 111 of the Code comes into play or can be invoked only if after receipt of the notice issued under Section 107 of code, the person concerned responds or fail to respond. An order can be made by the Magistrate asking such person to furnish a bond. An order under Section 111 of the Code can be issued by a Magistrate only if after acting under section 107, 108, 109 or Section 110 he feels it necessary to require any person to show cause under such section. Magistrate is required to make an order in writing, setting forth the substance of the information received, the amount of the bond to be executed, the term for which it is to be in force and the number of class of sureties if any required. "
9. It is not out of place to mention that the Hon'ble High Court in Criminal Reference No.1/2007 titled as Court on its own motion vs. State & Ors has laid down the directions to be CR No.79/2017 Amit Gupta vs. State . 4 of 7 followed by the Magistrate while dealing with the cases under Section 107/116/151 Cr.P.C. The Commissioner of Police, Delhi had also issued Standing Order no. 189/2008 compiling the principles laid down by the various courts with regard to the exercise of the power under Section 107/116/151 Cr.P.C.
10. The bare perusal of the impugned order passed by Special Executive Magistrate would show that the same is contrary to the judgment of the Hon'ble Apex Court and Delhi High Court. The SEM has failed to comply with the directions passed by the Hon'ble Courts in Madhu Limaya v. Ved Murti, AIR 1971 SC 2481; Asha Pant v. State & ors., 2008 (2) JCC 984, Jagdip and Anr. vs. State, 32 (1987) DLT 146 and Tarvinder Kumar vs. State, 40, (1990) DLT 210.
11. The order of summoning dated 30.01.2017 passed by Special Executive Magistrate is also against the Standing Order no. 189/08 issued by the Commissioner of Police, Delhi. The Special Executive Magistrate had initiated the proceedings under Section 107/111 of Cr.P.C. without recording the statement of the IO/witnesses as mandated by the Standing Order. The Special Executive Magistrate has also passed order under Section 111 Cr.P.C. without issuance of the notice under Section 107 of Cr.P.C. or giving opportunity to the person concerned, to respond to the same.
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12. The Hon'ble Delhi High Court in Satya Devi vs. State (Supra) has clarified that Section 111 of Cr.P.C. comes into play or can be invoked only if after receipt of notice issued under Section 107 of Cr.P.C, the person concerned fails to respond. The order under Section 111 Cr.PC can be issued by the Magistrate only after acting under Section 107/108/110, if feels necessity to issue show cause under such section.
13. It is clear that order dated 30.01.2017 passed by Special Executive Magistrate is against the judgments of the Hon'ble High Court of Delhi and also in violation of Standing Order no. 189/08 issued by Commissioner of Police, Delhi, Hence, same is not sustainable in the eyes of law. Accordingly, order dated 30.01.2017 passed by Ms. Asha Sharma Badola, Special Executive Magistrate, West, Delhi is set aside.
14. In the present case, the Special Executive Magistrate concerned has acted mechanically. The Special Executive Magistrate has failed to discharge the legal duties cast upon her. Therefore, Special Executive Magistrate is directed to consider the Kalandara in the light of the directions issued by the Courts of Law and the Standing Order issued by Commissioner of Police, Delhi. The revisionist shall appear before the Special Executive Magistrate on 15.05.2017.
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15. It is not out of place to mention that the Hon'ble High Court of Delhi in judgment titled as Satya Devi vs. State, 2008 [4] JCC 2342, & Tarvinder Kamar vs. State, 40 (1990), DLT 210 had issued directions to circulate the copy of the judgment to sensitize the concerned police officer. Thereafter, the Standing Order No. 189/08 was issued by Commissioner of Police, Delhi, compiling the various directions of Courts. However, the present order reflects that the directions of the Hon'ble High Court and the Standing order are not complied with by the Special Executive Magistrate / police officials. Accordingly, copy of this order be sent to Commissioner of Police, Delhi with directions to sensitize the Special Executive Magistrates/ concerned police officials in this regard.
16. Revision petition be consigned to the Record Room after necessary compliance.
17. Trial Court record be sent back along with attested copy of this order forthwith.
Announced in the open court today i.e. 28th April, 2017 (DEVENDER KUMAR JANGALA) ASJ03, WEST/DELHI 28.04.2017 CR No.79/2017 Amit Gupta vs. State . 7 of 7