Delhi District Court
Sh. Surender Singh Tomar vs State (Govt. Of Nct Of Delhi) on 18 February, 2014
IN THE COURT OF SH. RAKESH KUMAR
ADDITIONAL SESSIONS JUDGE :NORTH EAST:
KARKARDOOMA COURTS, DELHI
CR No.02/2014
Sh. Surender Singh Tomar,
S/o Sh. Heera Lal,
R/o House No.79, Gali No.2,
New Chauhan Pur, Karawal Nagar Road,
Delhi - 110094. .....Revisionist.
Versus
1. State (Govt. of NCT of Delhi)
2. Station House Officer,
P.S. Karawal Nagar, N.E. Distt.,
Delhi.
3. S.I. Manoj Kumar
P.S. Karawal Nagar, N.E. Distt.,
Delhi. .....Respondents.
:J U D G M E N T:
1. This is a revision petition u/s 397 Cr. P. C for setting aside the order u/s 107/150 dated 29.11.2013, thereby issuing notice u/s 107/111 Cr. P. C and asking the accused persons (including revisionist herein) to show cause why they should not be ordered to execute a personal bond in the sum of Rs.20,000/ with one surety in the like amount for Surender Singh Tomar Vs. State etc. (CR No.02/2014) Page No. 1 of pages 8 keeping peace during the proceedings in an Kalandra titled as State Vs. Sanjeev etc., DD No.32A dated 10.11.2013 U/s 107/150 Cr.P.C.
2. The impugned order u/s 107/150 dated 29.11.2013 for issuance of notice U/s 107/111 Cr.P.C. has been passed by Ld. SEM on the basis of the report of SHO and SI Manoj Kumar of PS Karawal Nagar with the allegations that the revisionist can made quarrel in the forthcoming Assembly Election to be held on 04.12.2013 and can do any thing to get win their party. Consequent upon the said inquiry Kalendara dated 10.11.2013 was sent to the court of Ld. SEM and on 29.11.2013 Ld. SEM had passed the impugned order u/s 107/150 Cr.P.C. which reads as under: "SHO PS Karawal Nagar has sent up a Kalandra U/s 107/150 Cr.P.C. against the above mentioned respondents. I have carefully gone through the police report and come to the conclusion that there are sufficient grounds to proceed against the respondents.
I, therefore, order that notice u/s 107/111 Cr.P.C. be issued to the respondents asking them to show cause why they should not be ordered to execute a personal bond in the sum of Rs.20,000/ with one surety in the like amount for keeping peace during the proceedings."
3. After passing said order, Ld. SEM issued the impugned show cause notice u/s 107/111 Cr.P.C. and on 03.12.2013 revisionist was directed to furnish surety on 30.12.2013.
Surender Singh Tomar Vs. State etc. (CR No.02/2014) Page No. 2 of pages 8
4. The impugned order and show cause notice both dated 29.11.2013 have been challenged by the revisionist on various grounds as mentioned in the revision petition and I have gone through the same.
5. I have carefully heard the rival submissions made on behalf of the petitioner as well as by Ld. Addl. PP for the State. I have also perused the entire material placed on record by calling the trial court record.
6. As per submissions of Ld. counsel for the revisionist/ petitioner the aforesaid impugned order and notice U/s 107/111 Cr.P.C are bad in law as in this case initiation of the proceedings under section 107 Cr.P.C. is not in accordance with law. It is well settled proposition of law that it is manifest under S. 107 of the Criminal Procedure Code, the Executive Magistrate, who receives information that any person is likely to commit a breach of the peace is further required to formulate his opinion that there is sufficient ground for proceeding against that person. Only thereafter, he can issue a notice to show cause why the said persons should not be ordered to execute a bond, for keeping peace for such period as may be prescribed by the Magistrate. If the Magistrate, receiving the information, does not formulate any opinion of his own but nevertheless proceeds to make the preliminary order, decidedly, he commits the initial mistake, as the very foundation of the preliminary order would be lacking. In that contingency, the preliminary order itself will be held to be illegal and the entire proceeding is liable to be quashed. In the case in hand, there is nothing on record to suggest that Ld. SEM had formulated his own opinion by way of recording of evidence etc. that there is sufficient ground for proceeding Surender Singh Tomar Vs. State etc. (CR No.02/2014) Page No. 3 of pages 8 against the petitioner, so impugned order are bad in law and can not be sustained any more. Here, Ld. counsel for petitioner has placed reliance upon a judgment reported as 1977 CRL LJ 1369.
Per contra, according to Ld. Addl. PP for the State the revision petition as filed by the petitioner contains no force in it as there is no illegality or material irregularity in the impugned orders as the proceedings u/s 107/150 Cr. P. C are not an independent criminal offence, rather, these are the preventing proceedings against the parties to maintain public peace in the locality.
7. In III1989 (1) Crimes 581 Orissa High Court, where without making an enquiry as envisaged u/s 202 Cr.P.C. and observed in AIR 1971 SC 2486 titled as Madhu Limaye and another Vs. Sub Divisional Magistrate, Monghyr, the proceedings u/s 107 Cr.P.C. was initiated and the petitioners were directed to appear in the court and to show cause as to why they should not be ordered to execute bonds for Rs.1,000/ with two sureties for the like amount to keep peace in the locality for a period one year. While upholding the submissions of Learned counsel appearing for the petitioner based upon 1988 (2) Ori. LR 72 titled as Fakir Charan Singh and others Vs. State of Orissa and another, it was held that before issuance of notice, a fact finding enquiry was not held by the Executive Magistrate and so initiation of the proceeding under section 107 Cr.P.C. was not in accordance with law.
In AIR 1972 (2) CWR 1242 titled as Adikanda Sahu and another Vs. Kasiram Rout, it has been held that, "The Magistrate is not to act automatically on receiving an information but is vested with the discretion to satisfy Surender Singh Tomar Vs. State etc. (CR No.02/2014) Page No. 4 of pages 8 himself that there is sufficient ground for proceeding. The method and manner of reaching such satisfaction is also left to his judicial discretion and the most obvious method envisaged in section 202 Cr.P.C."
In 2008 (4) JCC 2342 titled as Satya Devi & Ors. Vs. State & Ors. it has been held that, "The precautions to be observed by the SEM while exercising powers under Section IV 107 of the Code are mandatory in nature."
In AIR 2008 (2) JCC 984 titled as Asha Pant Vs. State & Ors., Hon'ble High Court of Delhi summoned up the procedure to be followed by the Magistrate while proceeding under Section 107 and 111 of the Code in the following manner: "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 Cr.P.C. set out thereafter. Such steps should be preceded by the formation of an opinion in writing by a Magistrate which should be discernable when the decision is challenged in the Court. Such information 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."
In 1977 CRI. L.J. 1369 titled as Shivaputrappa Surender Singh Tomar Vs. State etc. (CR No.02/2014) Page No. 5 of pages 8 Gurshantappa Angadi & another Vs. State of Karnataka, it has been held that, "It is manifest under S. 107 of the Criminal Procedure Code, the Executive Magistrate, who receives information that any person is likely to commit a breach of the peace is further required to formulate his opinion that there is sufficient ground for proceeding against that person. Only thereafter, he can issue a notice to show cause why the said person should not be ordered to execute a bond, for keeping peace for such period, as may be prescribed by the Magistrate. If the, Magistrate, receiving the information, does not formulate any opinion of his own but nevertheless proceeds to make the preliminary order, decidedly, he commits the initial mistake, as the very foundation of the preliminary order would be lacking. In that contingency the preliminary order itself will be held to be illegal and the entire proceeding is liable to be quashed."
8. In the instant case, the Ld. Trial Court has not followed the steps envisaged in Sec. 107 of Cr.P.C. strictly in accordance with the procedure outlined in the provisions of the Code of Criminal Procedure. After receipt of information, the SEM did nothing to formulate his own opinion that there is sufficient ground for proceeding against the petitioner. No fact finding inquiry was done by him in that regard. Moreover, the purpose for which the instant proceeding was launched vide DD No.32A dated 10.11.2013 i.e. to maintain peace and tranquility during the Delhi Assembly Election, has already been achieved as the elections have already been held in the month of December, 2013, so now nothing remains in the said proceedings and same has become infructuous also.
9. Thus, for the aforesaid reasons, the impugned order of Surender Singh Tomar Vs. State etc. (CR No.02/2014) Page No. 6 of pages 8 notice dated 29.11.2013 can not be sustained any more. As such, the revision petition as filed by the petitioner is allowed and the impugned order of Ld. SEM is set aside.
10. TCR alongwith the copy of judgment be sent back to the Ld. Trial Court.
11. Revision file be consigned to Record Room after completion of necessary formalities.
(Announced in Open court (RAKESH KUMAR) on 18 th February, 2014) Addl. Sessions Judge/North East Karkardooma Courts, Delhi Surender Singh Tomar Vs. State etc. (CR No.02/2014) Page No. 7 of pages 8 CR No.02/2014 Surender Singh Tomar Vs. State etc. 18.02.2014 Present: Ld. Counsel for revisionist.
Sh. Dharam Chand, Ld. Addl.PP for State. Remaining arguments heard.
Put up at 4.00 p.m. (RAKESH KUMAR) ASJ02 (NE)/KKD/DELHI 18.02.2014 18.02.2014 (at 4.00 pm) Present: As before.
Vide a separate judgment, revision petition of the revisionist stands disposed off.
TCR alongwith the copy of judgment be sent back to the Ld. Trial Court.
Revision file be consigned to Record Room after completion of necessary formalities.
(RAKESH KUMAR) ASJ02 (NE)/KKD/DELHI 18.02.2014 Surender Singh Tomar Vs. State etc. (CR No.02/2014) Page No. 8 of pages 8