Delhi District Court
Surinder Singh vs State on 7 June, 2022
IN THE COURT OF SHRI ARUL VARMA
ADDL SESSIONS JUDGE04 & SPECIAL JUDGE (NDPS) ACT
SOUTH EAST DISTRICT: SAKET COURT: NEW DELHI
CR No.67/2022
Surinder Singh
S/o Late Sh. Shiv Singh,
R/o Flat No. 113, Bal Mukund Khaand,
Giri Nagar, Kalkaji,
New Delhi ..........Revisionist
Vs.
1. STATE
Through Station House Officer
P.S. Govind Puri,
New Delhi,
2. Radha Bisht @ Renu Bisht,
W/o Surinder Singh,
R/o Flat No. 167, Top Floor,
Konark Apartment, Pocket4A,
Govind Puri, Kalkaji,
New Delhi. ..........Respondents
Instituted on : 21.02.2022
Argued on : 07.06.2022
Decided on : 07.06.2022.
ORDER
1. Vide this order, this Court shall adjudicate the Criminal Revision petition, whereby the Revisionist has assailed the impugned Kalandra/DD no 29A, order dated 08.01.2022, whereby the revisionist was directed to appear before the Special Executive Magistrate on 31.01.2022. The revision petition has also been moved for setting aside the impugned CR No. 67/22 Surinder Singh Vs. State & Anr. Page No. 1/10 notices u/s 111 Cr.PC on the basis of which Kalandra was registered u/s 107/150 Cr.PC.
IMPUGNED ORDER FACTS
2. The brief facts of the case are that the revisionist Surinder Singh is the absolute owner of the Flat No. Bal Mukund Khaand, Giri Nagar, Kalkaji, New Delhi and was residing in the said property with his wife and two children. However due to marital discord, the matter escalated to a level where the husband and wife filed complaints and cases against each other. Allegations of locking of the premises were also made by the revisionist against his wife. On 27.1.2022, the revisionist received two notices from Special Executive Magistrate, SouthEast, Amar Colony, New Delhi, (i) Notice u/s 107/111 Cr.P.C, (ii) Summons u/s 113 Cr.PC dated 19.01.2022. on 28.01.2022. The revisionist obtained certified copies of Kalandra pursuant to which the above notices were issued to him. Further, on 13.01.2022, the revisionist appeared before the Special Executive Magistrate and filed his written reply. Being aggrieved from the impugned notices dated 19.01.2022 and impugned Kalandra u/s 107/150 Cr.PC registered by DD29A, the revisionist have preferred the CR No. 67/22 Surinder Singh Vs. State & Anr. Page No. 2/10 present Criminal Revision Petition.
CONTENTIONS
3. Arguments from both sides were heard in extenso, the gist whereof is as hereunder:
4. Ld. Counsel for the Revisionist contended that the orders in Kalandra are arbitrary and impugned notices have been issued in a mechanical manner and without conducting proper inquiry. It was submitted that the notice and kalandra are violative of standing order number 23/2008 (previous standing order no. 189/2008) issued by the Commissioner of Police which mandates that the statements of IO and statements of witnesses have to be recorded before issuing the impugned notices to the respondent. Hence, no statement of witnesses have been recorded. Moreover, it was submitted that the impugned notice u/s 111 Cr.PC is subsilentio. Moreover, it was contended that kalandra depicts that there is a property dispute, whereas there is only a matrimonial dispute between the parties. Thus, it was requested to set aside the impugned notices on the basis of which the kalandra was registered, and also to discharge the revisionist from the impugned proceedings initiated u/s 107/150 Cr.PC vide kalandra /DD no 29A dated 08.01.2022, PS Govind puri. Ld. CR No. 67/22 Surinder Singh Vs. State & Anr. Page No. 3/10 Counsel for revisionist has placed reliance on:
a. Aarti Singh & Ajay Narain Vs. State & Ors., 2000 (1) AD Delhi 833 b. Asha Pant Vs. State & Ors. Decided on 17.03.2018 by Hon'ble High Court of Delhi c. Rajender Singh Pathania Vs. State, (2011) 13 SCC 329 d. Ram Narain Singh Vs. State of Bihar, 1972 AIR 2225
5. Per Contra, Ld. Addl. PP for the state submitted that there is no infirmity either in the registration of kalandra or in the issuance of the abovesaid impugned notices. DECISION Recording of Statement of IO or Witnesses
6. Ld. counsel for the revisionist had invited the Court's attention to Standing Order no. 23/2008 (previous Standing Order no. 189/2008) issued by the Worthy Commissioner of Police, to contend that not only the statement of the IO, but all other witnesses ought to have been recorded before initiation of proceedings qua the revisionist, by the Special Executive Magistrate. At this juncture, it would be apposite to peruse the relevant extracts of the said Standing Order which are as under: "Since the provisions relates to the liberty to a human CR No. 67/22 Surinder Singh Vs. State & Anr. Page No. 4/10 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 of powers under the abovementioned action. The Hon'ble High Court of Madhya Pradesh (Indore Bench) in Arursingh vs. State of MP 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 of CRPC. The abovementioned case has been endorsed by the Hon'ble High Court of Delhi in Crl. Ref. No. 1/2007court on its own motion vs State and Ors. (A) The magistrate should stress upon the recording of statements to the investigation officer/witness before initiating any proceedings u/s 107/116/151 of Cr.PC. (B) The magistrate should not order furnishing of surety in the absence of statements of IO/witnesses. (C) The magistrate should not send the detune to jail for failure to furnish surety as directed by him, in case statements of IO/witness 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."
7. A perusal of above extracts nowhere reflects that it is incumbent upon the SEM to mandatorily record statement of both the investigating officer and a witness / witnesses. Had that been so, specific wording to that effect would have been incorporated in the standing order. Thus, on this score, this Court cannot countenance submissions of Ld. counsel for the revisionist.
CR No. 67/22 Surinder Singh Vs. State & Anr. Page No. 5/10 Whether Notice U/s 111 Cr.P.C. is SubSilentio
8. It was contended by Ld. counsel for the revisionist that the impugned notice was subsilentio and withheld material facts that there is a matrimonial dispute between the parties. A decision is said to be subsilentio, when the particular point of law involved in it was not perceived by the Court. In this case, ostensibly, according to Ld. counsel for the revisionist, the factum of matrimonial dispute between the parties have been ignored by the SEM. On this score, this Court concurs with the submissions of Ld. counsel for the revisionist in as much as the complaint dated 20.11.2021, filed by the husband / revisionist against his wife Radha Bisht and complaint dated 10.11.2021 filed by Radha Bisht against the revisionist, clearly make out existence of a matrimonial dispute. The kalandara u/s 107/150 Cr.P.C. vide DD No. 29A dated 08.01.2021 P.S. Govind Puri prepared by SI Talib Chaudhary has laid emphasis on the fact that husband and wife filed complaints against each other and there are allegations of theft, and also that there is a property dispute between the parties which could result in breach of peace or public tranquility. Based on this kalandara, SEM issued notice u/s 111 Cr.P.C. where the emphasis, again was on property CR No. 67/22 Surinder Singh Vs. State & Anr. Page No. 6/10 dispute between the parties, and the issue of marital discord has been completely ignored. Had the SEM carefully perused the complaint annexed with the kalandara, the SEM would have perhaps come to a different conclusion. Whether any material existed to come to conclusion that the acts of the revisionist may cause breach of peace and public tranquility.
A. Dispute was Private in Nature
9. It was contended by Ld. counsel for the revisionist that dispute between husband and wife, which is private in nature, has been blown out of proportion by the SEM, so as to cover it within the ambit of breach of peace and public tranquility. At this juncture, it would be apt to peruse the following extracts of Aarti Singh & Ajay Narain Vs. State & Ors. (Supra): "The sole object of initiating proceedings U/s 107 Cr.P.C. is to maintain public peace and tranquility and cannot be used as handle in case of a private dispute between individuals where there is a material of disturbance of public peace and tranquility."
10. The dispute, as is apparent from the complaint and the kalandara, make it explicit that the dispute is private in nature, and there are allegations of it spilling over to the public domain. The kalandara is based on surmises and conjectures without any tangible or cogent reasoning whatsoever. Merely because there are cross complaints, one CR No. 67/22 Surinder Singh Vs. State & Anr. Page No. 7/10 cannot reach at a conclusion that filing of cross complaints would result in breach of peace. Filing of a complaint, as per law is a statutory right of a party, and mere exercise of the same cannot give rise to an apprehension of disturbance to public peace and tranquility. No overt actions eg. collection of crowd, breaking of items, complaints / 100 number calls by neighbours or public etc. have been brought forth by the police officials.
B. Dispute is Civil in Nature
11. The notice u/s 111 Cr.P.C. itself emphasized that the revisionist and Radha Bisht quarreled with each other over property dispute. Moreover, as per the kalandara both parties keep filing complaints against each other. In Ram Narain Singh Vs. State of Bihar (Supra) it was held that proceedings u/s 107 Cr.P.C. should not be resorted to by the SEM whenever it appears that the dispute is of civil nature in respect of property. In this case too, there is a civil suit number CS/SCJ/1143/221 pending between the parties. The mere pendency of a lis between the parties, without stating as to what offence can possibly be committed by the parties, leads to the inference that proceedings have been initiated in a cavalier manner by the SEM.
CR No. 67/22 Surinder Singh Vs. State & Anr. Page No. 8/10 C. Belated Stage of Initiation of Proceedings
12. In Rajender Singh Pathania Vs. State (Supra) it was held as such: "17. The object of Sections 107/151 CrPC 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 CrPC. An arrest under Section 151 CrPC 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."
13. In the present case the proceedings have been initiated not to quell any impending threat, but rather the proceedings have been initiated qua the complaints filed months ago i.e. in the month of November, 2021. This belated action by the SEM also enures in favour of the revisionist.
CONCLUSION
14. In view of the above discussion, it is clear that SEM has flouted various directions passed by the Hon'ble Supreme Court of India and Hon'ble High Court of Delhi, and as such the impugned notice u/s 111 Cr.P.C. alongwith the summons issued u/s 113 Cr.P.C. are set aside, and the revisionist is discharged from the impugned proceedings initiated u/s CR No. 67/22 Surinder Singh Vs. State & Anr. Page No. 9/10 107/150 Cr.P.C. vide kalandara DD No. 29A dated 08.01.2022, P.S. Govind Puri titled State Vs. Surinder Singh & Ors. Accordingly, the present revision is hereby allowed.
15. TCR, if any, alongwith copy of this order be sent to Ld. Trial Court for necessary information.
16. File of the revision petition be consigned to record room after due compliance.
Announced in the open Court on 7th June, 2022 (ARUL VARMA ) ASJ04 + Spl. Judge (NDPS), South East District, Saket Court, New Delhi CR No. 67/22 Surinder Singh Vs. State & Anr. Page No. 10/10