Delhi District Court
Sh. Anuj Kaushik vs The State on 18 January, 2023
IN THE COURT OF SH. VIKRAM, ADDL. SESSIONS
JUDGE -02-CUM-SPECIAL JUDGE-NDPS ACT, NORTH
WEST DISTRICT, ROHINI COURTS, DELHI
DLNW010055742022
Presented on : 03-06-2022
Registered on : 06-06-2022
Decided on : 18-01-2023
Duration: 0 years,7 months, 15 days
JUDGMENT
(Delivered on 18-01-2023) SH. ANUJ KAUSHIK S/o Sh. Virender Kumar, R/o 342, Plot No. 3, Pitampura, Delhi.
Also At :
H.No. 3, Khasra No. 342, Village Pitampura, Delhi-110034. .... Petitioner/Revisionist VERSUS
1. THE STATE
2. SMT. ANSHU SHARMA W/o Sh. Anuj Kaushik, D/o Sh. Narender Kumar, R/o A-2/446, 3rd Floor, Sector-8, Rohini, Delhi.
.... Respondents CR No. 159/22 Sh. Anuj Kaushik Vs. The State & Anr. Page No. 1/11 Date of Institution : 06.06.2022 Date when judgment was reserved : 11.01.2023 Date when judgment is pronounced : 18.01.2023 JUDGMENT
1. This revision petition under Section 397 read with Section 399 Cr.P.C. has been preferred by the petitioner/revisionist to call the record of the Court of Sh. Subhash Vats, Ld. S.E.M., Sector-3, Rohini, Delhi challenging the entire proceedings/kalandra emanating from DD No. 112 dated 06.04.2022 of P.S South Rohini.
2. The brief facts of the case are that the petitioner was married with the respondent No. 2 namely Smt. Anshu Sharma on 28.01.2016 according to Hindu rites and ceremonies.
3. It is contended that two female child namely Mysha (aged about 5 years) and Shivi (aged about 3 years) were born out of his wedlock and presently, both the minor daughters are under the care and custody of the petitioner. Since the date of marriage, the behaviour, attitude and temperament of respondent No. 2 was very much cruel and disgraceful. However, considering the fat that "the marriage are settled in heaven and solemnized on earth", the petitioner left no stone unturned to adjust and maintain the respondent No. 2. Having no option, the petitioner herein, shifted on a rented accommodation at A-2/446, 3 rd floor, Sector-6, Rohini, Delhi but behaviour and attitude of respondent No. 2 remained in the same colour. Due to continuous, dis- respective behaviour and misconduct of the respondent No.2, the CR No. 159/22 Sh. Anuj Kaushik Vs. The State & Anr. Page No. 2/11 father of petitioner debarred the him and the respondent No. 2 from all his movable and immovable properties through publication in newspaper 'Jansatta' dated 12.08.2020. When the cruelties and atrocities of the respondent No. 2 increased and in compelling circumstances, having no option, the petitioner filed a petition for dissolution of marriage against the respondent No. 2. After coming to know that a petition for dissolution of marriage has been filed by petitioner, the respondent No. 2 became very furious and adamant and she i.e. respondent No. 2 filed a complaint against the petitioner and his family members in CAW Cell, Sector-3, Rohini, Delhi. Thereafter, on 06.04.2022, the petitioner and his father Sh. Virender Kuar appeared in CAW Cell before the Counselor where during discussion/counseling, two muscular men, who were accompanied by respondent No. 2, openly threatened the petitioner and his father that they would shoot both of them. The women, who had come with respondent No. 2 started using filthy, unsocial, unbearable and filthy language and after considering the peculiar situation/scene created by respondent No. 2 and her associates, the petitioner made a call to PCR that he needs protection of police for his safety. Thereafter, police officials came in the Counseling Room and asked that the petitioner is called by ACP/SEM. The petitioner accompanied the said police official and came in the office of SEM and the petitioner was handed over to police official who was available in the room of Ld. SEM.
4. It is further contended that when the petitioner was asked that he has been taken in police custody under Section 107/15 Cr.P.C., the petitioner made request to the police officer whom he CR No. 159/22 Sh. Anuj Kaushik Vs. The State & Anr. Page No. 3/11 was taken in custody to tell the offence made by him, but he did not reply or explain anything. On the next day, the petitioner was released by the Court of Ld. SEM, however, no copy of any complaint or any other proceedings was supplied to him despite his requests again and again. When the petitioner tried to pressurized to get the copy of complaint, if any, filed by anyone against the offence in which he was taken into custody, IO stated that "Tu jyada wakil ka bachha hai kya? Ye chhod diya yahi bahut hai".
5. It is further contended that on 25.05.2022, the respondent No. 2 along with her parents, her maternal uncle and the son of maternal uncle and others women and men made an attempt to enter forcibly in the parental house of revisionist i.e. 342, Shivaji Market, Village Pitampura, Delhi. Further, that prior information was given to the police in respect of above stated gathering and the police instead of protecting the fundamental right of security of the parents of petitioner and the property escorted the wrong doer i.e. the above said persons, were shouting in a very filthy, unfair and indecent remarks/slogans against the petitioner and his family members and they were having some pamphlets and handbills which were spread over and distributed among the vicinity, locality stating therein various unfounded, unsocial allegations against the petitioner and his family members. The persons were having some flags and were stating that they are the workers of United Hindu Front and Rashtrawaid Shivsena, however, the said pamphlets/handbills were bearing no registration number or address, as such, that entire illegal, unwarranted and non-maintainable act has been done by these CR No. 159/22 Sh. Anuj Kaushik Vs. The State & Anr. Page No. 4/11 persons. The proceedings initiated by Ld. SEM Court is quite arbitrary and against the provisions of law. Hence, the present petition.
6. The petitioner has challenged the proceedings on the following grounds :
(i) That the averments made in the kalandra are quite unfounded, imaginary and merely a bundle of artificial jewellery having no iota of truth.
(ii) That the revisionist made a call to the police considering the seriousness of threat given by associates of respondent No. 2, however, the petitioner has been made scapegoat and the proceedings under Section 107/151 Cr.P.C initiated against him are quite false, frivolous and baseless.
(iii) The in the averments of kalandra, no name of any person has been mentioned in whose presence, the alleged incident happened.
(iv) That before the Court of Ld. SEM, appropriately 10-15 Advocates remains present, but in the entire kalandara, it has not been stated, if any, Advocate was asked to that effect.
(v) That as per admission in the kalandara, it is crystal clear that the petitioner had come to attend the proceedings in the complaint filed by his wife in CAW Cell and from where he was called through police official and was handed over to the police.
(vi) That the petitioner was ready to produce a sound surety before SEM which was denied to be taken by Court.
(vii) That as per averments, the petitioner was abusing his wife, CR No. 159/22 Sh. Anuj Kaushik Vs. The State & Anr. Page No. 5/11 but it has not been mentioned from whom the police/IO came to know that the petitioner was abusing his wife. It is crystal clear that his wife was not present as per averments made in the kalandra.
(viii) That as per application submitted by respondent No. 2 on 06.04.2022, it has been stated by her that her husband i.e. petitioner and her father in law Sh. Virender Kumar abused her and manhandled her in the Counseling room and the respondent No. 2 flatly refused for her medical examination.
(ix) That as per averments made in the kalandra, the petitioner was shouting , abusing and creating scene of violence, which is apparently a concocted story of the police.
(x) That the revisionist apprehends that he may be implicated in other false, frivolous and baseless complaints on filmsy grounds.
On these grounds the petitioner has prayed for calling the entire record of SEM Court, in case of the petitioner, since the date of initial proceedings and that proceedings before the Ld. SEM may kindly be stayed till finalization of the present revision petition.
7. Notice of the present petition was issued to the respondents who appeared in the Court, however no reply was filed on their behalf and straightaway arguments were addressed on their behalf.
8. I have perused the TCR. This kalandra was prepared vide DD No. 112 dated 06.04.2022. As per kalandra, when the complainant ASI Sunil Dutt along with Ct. Narender were on CR No. 159/22 Sh. Anuj Kaushik Vs. The State & Anr. Page No. 6/11 patrolling and reached in front of SEM Court, Sector-3, Rohini, Delhi, they found that L7 staff was trying to pacify one person but he was not listening to him and was shouting loudly on the road and was hurling abuses and threats. There was a huge crowd gathered at the spot and were getting upset due to the behaviour of that person. The petitioner was on warpath (marne maarne to utaru), therefore, the complainant with the help of Ct. Narender again tried to pacify him. The petitioner did not listen to complainant and the complainant enquired about his name and address who was hurling abuses and threatening to his wife loudly on the road and was saying that he will settle the score with her, there itself. Therefore, IO finding no option discussed the matter with SHO and took preventive action under Section 107/151 Cr.P.C and arrested the petitioner and recorded statements of his wife Smt. Anshu Sharma. However, as it was already 5 p.m, the petitioner was produced before SEM concerned on 07.04.2022 i.e. next day. Ld. SEM on the same day after recording his conclusion that there are sufficient grounds to proceed against the petitioner, issued notice calling upon the petitioner to furnish bond of Rs.10,000/- with surety for keeping peace for causing no disturbance in the public tranquility till conclusion of enquiry.
9. Power of arrest under Section 151 Cr.P.C originates only on the knowledge of a design to commit cognizable offence if it appears that the commission of offence cannot be prevented unless power of arrest is exercised. The object of Section 107 Cr.P.C is just to stop/prevent any possibility or apprehension of disturbance of public peace in the society and that danger to CR No. 159/22 Sh. Anuj Kaushik Vs. The State & Anr. Page No. 7/11 public peace and tranquility must be imminent, only than this section would come into play to stop it. The object of this section has been elaborated by the Hon'ble Apex Court in a case titled "Rajender Singh Pathania v. State (NCT of Delhi", (2011) 13 SCC 329 as under:
"17. The objects of Sections 107/151 Cr.P.C 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 Cr.P.C. An arrest under Section 151 CA No.22/2022 Neelam & Ors. Vs. State 7/15 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.
18. A mere perusal of Section 151 of the Code of Criminal Procedure makes it clear that the conditions under which a police officer may arrest a person without an order from a Magistrate and without a warrant have been laid down in Section 151. He can do so only if he has come to know of a design of the person concerned to commit any cognizable offence. A further condition for the exercise of such power, which must also be fulfilled, is that the arrest should be made only if it appears to the police officer concerned that the commission of the offence cannot be otherwise prevented. The section, therefore, expressly lays down the requirements for exercise of the power to arrest without an order from a Magistrate and without a warrant. If these conditions are not fulfilled and, a person is arrested under Section 151 Cr.P.C, the arresting authority may be exposed to proceedings under the law for violating the fundamental rights inherent in Articles 21 and 22 of the Constitution. (vide Ahmed Noormohmed Bhatt v. State of Gujarat [(2005) 3 SCC 647 : 2005 SCC (Cri) 794 : AIR 2005 SC 2115], SCC p. 650, para 5.) (See also Joginder Kumar v. State of U.P. [(1994) 4 SCC 260 :
1994 SCC (Cri) 1172 : AIR 1994 SC 1349] and D.K. Basu v. State of W.B. [(1997) 1 SCC 416 : 1997 SCC (Cri) 92 : AIR 1997 SC 610])".CR No. 159/22 Sh. Anuj Kaushik Vs. The State & Anr. Page No. 8/11
In Kishor & Another Vs. State of Maharashtra & Ors.
Cri. W.P. No. 183/2014 Hon;ble High Court of Judicature at Bombay held that :
"Knowledge to the police officer of a design to commit any cognizable offence and formation of opinion by the concerned police officer that the commission of offence cannot be prevented unless preventive action is aken against proposed offender is sine qua non for taking preventive action as per section 151(1) of Cr.P.C. Depriving a person of his liberty guaranteed by Article 21 of the Constitution of India cannot be left to the whims and wishes of police officers, and if it is permitted it would be conferring arbitrary and unbridled powers on the police officials/authorities. It is important to note that knowledge of the police officer about the design to commit any cognizable offence by a person has to be reflected from the record showing the details of proposed preventive action against that person".
10. As Smt. Anshu Sharma with whom the petitioner was quarreling is the wife of petitioner and they were at the SEM office in CAW proceedings, the quarrel between them being a family matter between husband and wife, there was no reason for any apprehension or any imminent threat of committing any cognizable offence under any design. Hence, the very first action of IO to arrest the petitioner was illegal.
11. Before Ld. SEM, when the petitioner was produced, as reflected in order sheet dated 07.04.2022, the IO was not present. Order sheet dated 07.04.2022 records, "respondent is produced in P.C. Heard surety produced, accepted come on 14.05.2022". The detailed order too records that IO was not present and the kalandra was sent by SHO P.S South Rohini. Ld. SEM did not examine any witness or the IO before issuing notice upon accused to furnish bonds. The notice do not show if the allegations were accepted by petitioner, however, the detailed CR No. 159/22 Sh. Anuj Kaushik Vs. The State & Anr. Page No. 9/11 order of SEM records that the contents of kalandra were not accepted.
12. Hon'ble High Court of Delhi while dealing with Section 107/151 Cr.PC in a case titled Moinuddin versus State & Ors. 2009 SCC OnLine Del 3406 : (2009) 164 DLT 160 (DB) laid down the following parameters to deal with such cases as under:
(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 a mechanical manner on a cyclostyled paper but it should be well reasoned and detailed one.
13. The lapses recorded above, in the proceedings and the order in itself are sufficient for this Court to come to conclusion that Ld. SEM did not apply his mind while proceeding u/S 107/151 Cr.P.C against petitioner. The order of Ld. SEM requiring the petitioner to execute personal bond u/S 116(3) Cr.P.C without holding any inquiry and without even examining the IO and the witnesses, is contrary to the position of law settled by Hon'ble High Court in Moinuddin (supra).
14. Ld. SEM, was under obligation to examine prosecution witnesses with opportunity to opposite party to cross-examine those witnesses to rebut allegations. However, in the absence of examination of witnesses, Ld. SEM was precluded not to pass CR No. 159/22 Sh. Anuj Kaushik Vs. The State & Anr. Page No. 10/11 any order of furnishing surety as laid down by condition (B) of the abovesaid judgment. Similarly, as per condition (D), the Magistrate was not supposed to sign the order in a mechanical manner on a cyclostyled paper and ought to be well reasoned and detailed one. As such, the impugned order passed by Ld. SEM is against all judicial norms and is liable to be set aside.
ORDER
15. Keeping in view the facts and circumstances of this case, I am of the considered opinion that entire impugned proceedings emanating from DD No. 112 bear infirmity as well as illegality from its very inception and the same are liable to be set aside, hence, set aside. Surety bonds already furnished by the petitioner u/s 116 (3) of Cr.P.C in pursuance of order dated 07.04.2022 are hereby cancelled.
16. Copy of this judgment be given dasti to both parties. Copy thereof be also sent to Ld. Trial Court with TCR.
17. Revision file be consigned to Record Room.
Date : 18-01-2023 (Vikram)
ASJ02cumSpecial Judge (NDPS),
NorthWest District, Rohini Courts,
Delhi.
Dictated on : 18.01.2023
Transcribed on : 18.01.2023
checked on : 18.01.2023
Signed on : 18.01.2013
(Vikram)
ASJ02cumSpecial Judge (NDPS),
NorthWest District, Rohini Courts,
Delhi.
CR No. 159/22 Sh. Anuj Kaushik Vs. The State & Anr. Page No. 11/11