Delhi District Court
Criminal Revision No. 48/ vs State on 16 May, 2011
1
IN THE COURT OF SMT. BIMLA KUMARI
ADDITIONAL SESSIONS JUDGE-II (NORTH) : DELHI
1. Criminal Revision No. 48/10
Case I.D No. 02401R0572612010
Date of institution: 15.12.10
1 Suman Kalia
W/o Sh. Harsh Kalia
R/o 177A, Anukampa Abhay Khand-IV,
Indrapuram,
Distt. Ghaziabad, U.P.
2 Kanchan Kaushik
W/o Sh. Surender Sharma
R/o 3/25, Roop Nagar,
Delhi
3 Dr. Sushma Mittal
W/o Dr. Ajay Mittal
R/o A-101, Anand Vihar
Delhi-110092 ...REVISIONISTS
V e r s u s
State ...RESPONDENT
2. Criminal Revision No. 20/11
Case I.D. No. 02401R0134902011
Criminal Revisions No. 48/10 and 20/11 Page 1/9
2
1 Ms. Jaya Sharma
W/o Sh. Pankaj Sharma
R/o 4/18, Ground Floor,
Roop Nagar, Delhi
2 Sh. Pankaj Sharma
S/o Saroj Sharma
R/o 4/18, Ground Floor
Roop Nagar, Delhi ...REVISIONISTS
V e r s u s
State ...RESPONDENT
Date of institution: 25.03.11
Date of reserving judgment: 27.04.11
Date of order: 16.05.11
ORDER
By the present order, I shall dispose of two revision petitions bearing C.R. No. 48/10 titled as 'Suman Kalia and Ors. V. State' and C.R. No. 20/11 titled as 'Jaya Sharma and Pankaj Sharma V. State'. Both revision petitions have arisen out of the same order dated 18.10.10 passed by Ld. Special Executive Magistrate, North. 2 Vide the impugned order, Ld. Special Executive Magistrate issued notices U/S107/111 CrPC to the revisionists asking them to showcause as to why they should not be ordered to execute a personal Criminal Revisions No. 48/10 and 20/11 Page 2/9 3 bond of Rs. 5000/- each with one surety of like amount for keeping peace for a period of one year.
3 The grounds taken in the revision petition by revisionists Suman Kalia and Others are that Ld. Special Executive Magistrate has erred in issuing the impugned notices against the revisionists and caused grave injustice to the revisionists; that the impugned showcause notices appeared to have been issued in haste and mechanical manner without due application of judicial mind; that the impugned notices U/S 107/111 Cr.PC seem to have been issued on the basis of incorrect facts; that the impugned show-cause notices are vague, ambiguous and do not specify details of any single incident, which could have caused the alleged apprehension of breach of public peace and tranquility; that the impugned showcause notices, infact, pertain to primarily between two individuals, which has nothing to do with public tranquility and breach of peace; that the issuance of impugned show-cause notices is unwarranted and illegal; that Ld. Special Executive Magistrate has acted mechanically barely on the information furnished by subordinate police officials without holding minimal independent preliminary enquiry as required U/S 107 CrPC; that the perusal of Kalandara revealed that concerned police officials had acted in prejudiced and biased manner and instead of protecting old/senior citizens, by taking action on their complaints, had implicated them; that the members of public were not at all affected by the alleged concocted acts of Criminal Revisions No. 48/10 and 20/11 Page 3/9 4 revisionists; that the proceedings initiated U/S 107/111 Cr.P.C against the revisionists are totally untenable and are the abuse of process of law.
4 The ground taken by revisionists Jaya Sharma and Pankaj Sharma are that there was not a single allegation in the showcause notices against them of causing breach of peace and Ld. Special Executive Magistrate has issued notice in a mechanical manner and without due application of judicious mind; that there is no iota of evidence against the revisionists from which an opinion of causing breach of peace can be inferred.
Thus, prayer has been made by revisionists to set aside the impugned order passed by Ld. Special Executive Magistrate. 5 I have heard arguments from ld. counsels for revisionists and Ld. Addl. PP for State. I have perused the revision file as well as the trial court record.
6 In Satya Devi and Ors. V. State and Ors, 2008 [4] JCC 2342, the Hon'ble High Court of Delhi has quashed the Kalandras and notices U/S 107/150 CrPC. In that case, the dispute was between the landlord and tenant. The Hon'ble Delhi High Court has observed:
"In such like matters, the SEM should have exercised his power under Section 107 of the Code in a guarded manner. Notice issued under Section 111 of the Code is on Criminal Revisions No. 48/10 and 20/11 Page 4/9 5 a cyclostyled proforma and only the relevant information like name of the person to whom the notice has been issued, with his address and the name of the complainant has been filled in hand in the blanks left in the proforma notice. There is nothing in the impugned notice issued by the SEM to indicate that he had formed an opinion as required under Section 107 of the Code that there was apprehension of breach of peace. He did not hold even the minimal enquiry that was required on the facts and circumstances of the case. Also, the SEM did not issue any notice upon the petitioners as required under this section. Instead he proceeded by giving a notice under Section 111 of the Code without making an order in writing setting forth substance of the information received and the amount of bond to be executed in terms of which it is to be in force and the number of class of sureties if any required. Notice has been issued in a mechanical manner in utter disregard to the provisions of law. The notice issued under Section 111 of the Code lacks all material particulars".
In Asha Pant V. State and Ors. 2008 [2] JCC 984 also, the Hon'ble Delhi High Court quashed the notices issued U/S 107/111 CrPC issued by Special Executive Magistrate in Kalandara. It was held by Hon'ble Delhi High Court:
"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 a Criminal Revisions No. 48/10 and 20/11 Page 5/9 6 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 form an opinion rightaway 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 being invalidated".
In Aarti Singh V. State and Ors. 2000 [2] JCC [Delhi] 347, Hon'ble Delhi High Court has quashed the proceedings U/S 107 CrPC. In that case the dispute between the parties was in respect of property No. 110, Jor Bagh, Delhi. The respondent Ajay Narain had filed a civil suit against the petitioner Aarti Singh in respect of that property. The hon'ble High Court of Delhi held that, the members of the public were not affected by the acts, action or conduct of the parties.
It was further held by Hon'ble Delhi High Court :
Criminal Revisions No. 48/10 and 20/11 Page 6/9 7"The underlying object of the Section 107 CrPC is preventive and not penal. The sole object of initiating proceedings under Section 107 of the Code is to maintain public peace and tranquility and cannot be used as a handle in case of a private dispute between individuals, where there is no material of disturbance to public tranquility or public peace. In the facts and circumstances of the case, there was absolutely no justification for initiating proceedings under Section 107 of the Code initiated against the petitioners. Consequently, the proceedings under Section 107 of the Code initiated against the petitioners are liable to be quashed".
7 On 18.10.10 Ld. Special Executive Magistrate was of the opinion that both the parties i.e. Suman Kalia, Sushma and Kanchan and Jaya Sharma and Pankaj Sharma apprehend danger to their lives against each other. There was apprehension of breach of peace and disturbance to public tranquility from their prevailing activities. After carefully going through the Kalandra, other relevant documents on record and statement of I.O/SI D.P. Yadav, I have come to the conclusion that above respondents can commit breach of peace and disturb public tranquility. There are sufficient grounds to initiate proceedings. I, therefore, order that notices U/S 107/111 CrPC be sent to the all respondents asking them to show cause why they should not be ordered to execute personal bonds in the sum of Rs. 5000/- each with one surety each in like amount for Criminal Revisions No. 48/10 and 20/11 Page 7/9 8 keeping peace till the conclusion of the proceedings." 8 In the present case, a perusal of Trial Court Record shows that on the basis of DD No. 60B, two separate kalandras U/S 107/150 Cr.P.C were filed by the SHO, PS Roop Nagar. In the one kalandara, revisionists Jaya Sharma and Pankaj Sharma have been shown the complainants and the revisionists Suman Kalia, Kanchan and Sushma have been shown as accused. In the second kalandara, the revisionists Sushma, Kanchan and Suman Kalia have been shown as the complainants and revisionists Jaya Sharma and Pankaj Sharma have been shown as accused. Both the Kalandaras were filed by the SHO, Sarai Rohilla before Ld. Special Executive Magistrate, North. 9 The Trial Court Record also shows that Ld. Special Executive Magistrate had issued notices U/S 107/111 CrPC against the revisionists on the basis of Kalandra prepared by the police and the statement of SI Dinesh Prasad Yadav. A perusal of record further shows that Ld. Special Executive Magistrate did not form an independent opinion by holding an independent primary enquiry and issued showcause notices to revisionists on cyclostyled proformas wherein the relevant information has been filled in hand in the blanks, left in the cyclostyled proforma. Trial Court Record does not reflect any material on the basis of which Ld. Special Executive Magistrate had formed an opinion about the apprehension of breach of peace and Criminal Revisions No. 48/10 and 20/11 Page 8/9 9 public tranquility.
10 In the present case, obviously, the dispute was between the family members i.e. the married sisters'-in-law namely, Suman Kalia, Sushma and Kanchan Kaushik of revisionist Jaya Sharma. I am of the considered view that since the dispute between the revisionists was a private one, it cannot be said that there was any apprehension of breach of public peace and tranquility. There was no justification for initiating proceedings U/S 107 CrPC against the revisionists. In view of the settled law laid down by Hon'ble Delhi High Court in cases discussed above, I am of the considered view that the impugned order dated 18.10.10 passed by Ld. Special Executive Magistrate suffers from illegaility and is liable to be set aside. Accordingly, the impugned order passed by Ld. special Executive Magistrate is hereby set aside.
11 With these observations, criminal revision petition No. 48/10 and criminal revision petition No. 20/11 stand disposed of. Trial court record alongwith copy of this order be sent back. Revision files be consigned to Record Room.
Announced in the open court
on 16.05.11 (Smt. Bimla Kumari)
ASJ-II(North)/Tis Hazari,Delhi.
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