Delhi District Court
Smt. Zakia Ali W/O Late Sh. Gulzar Ali vs The State on 10 February, 2012
IN THE COURT OF MS. SAVITA RAO, ADDITIONAL SESSIONS
JUDGE01, NORTH, DELHI.
Crl. Revision No. : 12/2012
File No. : 40/11
P.S. : Sarai Rohilla
DD No. : 33A Dated 16.12.2011
U/s: 107/150 of Cr.P.C.
Case ID No.: 02401R0041692012
Concerned Court/Successor Court:
Sh. Raghubir Prasad, SEM, North, P.S. Sarai Rohilla, Delhi
In the matter of:
1. Smt. Zakia Ali W/o Late Sh. Gulzar Ali
2. Ms. Nida Ali D/o Late Sh. Gulzar Ali
3. Ms. Sanya Ali D/o Late Sh. Gulzar Ali
4. Ms. Yusra Ali D/o Late Sh. Gulzar Ali
All R/o : 9824A/15, Sarai Rohilla
New Rohtak Road, Delhi
........Petitioners
Vs.
1. The State
2. Mohd. Ali
3. Munawar Ali
4. Javed Ali
Crl. Rev. No. 12/2012 1/6
5. Imran Ali
Respondents no. 2 to 5 are sons of Late Dr. Mohd. Asghar Ali
(All brothers in law of Petitioner no. 1)
Residents of
9824A/15, Sarai Rohilla, New Rohtak Road
..............Respondents
Date of Filing : 28.1.2012
Date of Arguments : 10.02.2012
Date of Order: 10.02.2012
O R D E R
1. This is a revision petition filed on behalf of all the petitioners aggrieved by the order of Ld. Special Executive Magistrate whereby notices u/s 107/111 Cr.P.C. were issued upon the petitioners on the allegations that they have inimical terms with Mohammad Ali & Ors. which is the other party, on issue of property and that the petitioners have also threatened the other party for dire consequences and likely to cause breach of peace with further allegations that there is very serious tension between the petitioners and other party and are likely to do a wrongful act which may result in breach of peace within the local limit of jurisdiction of Ld. SEM based upon which and the report through SHO, Ld. SEM concluded that there are sufficient grounds for initiating proceedings against the petitioners.
2. Challenge to the impugned order has been made on the ground that the Ld. SEM has not applied his mind and the summons have been Crl. Rev. No. 12/2012 2/6 issued in a very mechanical manner without following due process of law. It is also stated that the petitioners have not committed any act which may result or which may amount to breach of peace or public tranquility and even otherwise the dispute between the parties is a dispute over the issue of property pertaining to which a civil dispute is also pending in the civil court. The respondents 2 to 5 are the brothers in law of petitioner no.1. The petitioners and respondents no. 2 to 5 are residing in the same premises whereas the husband of petitioner no.1 has already expired, therefore she is stated to be facing problems at the hands of respondents no. 2 to 5. The petitioner no.1 has also filed a petition under Domestic Violence Act against respondents no. 2 to 5 and vide order dated 4.11.2011, respondents no. 2 to 5 have been restrained from dispossessing the petitioners from the said house.
3. It may be noted that the powers vested in Executive Magistrate have to be exercised only in cases of serious nature and not in cases involving trivial quarrels, since the proceedings u/s 107 Cr.P.C. and 150 Cr.P.C. are of preventive nature and impinge upon the liberty of an individual which is of paramount importance and value and fundamental rights guaranteed under the constitution, it is thus the imperative duty of the court seized of such proceedings to see that all the relevant provision of law touching those proceedings are strictly complied with and the liberty of the citizens is not allowed to be jeopardized on frivolous and baseless allegations.
Crl. Rev. No. 12/2012 3/6
4. I agree with the contention of counsel for petitioners that only general and vague allegations have been mentioned in the notices without any specific instances which may lead to the conclusion that the petitioners were likely to do any wrongful act which may result into breach of peace or which may disturb public tranquility. The perusal of record reveals that it was basically the dispute between two private parties which led Ld. SEM to conclude with respect to infringement of public peace. Reliance is placed upon 1996 JCC 495 Ram Prakash & Anr. Vs. State and upon 1989 Crl. J. 1253 Indravadan Killawalla & Ors. Vs. State of Maharashtra & Ors. wherein interalia it was observed that "
where the reports with respect to the allegations against the parties were of trifling incidents and more in the nature of trial of nerves between two parties determined to get at each other's throats, to check this sort of behaviour is not the object of section 107 of Cr.P.C. . Two individuals have nothing to do with public tranquility or breach of peace which dispute is purely of civil nature." Reliance is also placed upon 83 (2000) Delhi Law Times 219 Smt. Aarti Singh & Anr. Vs. State & Others wherein there was a dispute between parties in respect of a property. The civil suit between the parties were also pending. It was observed that "
members of public not effected by alleged acts , action or conduct of petitioners. Underlying object of section 107 is preventive and not penal. It cannot be used as handle in case of private dispute between individuals where there is no material of disturbance to public tranquility ". The Crl. Rev. No. 12/2012 4/6 abovesaid authorities are squarely applicable on the facts of instant case as well.
5. I also agree with the contention of counsel for the petitioners that the Magistrate is to state grounds sufficient for his forming the opinion which has also not been done in the instant matter while placing reliance upon Crl. Rev. no. 432 of 1972 Dhani Ram Vs. State, Crl. Misc. No. 4416M of 1984 Mukandi Lal & Ors. Vs. State of Haryana & Ors. and upon 1990 Crl. L. J. 40 Tavinder Kumar & another Vs. State wherein interalia it was observed that " the Executive Magistrate has to record his satisfaction with regard to the facts as to whether there exists any apprehension of breach of peace at the hands of parties before directing the issuance of notices upon them. Even in the notices prepared u/s 111 Cr.P.C. the substance of such allegations against them is required to be incorporated which must not be the vague facts". In the instant matter also as already observed, only the vague and general allegations have been leveled against the petitioners and the case of petitioners also squarely falls in the same category as is described by their Lordships in abovesaid authorities. It is rather noticed in number of petitions filed before this court that the notice u/s 107/111 Cr.P.C. has been issued upon the parties in a printed proforma having the same contents which is rather sufficient to conclude that the mechanical procedure is being adopted by Ld. SEM without any application of mind. It is also seen that on a complaint by one of the parties alleging the Crl. Rev. No. 12/2012 5/6 commission of some offence against the other party, instead of taking the appropriate action on the complaint, both the parties are being booked and are being issued the notice u/s 107/111 Cr.P.C. Apparently Ld. SEM has not followed the provisions of law, the notices u/s 107/111 Cr.P.C. seem to have been issued without any justification for initiating proceedings against the petitioners, hence cannot be sustained. Ld. SEM also to consider the abovesaid observations even in the other cases of similar nature, instead of following the mechanical process. Revision petition is accordingly allowed. The order for issuance of notices against the petitioners is set aside and they are discharged. TCR alongwith copy of this order be sent to the trial court. Revision file be consigned to Record Room.
(SAVITA RAO) Additional Sessions Judge01 (North) Tis Hazari Courts, Delhi Announced in the open court on 10.02.2012 Crl. Rev. No. 12/2012 6/6