Delhi District Court
MuzibUrRehman vs The State on 16 February, 2012
IN THE COURT OF MS. SAVITA RAO, ADDITIONAL SESSIONS
JUDGE01, NORTH, DELHI.
Crl. Revision No. : 116/2011
File No. : 23/11
P.S. : Sarai Rohilla
DD No. : 7PP Dated 27.7.2011
U/s: 107/150 of Cr.P.C.
Case ID No.: 02401R0426402011
Concerned Court/Successor Court:
Sh. Raghubir Prasad, SEM, North, P.S. Sarai Rohilla, Delhi
In the matter of:
1. MuzibURRehman
2. AttaURRehman
3. ZiaUrRehman
4. Atiq - Ur Rehman
All S/o Late Ehsan Ullah
5. Smt. Aiysha W/o MuzibUr Rehman
6. Smt. Razia W/o Sh. AttaUrRehman
7. Smt. Aziba W/o Sh. ZiaUrRehman
8. Smt. Shabnam W/o Sh. AtiqUrRehman
All R/o A15/113A, DDA Flats, Inderlok, Delhi
........Petitioners
Vs.
1. The State
2. Mohd. Iqbal
Crl. Rev. No. 116/2011 1/6
3. Abdul Rab
4. Abdul Haq
5. Ahmed
6. Mazid S/o Sh. Abdul Haq
All R/o 432, Ph.1, Shehzada Bagh, Inderlok, Delhi.
..............Respondents
Date of Filing : 15.9.2011
Date of Arguments : 16.02.2012
Date of Order: 16.02.2012
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 Mohd. Iqbal & 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 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 Crl. Rev. No. 116/2011 2/6 civil dispute is also pending in the civil court.
3. However it was argued by Ld. Counsel for respondent that the order passed by Ld. SEM was only an interlocutory order against which the revision petition is not maintainable. Ld. Counsel for respondents also placed reliance upon 1989 Crl.J. 1872 Orissa High Court Baba Ji Sahoo Vs. State of Orissa wherein it was observed that " there is a clear distinction between issuing process upon delinquents asking them to execute interim bond during pendency of the proceeding u/s 107 and a notice requiring them to show cause , why they should not be asked to execute interim bond. In the latter case, no right of the party is decided. whereas in the former case, the magistrate had already made up his mind to require the delinquent to furnish bond, thereby affecting se".
4. However in plethora of judgments, the superior courts have 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. The order passed by Ld. SEM u/s 107/111 Cr.P.C. thereby requiring the delinquent to show cause was observed as an order affecting the rights of the parties. Reliance is placed upon 2008 (4) Crimes 734 (Del.) Satya Devi & Ors. Vs. State & Ors. and Madhu Limaye Vs. Ved Crl. Rev. No. 116/2011 3/6 Murti AIR 1971 SC 2481 wherein interalia it was emphasized that " The power which is conferred under this Chapter is distinguished from the power of detention by executive action under Article 22 of the Constitution. Although the order to execute a bond, issued before an offence is committed, has the appearance of an administrative order, in reality it is judicial in character primarily the provision enables the Magistrate to require the execution of a bond and not to detain the person. Detention results only on default of execution of such bond. It is, therefore, not apposite to characterize the provision as a law for detention contemplated by Article 22. The safeguards are therefore different. The person sought to be bound over has rights which the trial of summons case confers on an accused. The order is also capable of being questioned in superior courts. For this reason, at every step the law requires the Magistrate to state his reasons in writing, it would make his action purely administrative if he were to pass the order for an interim bond without entering upon the enquiry and at least prima facie inquiring into the truth of the information on which the order calling upon the person to show cause is based. Neither the scheme of the chapter nor the scheme of section 117 can bear such an interpretation ".
5. In the instant matter, 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. Not only this some of the petitioners rather themselves sustained the injuries. Crl. Rev. No. 116/2011 4/6 Their statements were also recorded. Four of the petitioners are women and have alleged the outraging of their modesty in the hands of respondents yet, they themselves have also been issued the notices by Ld. SEM. 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 abovesaid authorities are squarely applicable on the facts of instant case as well.
6. Further the Magistrate is required to state grounds sufficient for his forming the opinion which has also not been done in the instant matter. Reliance is placed 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 Crl. Rev. No. 116/2011 5/6 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. 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 16.02.2012 Crl. Rev. No. 116/2011 6/6