Delhi District Court
Mukesh Kumar Pal vs The State Nct Of Delhi on 2 December, 2024
IN THE COURT OF SH. AKASH JAIN
ADDITIONAL SESSIONS JUDGE-04
EAST DISTRICT, KARKARDOOMA COURTS: DELHI
CNR No. DLET01-000295-2024
CR No. 15/2024
Sh. Mukesh Kumar Pal
S/o Sh. Sher Bahadur
R/o C-2/99-100, 2nd Floor
New Ashok Nagar, Delhi-110096
...... Petitioner
Versus
1. The State (NCT of Delhi)
2. Exexutive Magistrate (Mayur Vihar)
Office of District Magistrate (East)
L. M. Bundh Marg, Shastri Nagar, Delhi-110031
3. Sumit Kumar
S/o Sh. Suresh Kumar
R/o C-2/299-100, 4th Floor
New Ashok Nagar, Delhi-110096
...... Respondents
Date of Institution : 19.01.2024
Date of reserving Order : 09.10.2024
Date of pronouncement : 02.12.2024
ORDER
1. By way of the present revision petition under Section 397 of The Code of Criminal Procedure, 1973 (hereinafter referred to as 'Cr.P.C'), Sh. Mukesh Kumar Pal (hereinafter referred to as 'petitioner') has assailed the impugned order dated 08.12.2023 passed by Ld. Executive Magistrate, Mayur Vihar (hereinafter referred to as 'respondent no. 2') vide which the AKASH Digitally signed by AKASH JAIN JAIN Date: 2024.12.06 18:02:35 +0530 CR No. 15/2024 Mukesh Kumar Pal v. State & Ors. Page No:- 1 of 7 petitioner was ordered to be sent to jail for 7 days for non- compliance of orders passed under Section 110 of The Code of Criminal Procedure (hereinafter referred to as 'Cr.P.C.'). The petitioner has further prayed to quash entire proceedings initiated against him before respondent no. 2 on the basis of complaint of Sh. Sumit Kumar (hereinafter referred to as 'respondent no. 3').
2. Briefly stated, the parents and younger brother of respondent no. 3 are residing at top floor of property bearing no. C-2/99-100, New Ashok Nagar, Delhi-110096 and respondent no. 3 is living separately in B-Block, New Ashok Nagar, Delhi, while petitioner is residing at 2nd Floor of the said property. There was apparently dispute between the petitioner and family members of respondent no. 3 regarding alleged non-payment of maintenance amount by the petitioner and raising construction on the roof of the said building by brother of respondent no. 3 and one neighbour namely, Gopal Khemka in the year 2022. Both the parties had levelled allegations against each other and filed complaints before competent authorities on several occasions. The respondent no. 3 also lodged complaints against petitioner to the office of respondent no. 2 vide letters dated 31.05.2023, 01.07.2023, 03.07.2023 and 04.09.2023. Proceedings accordingly commenced at the office of respondent no. 2 against the petitioner. Respondent no. 2 reportedly directed petitioner to furnish surety bond for a sum of Rs. 2,00,000/- for the period of 2 years in terms of Section 110 Cr.P.C., however, in the absence of furnishing the said bond, petitioner was ordered to be sent to jail for a period of 7 days by respondent no. 2. AKASH Digitally signed by AKASH JAIN Date: 2024.12.06 JAIN 18:02:40 +0530 CR No. 15/2024 Mukesh Kumar Pal v. State & Ors. Page No:- 2 of 7
3. Being aggrieved of the aforesaid impugned order, the present revision petition is filed by the petitioner on inter alia following grounds:-
(i) That the impugned proceedings dated 08.12.2023 are bad in law and are not legally sustainable;
(ii) That respondent no. 2 initiated proceedings under Section 110 Cr.P.C. against the petitioner without giving opportunity to him to present his defence;
(iii) That respondent no. 2 failed to follow due procedure of law in conducting proceedings under Section 110 Cr.P.C. and arbitrarily directed the petitioner to furnish surety bond;
(iv) That respondent no. 2 imposed excessive surety amount upon the petitioner and sent him behind the bars arbitrarily and in violation of principles of natural justice.
4. Per contra, it is argued on behalf of respondents that the order passed by respondent no. 2 was just, reasonable and does not suffer from any legal infirmity as the petitioner himself refused to sign and furnish surety bond to the office of respondent no. 2 despite grant of sufficient opportunity. It is argued that the petitioner was indulging in frequent quarrels with the occupants of the building in which both the petitioner and respondent no. 3 are residing and was constantly committing breach of peace, as such, the impugned proceedings were rightfully initiated against the petitioner by respondent no. 3.
5. In the case of Asha Pant v. State and Ors., 2008 (2) JCC 984, Hon'ble Supreme Court of India summed up the procedure to be followed by the Magistrate while proceeding under Section 107 and 111 of the Code in the following manner:
AKASH Digitally AKASH JAIN signed by JAIN Date: 2024.12.06 18:02:45 +0530 CR No. 15/2024 Mukesh Kumar Pal v. State & Ors. Page No:- 3 of 7 ".... The sum total of the above discussion is that 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 an 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 to 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 neighbors 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...."
6. In the present case as well, dispute is essentially between the neighbours of same building regarding payment of maintenance dues and some construction activity on the roof of the building. However, without conducting any preliminary enquiry or considering reply of petitioner the respondent no. 2 proceeded to pass order under Section 110 Cr.P.C. enjoining petitioner to furnish security bond for 2 years.
7. There are several other lapses on the part of respondent no. 2 in conducting proceedings under Section 110 Cr.P.C. against petitioner. On receipt of complaints of respondent no. 3, notices were reportedly issued to petitioner to appear before the office of respondent no. 2, however, neither the record of such AKASH Digitally signed by AKASH JAIN JAIN Date: 2024.12.06 18:02:49 +0530 CR No. 15/2024 Mukesh Kumar Pal v. State & Ors. Page No:- 4 of 7 proceedings nor the proof of delivery of such notice prior to 25.10.2023 form part of record. The next date fixed for hearing before respondent no. 2 was 27.10.2023, however, no hearing took place on said date. As per available record from the office of respondent no. 2, the proceedings thereafter, took place on 22.11.2023 and NBWs were ordered to be issued against the petitioner for 23.11.2023. The matter thereafter, was not heard on 23.11.2023 and next date fixed for hearing was 06.12.2023. On 06.12.2023, the petitioner appeared and stated that he had already filed reply to the allegations and the complaints filed against him by respondent no. 3 and other complainants. However, the respondent no. 2 did not care to consider the said reply and unilaterally directed the petitioner to furnish surety bond for an excessive sum of Rs.2,00,000/- for a period of 2 years on the basis of allegations of respondent no. 3. Later on, in lieu of failure of petitioner to furnish the surety bond, the petitioner was ordered to be sent to jail for 7 days on 08.12.2023.
8. This Court finds that the order dated 06.12.2023 passed by respondent no. 2 requiring petitioner to furnish surety bond to the tune of Rs. 2,00,000/- for a period of 2 years in terms of Section 110 Cr.P.C. is bad in law as the Magistrate did not carry out any preliminary inquiry into the allegations of respondent no. 3 and merely passed an order requiring petitioner to furnish security bond in lieu of allegations of respondent no. 3 without giving an opportunity of being heard to the petitioner. Moreover, while passing an order under Section 110 Cr.P.C. respondent no. 2 imposed exorbitant surety amount of Rs. 2,00,000/- which is both AKASH Digitally signed by AKASH JAIN JAIN Date: 2024.12.06 18:02:55 +0530 CR No. 15/2024 Mukesh Kumar Pal v. State & Ors. Page No:- 5 of 7 arbitrary and unreasonable. It has been held time and again by Hon'ble Superior Courts that liberty of an individual cannot be curtailed in the guise of procedural compliance unless the conditions imposed are reasonable and consistent with the facts of the case or nature of offence.
9. It is evident in the present case that onerous bail conditions were imposed by respondent no. 2 upon petitioner which he could not comply in short span of 2 days, as a result of which, he was sent to custody for alleged act of breach of peace. Section 116(3)(b) Cr.P.C. categorically provides that conditions of surety bond in respect of Section 110 Cr.P.C. as regards number and amount of sureties should not be onerous. Further, it is well settled that bail conditions must reflect socio-economic realities of accused and should not serve as indirect means of detaining him.
10. In the light of foregoing discussion, the Court holds that impugned orders dated 06.12.2023 and 08.12.2023 vide which petitioner was directed to furnish surety bond to the tune of Rs.2,00,000/- for 2 years and later on was ordered to be taken into custody cannot be sustained. Hence, the same are set-aside. The present revision petition is accordingly allowed in terms thereof.
11. Copy of this order along with original record be sent back to Ld. Executive Magistrate for information and records.
Digitally signed by AKASH JAIN AKASH Date:
JAIN 2024.12.06
18:02:59
+0530
CR No. 15/2024 Mukesh Kumar Pal v. State & Ors. Page No:- 6 of 7
12. File be consigned to record room after due compliance.
Digitally signed by AKASH JAIN AKASH Date:
JAIN 2024.12.06
18:03:04
+0530
ANNOUNCED IN OPEN (AKASH JAIN)
COURT ON 02.12.2024 ASJ-04, EAST DISTRICT
KARKARDOOMA COURTS
DELHI
This order contains 07 pages and each paper is signed by me. Digitally signed by AKASH AKASH JAIN Date:
JAIN 2024.12.06
18:03:07
+0530
(AKASH JAIN)
ASJ-04, EAST DISTRICT
KARKARDOOMA COURTS
DELHI
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