Delhi District Court
(8) Mukesh Kumar vs State Of Delhi on 14 March, 2018
IN THE COURT OF Dr. VIJAY KUMAR DAHIYA
SPECIAL JUDGE : CBI [PC ACT]:
DWARKA COURTS : NEW DELHI.
CR No.571/2017
(1) Smt. Sarika Kapoor,
W/o late Shri Shiv Kapoor
R/o Flat No.D265, Vijay Veer Awas,
Sector18 A, Dwarka, Delhi.
(2) Mrs. Anju Rawat,
W/o late Major Deepak Rawat
R/o Flat No.D255, Vijay Veer Awas,
Sector18 A, Dwarka, Delhi.
(3) Mrs. Bhawna Dwivedi,
W/o late Sh. C. V. Dwivedi
R/o Flat No.D252, Vijay Veer Awas,
Sector18 A, Dwarka, Delhi.
(4) Mrs. Saroj,
W/o Sh. Laxmi Narain
R/o Flat No.D258, Vijay Veer Awas,
Sector18 A, Dwarka, Delhi.
(5) Sh. Laxmi Narain,
R/o Flat No.D258, Vijay Veer Awas,
Sector18 A, Dwarka, Delhi.
(6) Mrs. Suman Choudhary,
R/o Flat No.D256, Vijay Veer Awas,
Sector18 A, Dwarka, Delhi.
(7) Sh. Shamshad Alam
CR-571/17 1/23
S/o Sh. Samkul Haq,
R/o E242 A, Gali No.71,
Mahavir Enclave, New Delhi,
New Delhi - 110 045.
(8) Mukesh Kumar,
S/o Ishwar Singh,
R/o Flat No.240,
Gali No.71,
Mahavir Enclave, New Delhi,
New Delhi - 110 045. ............ Petitioners
Versus
State of Delhi
Through SHO PS Dwarka North ..........Respondent
Date of Institution : 18.12.2017 Date of conclusion of arguments : 14.03.2018 Date of Order : 14.03.2018 O R D E R
1. Vide this order I shall dispose off this revision petition preferred against the impugned order dated 12.09.2017 passed by Ld. MM, Dwarka Court, Delhi, whereby Show Cause Notice has been issued to the petitioner u/s 111 CrPC.
2. Brief facts relevant for disposal of the present petition CR-571/17 2/23 are like this. SI Hans Raj Swami filed a kalandra stating therein that on 12.08.2017 he alongwith HC Vishal and Ct. Giriraj was on patrolling duty and present at Vijay Veer Awas, Sector18 A, Dwarka in connection with a local inquiry and it transpired that the first party has formed a separate Residents Welfare Association (RWA) and second party has also formed a RWA in the name of "DBlock Officers Flat". Both the parties are having dispute regarding residential welfare association of the society namely, Vijay Veer Awas, Sector18, Dwarka. Shamshad Alam who is a security guard appointed by DBlock RWA (second party) is flaring up this matter. Both the parties are levelling allegations and counter allegations against each other and further making complaints as well as PCR Calls. Both the parties are having rival claim to the RWA of the Apartments and a dispute may arise at any time and in future any cognizable offence can happen. The peace and tranquility of the area may be disturbed so kalandra for preventive action u/s 150/107 CrPC was filed before Special Executive Magistrate, SW, New Delhi. Ld. Executive Magistrate after going through the contents of the kalandra issued Show Cause Notice to the parties u/s 111 CrPC through impugned order.
3. Feeling aggrieved by the impugned order, present revision petition has been preferred by the petitioners.
CR-571/17 3/234. It has been contended by the Counsel for the petitioners that petitioner no.3 and 2 are the elected President and Secretary respectively of the RWA of the said Society and that some persons of the society were not paying maintenance charges and have also created a separate association. The association of the petitioners time and again requested the other members of the society to pay maintenance charges but they failed to pay the same. The petitioners have also made a written complaint to different authorities for redressal of their grievances but no action was taken. The petitioners also made a complaint to the police but no action was taken. The said members have also misbehaved with the other members of the RWA including the petitioners so much so that the petitioners have decided not only to resign from the office of RWA but also wanted to surrender their flats. The above said persons have also hatched a conspiracy to level false allegations of not providing assistance to them. One of such person namely, Ashok Sharma wrote a complaint to DCP through letter dated 05.06.2017. Smt. Manish Sharma w/o Sh. Ashok Sharma made a similar complaint dated 02.08.2017 to the DCP. Ld. IO has wrongly filed the kalandra against the petitioners, otherwise, there is no material on record to infer that there is any legal requirement for filing the kalandra before the CR-571/17 4/23 ld. Executive Magistrate. IO has visited the spot of incident on 12.08.2017 after a gap of three days and filed a kalandra as per his whims and notions. It is further argued that the present revision petition is maintainable against the impugned order. The civil dispute between the parties has been given criminal colours. It is further argued that there is no need to give notice u/s 107/151 unless there is apprehension of breach of peace. Reliance is placed upon the authority "Ramnarain Singh and others versus State of Bihar", AIR 1972 Supreme Court 2225.
5. The learned Additional Public Prosecutor appearing for the State/respondent has argued that the present petition is not maintainable as the impugned order is interlocutory order, so the petition should be dismissed.
6. I have heard the learned counsel for the petitioner, learned Additional Public Prosecutor for the respondent State and have gone through the trial court record and relevant revisions of law and the authority cited on behalf of the petitioner.
7. Section 107 of the Code is one of the Sections CR-571/17 5/23 contained in Chapter VIII of the Code dealing with security for keeping the peace and good behaviour. The Section is intended to prevent local clashes between person over property or other objects of disagreement. It is preventive and not punitive;in other words, the Section is not intended for the punishment of past offences but for the prevention of acts that may amount to or lead to a breach of the peace hereafter. As the matter affects the liberty of the subject who might not have been found guilty of an offence, it is essential that the power should be exercised strictly in accordance with law. As the proceedings under the Section are not meant to be penal provisions for dealing with any offences but only for maintaining public peace and tranquility not only expeditious action is called for but prompt dealing with the matter is also absolutely necessary.
8. It is clear from the language of Section 107 that a Magistrate has no jurisdiction under the Section to proceed against any person where there is no information against him. But there is no restriction as to the source of the information on which a Magistrate can act under the Section. Therefore, the Magistrate can draw up proceedings on the basis of a police report or the report of a Subordinate Magistrate or the information given by a private individual. Proceedings can also be drawn up on the CR-571/17 6/23 basis of information derived from a previous trial of the person proceeded against wherein he was acquitted. But the information on which the proceeding is drawn up must be clear and definite so as to afford notice to the person proceeded against of what he is to meet. It is quite often found in proceedings under the Section that the aggrieved party first approaches the police with his complaint on which the local police officer enters upon inquiry and prepares a report and submits it to the Executive Magistrate recommending action under Section 107 of the Code.
9. Though it is within the powers of a Magistrate to refuse to issue process on a report made by a police officer even though the police officer is satisfied that there is an imminent danger to the public peace and makes a report to that effect to the Court, a Magistrate should not ordinarily brush aside the report because it is the duty of both Magistrate and the police to see that nobody breaks the law. It has however to be borne in mind that in such a case it was for the magistrate to satisfy himself about the credibility of the police report. For the purpose he may hold such inquiry as he deems necessary.
10. But it cannot be laid down as a general principle that in all cases where the Magistrate receives the police report he must embark upon further inquiry before issuing the process.
CR-571/17 7/23The necessity for further inquiry depends on the facts and circumstances of the case, the nature of informations contained in the police report and other relevant matters. To hold otherwise will, in effect, amount to saying that the Magistrate has no jurisdiction to issue process in a proceeding under Section 107 on a police report and should always without exception, hold a further inquiry before issuing process. This not only goes against the language of the Section but is likely to defeat the very purpose which the Section is intended to serve.
11. There is clear distinction between issuing process to the delinquents asking them to execute interim bond during pendency of the proceeding under Sec.107 and a notice requiring them to show cause why they would not be asked to execute interim bond. In the latter case no right of the party is decided. The delinquent has the opportunity to file his reply to the notice and can persuade the Magistrate to drop the proposal to require him to furnish interim bond. In the former case the Magistrate has already made up his mind to require the delinquent to furnish bond thereby affecting his rights, as noticed earlier, the delinquents have approached this Court on getting the notice requiring them to appear and show cause why they should not execute bonds.
CR-571/17 8/2312. The provision of S. 107 CrPC have been explained by the Hon;ble Apex Court in Ramnarain Singh v. State of BiharAIR 1972 Supreme Court 2225 in following terms :
"Under Section 107 of the Code of Criminal Procedure, a Presidency Magistrate, District Magistrate, Subdivisional Magistrate or Magistrate of the first class may require a person to show cause why he should not be ordered to execute a bond, with or without sureties, for keeping the peace for a period not exceeding one year as the Magistrate thinks fit to fix, if such Magistrate is informed that the said person is likely to commit breach or disturb public tranquility or to do any wrongful act that may occasion breach of peace, or disturb public tranquility and if the Magistrate is further of the opinion that there is sufficient ground of proceeding against that person. The underlying object of the section is preventive and not penal. The section is designed to enable the magistrate to take measures with a view to prevent commission of offences involving breach of peace or disturbance of public tranquility. Wide powers have been conferred on the magistrates specified in this section and as the matter affects the liberty of the subject who has not been found guilty of an offence, it is essential that the power should be exercised strictly in accordance with law".
13. The present petition should first pass the test of maintainability before the rival contentions of parties are dealt CR-571/17 9/23 with. A short question which deserves consideration in this revision petition is as to whether the show cause notice issued under S. 107/111 CrPC is an interlocutory order or not for the maintainability of the present revision petition.
14. The Code of Criminal Procedure lays down specific procedure for inquiry and trial of cases of different nature. While handling an inquiry or a trial under that Code a Court is called upon to determine several questions before passing an order either discharging the accused or convicting or acquitting him. The proceedings of the subordinate courts determining such questions were subject to revision by the Sessions Judge or the High Court under Sections 435 to 439, Cr.P.C. (1898). Under the New Code of 1974 the position has become different because its Section 397 (2) precludes courts of revision from exercising jurisdiction conferred by Section 397(1) of the Code where the said jurisdiction is invoked with respect to an interlocutory order.
15. Therefore, it is well settled that no revision lies from an interlocutory order. In this regard, Section 397 (2) of the Code of Criminal Procedure is worth referring to here and the same is as under:
(2) The powers of revision conferred by sub section (I) shall not be exercised in relation to CR-571/17 10/23 any interlocutory order passed in any appeal, inquiry, trial or other proceeding.
In a case of Smt. Parmeshwari Devi Vs. The State [1977] 2 SCR 160 the scope of S. 397 (2) of the Criminal Procedure Code, was discussed as under :
"The purpose of S. 397 of the new Code is to keep such an order outside the purview of the power of revision sos that the enquiry or trial may proceed without delay. This is not likely to prejudice the aggrieved party for it can always challenge it in due course, if the final order goes against it. But it does not follow that if the order is directed against a person who is not a party to the enquiry or trial and he will have no opportunity to challenge it after a final order is made affecting the parties concerned, he cannot apply for its revision even if it is directed against him and adversely affects his rights. An interlocutory order, though not conclusive of the main dispute may be conclusive as to the subordinate matter with which it deals. It may thus be conclusive with reference to the stage at which it is made, and it may also be conclusive as to a person, who is not a party to the enquiry or trial, against whom it is directed.
In a case of V.S. Shukla v. State through C.B.I., : 1980 CriLJ 690 (SC), the meaning of words "interlocutory order" has been discussed as follows :CR-571/17 11/23
"The word 'interlocutory order' used in S.397(2) of the Code relates to various stages of the trial, namely, appeal, inquiry, trial or any other proceeding. The object seems to be cut down the delays in stages through which a criminal case passes before it culminates in an acquittal, discharge or conviction. Having regard to the very large ambit and range of the Code, the expression 'interlocutory order' would have to be given a broad meaning so as to achieve the object of the Act without disturbing or interfering with the fairness of the trial. The term 'interlocutory order' used in the Code of Criminal Procedure has to be given a very liberal construction in favour of the accused in order to ensure complete fairness of the trial because the bar contained in S. 397(3) of the Code would apply to a variety of cases coming up before the courts not only being offences under the Penal Code but under numerous Acts. The revisional power of the High Court or the Sessions Judge could be attracted if the order was not purely interlocutory but intermediate or quasi final.
The same, however, could not be said of the Special Courts Act which was meant to cover only specified number of crimes and criminals and the objective attained was quickest despatch and speediest disposal. The dominant purpose of the Act is to achieve not only speedy determination but a determination with the utmost despatch. Therefore, the provisions of the Act CR-571/17 12/23 must be interpreted so as to eliminate all possible avenue of delay or means of adopting dilatory tactics by plugging every possible loophole in the Act through which the disposal of the case may be delayed.
16. In order to construe the term 'interlocutory', it has to be construed in contradistinction to or in contrast with a final order. In other words, the words 'not a final order' must necessarily mean an interlocutory order or an intermediate order. Thus, the expression 'interlocutory order' is to be understood and taken to mean converse of the term 'final order'. An interlocutory order merely decides some point or matter essential to the progress of the suit or collateral to the issues sought but not a final decision or judgment on the matter in issue. An intermediate order is one which is made between the commencement of an action and the entry of the judgment. An order framing of the charge being an intermediate order falls squarely within the ordinary and natural meaning of the term 'interlocutory order' as used in S.11(1) of the Act."
16. In a case of "Hasmuch J. Jhaveri v. Shella Dadlani" (181)83BOMLR196 considering the earlier decisions of the Lordships of the Hon'ble Supreme Court, what is the scope of interlocutory order, in detail, has been discussed, which is CR-571/17 13/23 reproduced as under :
"Bearing in mind the guidelines enunciated in Amar Nath v. State of Haryana, ;1977 CriLJ 1891, Madhu Limaye v. State of Maharashtra, 1978CriLJ165, V.C. Shukla v. State , 1980 CriLJ1690 and Mohanlal v. State of Gujarat, 1968 CriLJ 876, the scheme of the Code, the object for enacting or incorporating the said term "interlocutory order" in Section 397 (2) and the basic concept of the term, the following propositions would logically follow : (1) That the term "interlocutory order" has been used in a restricted sense and not in a broad or realistic sense.
(2) That it merely denotes an order of purely interim or temporary nature. The emphasis in this category is on the word "purely", which would again highlight the concept that the nature of the order must be pure and simple temporary or interim in character and ostensibly deceptive appearance of a temporary character should not be confused with the real and outright temporary nature.
(3) Such orders pertaining to some matters in the proceeding which merely and purely assume the character of stepsinaid of the proceeding can be embraced by the said terminology, which again affords a pointer about the nature and categories of the orders that are purely temporary or interim without actually affecting or even touching CR-571/17 14/23 substantially any right or material aspect of the proceeding.
(4) Though a stamp of finality to the proceeding or termination of the proceeding may be quite a relevant and important consideration, yet it is not a sole criterion of the test in that behalf. (5) The potential capacity to terminate proceeding or to give it a label of finality is also not the only and conclusive criterion, though it by itself is a relevant feature.
(6) The fact that the main proceeding is kept alive that does not ipso facto give a stamp to several such orders as "interlocutory order".
(7) It is not permissible to equate the expression "interlocutory order" as invariably being the converse of the term "final order".
(8) An order of moment would obviously be lifted out of the sweep of the said terminology.
(9) In respective of the order bearing stamp of finality, there may be an intervening stage which can be called as 'intermediate stage' at which an order may be passed which in turn may be called as "intermediate order", which neither gives the finality to the proceeding nor is purely interim or temporary and as such is not an interlocutory order, but would fall in between and in certain cases such order can be said to be not interlocutory.
CR-571/17 15/23(10) An order which - (a) decides; or (b) even touches the important rights of liabilities of the parties; cannot be said to be interlocutory. (11) An order which - (a) substantially affects the rights of the parties or (b) decides certain rights of the parties; cannot be terms as 'interlocutory'. (12) An order which - (a) adjudicates; or (b) even affects (i) either the rights of the parties;
(ii) even any particular aspect of the trial or the proceeding cannot be also termed as 'interlocutory order'.
Applying various tests laid down in the said guidelines, it would be manifest that an order under section 146 of the Code, directing attachment and sealing of the flat can never be embraced by the term "interlocutory order".
17. As to whether, the show cause notice issued under S. 107/111 CrPC is an interim order, came up before the Hon'ble High Court of Allahabad in Bindbasni v. State of U.P.1976 CrI.L.J. 1660 (All)(DB), wherein it was observed as under :
"12. To sum up the prepositions laid down by the above authorities, the test in determining the final or interlocutory nature of an order is one and the same both in civil as well as criminal cases. That test is whether or not the order in question finally disposes of the rights of the parties or leaves them to be determined by the Court in the ordinary way.CR-571/17 16/23
If the order does not finally dispose of the rights of the parties and the matters in dispute and leaves the suit or case still alive suit in which the rights of the parties have to be determined, the order will remain interlocutory irrespective of the stage at which it is passed and also irrespective of the conclusive decision of the subordinate matters with which it deals. Applying this test to an order passed by a Magistrate under Sections 107/111, Cr.P.C. that order is nothing but interlocutory because it is passed when the Magistrate is of opinion that the information received by him to the effect that any person was likely to commit breach of peace or to disturb public tranquility etc. was credible. Acting upon that information the Magistrate simply calls upon the person concerned to show cause why he should not be bound down in the prescribed manner. Neither rights of the parties are decided at that stage nor the matter in dispute is finally disposed of. That order is simply procedural in nature. It only gives a notice to the party concerned that there is such and such allegation against him and he should turn up before the Magistrate to clarify his position. Even the correctness of the information received by the Magistrate is not finally decided at that stage nor it is decided whether or not the party concerned should be bound down. Those points are to be decided when the case reaches the stage of S.116, Cr.P.C. in Bhupinder Kumar v. State (1975 Cr.L.J. CR-571/17 17/23 1185) (Delhi) an order framing a charge in the case was held to be an interlocutory order because it does not decide the question of guilt or the innocence of the accused and simply puts the accused on notice as to the offence for which he was tried. Upon the same analogy an order passed under Sections 107/111, Cr.P.C. is an interlocutory order. "
18. In para 13 it was further observed :
In the case of Trijugi Narain Shukla v. State of U.P. ((1975) 1 All ER 627) a learned Single Judge of this Court held that an order passed under Sections 107/111, Cr.P.C. by a Magistrate was not interlocutory. The reasoning given by the learned Judge in support of that finding is as follows :
"An interlocutory order means an order which is passed after the proceedings have commenced and before the proceedings have terminated. The notice as far as the applicant is concerned is the first step in the proceeding. The proceeding under Section 107 are commenced, no doubt, so far as the Magistrate is concerned, with the information received by him, but so far as the citizen is concerned it commenced with the issue of notice to him to show cause. The notice must therefore be deemed to be preliminary step and not an interlocutory step in the proceedings. Further a notice of the nature issued by the learned Magistrate cannot be deemed to be an interlocutory order as it is of the nature of a show cause notice only. The preliminary CR-571/17 18/23 objection is accordingly overruled."
19. It was further observed in para 14 :
"We find it difficult to agree with the above noted reasoning. We have already referred to the authorities wherein it has been held that, every order passed during the proceedings of a case, if it does not finally decide the case, is interlocutory. On that account no distinction can be made amongst different interlocutory orders on the ground that the one is passed at the preliminary stage of the proceedings whereas the other is passed at a later stage. In our opinion every order passed in a case or proceedings which does not finally decide the rights of the parties therein is interlocutory and on that account an order by a Magistrate under Sections 107/111, Cr.P.C. is nothing but an interlocutory order."
20. In para 15 it was further observed :
"Reliance was placed on behalf of the revisionists upon a Division Bench case of Orissa High Court in Bhima Naik v. State (1975 Cri LJ 1923) (Ori.). In that case the question for consideration was whether or not provisions of Section 397(2), Cr.P.C. (new) applied to a preliminary order passed under Section 107, Cr.P.C. as it was an interlocutory order. After discussing the matter at length the Court came to the conclusion that an order passed by a Magistrate under Section 107/111 Cr.P.C. was an interlocutory order for the purposes of Sec.CR-571/17 19/23
397 (2), Cr.P.C. It was, however, further laid down in that authority that interlocutory orders passed without jurisdiction are nullities and are nonest in the eye of law can be interfered with in revision under Section 401, Cr.P.C. and in appropriate cases under Section 482, Cr.P.C. but interlocutory order passed within jurisdiction could not be interfered with under any of those Sections as well. We are not called upon to express any opinion on this observation because the same was made with reference to the particular circumstances of the case wherein the impugned order was apparently passed by the Magistrate concerned without having any jurisdiction to pass it. The order involved in the present revision is not of that category. Here the Magistrate concerned had jurisdiction to proceed with the matter and he has passed the order under revision in exercise of that jurisdiction and after coming to the conclusion that the information received by him was credible. The order which is involved in the present revision is, therefore, not the one which may be said to have been passed by the Magistrate concerned without jurisdiction. All that we have to see in the present revision is whether or not the aforesaid order is interlocutory to which the provisions of Section 397(2),Cr.P.C. are attracted. In our opinion such an order is an interlocutory order and Section 397 (2), Cr.P.C. which impose an absolute bar upon exercise of revisional jurisdiction by the High Court and the Sessions Judge with respect to interlocutory orders passed by a subordinate court, bars the present revision."CR-571/17 20/23
21. Furthermore, the Orissa High Court in Babaji Sahoo v. State of Orissa1989 CRI.L.J. 1872 (ORI) observed as under:
"5. Examining the facts of the present case in the light of the discussions in the foregoing paragraphs, it is clear that the proceeding was initiated by the learned Magistrate on getting the report from the Officerincharge of Kakatpur police Station. The notice clearly specifies the nature of the allegations which are required to be met by the delinquents, the amount for which the bond was to be executed by them, the number of sureties and the period of the bond. As such, the notice contained all relevant particulars and it cannot be said to be a vague and indefinite one to which the delinquents would have difficulty in filing their show case. Further, from the prosecution report submitted by the Officerincharge of the Police Station which is available in the lower court record it appears that the report is a fairly detailed one giving particular instances of overt acts, the controversy between the parties which led the police officer to believe that there is likelihood of breach of the peace. The dispute, as it appears from the report and also the notice is over possession of some Govt. land. On perusal of this report the learned Magistrate felt satisfied that there was apprehension of breach of the peace and action was necessary to be taken against the delinquents under S.107 of the Code. There is nothing in the record and the learned counsel for the petitioners has not been CR-571/17 21/23 able to point out any circumstance in particular to suggest that the order of the learned Magistrate initiating the proceeding was passed mechanically without application of his mind. From the very nature of the informations and the details given in the police report if he had no doubt about its credibility and felt that the material was sufficient to initiate proceeding and issue process to the delinquents, in my view, he committed on serious illegality or irregularity and it cannot be said that continuing the proceeding will be an abuse of the process of court. Further, as discussed earlier, the petitioners have only been noticed to appear and file their show cause before the learned Magistrate. The order is therefore a purely interlocutory one and does not seriously prejudice the petitioners. Therefore no interference with the proceeding at this stage in exercise of the inherent jurisdiction of this Court is called for."
22. In view of the foregoing discussion, it is manifest that the show cause notice issued under S.107/111 CrPC by the Executive Magistrate is an interlocutory order and same is not amenable to revisional jurisdiction of this court. The same should be the position of order of Special Executive Magistrate directing the issuance of show cause notice under section 107/111 CrPC. Therefore, the present revision petition is not maintainable and the same warrants dismissal. The petitioner should appear before CR-571/17 22/23 learned Special Executive Magistrate and show cause to get an appropriate order as per law in the matter. Ramnarain Singh's case (supra) does not support the petitioner on the question of maintainability of the present revision petition filed against an interlocutory order. There is no need to got into other questions raised on behalf of petitioner, the petition being not maintainable.
23. In view of the foregoing discussion, the present revision petition is liable to be dismissed. The trial court record be returned along with the copy of this order. The revision file be consigned to the record room.
Needless to say that nothing stated herein shall tantamount to expression of my opinion on the merits of this case.
Copy of this order be sent to the ld. trial court for the purposes of record and this revision file be consigned to record room.
Announced in the open court today, VIJAY Digitally signed
by VIJAY KUMAR
On 14th Day of March, 2018. KUMAR DAHIYA
Date: 2018.03.20
DAHIYA 13:08:24 +0530
(Dr. V.K. DAHIYA)
SPECIAL JUDGE : CBI (PC ACT)
DWARKA COURTS/14.03.2018
CR-571/17 23/23