Delhi District Court
Joginder Singh vs The State (Govt. Of Nct Of Delhi) on 10 February, 2023
IN THE COURT OF SH. SANJAY SHARMA-II : ADDL. SESSIONS JUDGE-03,
(CENTRAL): TIS HAZARI COURTS, DELHI
Criminal Revision No. 245/2022
CNR No.: DLCT01-007467-2022
1. Joginder Singh
S/o Late Murli Singh
2. Pushpa
W/o Sh. Joginder Singh
3. Phillip Massey
S/o Sh. Joginder Singh
All Residents of:
A-6, Christian Colony, Patel Chest
near Delhi University, opp. PS Maurice Nagar
Delhi-110007
4. Ashok Kumar
S/o Sh. Partap Singh
5. Suresh Rani
W/o Sh. Ashok Kumar
Both Residents of: 1236, 1st Floor
Shastri Nagar, Delhi-110052
6. Saroj Rani
W/o Sh. Raj Kumar
R/o 1381, Gali No. 5, Jain Nagar
Budh Vihar, Delhi-110081
..... Petitioners
VERSUS
1. The State (Govt. of NCT of Delhi)
2. Tarashpal Singh
S/o Sh. Sardar Singh
3. Rekha Devi
W/o Sh. Tarashpal Singh
Both Residents of:
H. No. 19, Gali No. 13
A-1 Block, Bengali Colony
Sant Nagar, Burari, Delhi-110084
4. Shweta Saluja
W/o Late Manoj Saluja
R/o H. No. 1469, Outram Lane
GTB Nagar, Delhi-110009
..... Respondents
Cr. Rev. No. 245/2022 Joginder Singh & Ors. vs. State & Ors. Page No. 1 of 13
Date of Institution : 07.05.2022
Date of Arguments : 03.02.2023
Date of Order : 10.02.2023
ORDER
1. The criminal revision petition under Section 397 of 'The Code of Criminal Procedure, 1973' (Hereinafter referred to as 'Cr.PC') is directed against notice dated 22.11.2021 in File No. 202/2021 titled as 'State vs. Joginder Singh & Ors.' arising from kalandra vide DD No. 40A dated 15.11.2021 under Section 107/150 Cr.P.C. registered at PS Maurice Nagar whereby Ld. Special Executive Magistrate (Ld. SEM), North District, Delhi directed the petitioners to appear before him and show cause why they should not be directed to execute personal bonds in the sum of Rs. 50,000/- each with one surety in the like amount for keeping peace till the conclusion of the proceedings under Section 107/111 Cr.P.C.
BRIEF FACTS:
2. On 14.11.2021, vide DD No. 41A, 43A and 49A, ASI Satya Prakash alongwith Ct. Rahul reached at A-6, 1 st Floor, Christian Colony, Patel Chest, Maurice Nagar, Delhi-110007 where the petitioners and the respondent No. 2 to 4 were arguing in a room towards main road and claiming ownership of an office. He asked them that they should not quarrel and make noise. The petitioners and the respondent No. 2 to 4 shown him one lock and both the parties had keys thereof. The petitioners and the respondent No. 2 to 4 were quite violent. However, he pacified them. The petitioners and the respondent No. 2 to 4 fixed their own locks on the said room and kept keys thereof with them. On his instruction, they left the place of incident.
Cr. Rev. No. 245/2022 Joginder Singh & Ors. vs. State & Ors. Page No. 2 of 13
3. However, the petitioner No. 2, 5 and 6 and the respondent No. 3 and 4 again started quarrelling at a short distance from the place of incident. The petitioner No. 2, 5 and 6 and the respondent No. 3 and 4 sustained injuries. He accompanied them to Hindu Rao Hospital where they were medically examined vide MLCs. He recorded statement of both the parties. ASI Satya Prakash formed opinion that there was a property dispute between the petitioners and the respondent No. 2 to 4 and for that reason, they were making allegations and counter allegations against each other and they could commit any cognizable offence which can disturb peace and public tranquillity. On instruction of SHO, PS Maurice Nagar, he prepared kalandra under Section 107/150 Cr.P.C. and submitted it to Ld. SEM, Sarai Rohilla.
PROCEEDINGS BEFORE LD. SEM:
4. Vide order dated 22.11.2021, Ld. SEM, Sarai Rohilla issued notice to the petitioners, as under:
"Kalandra perused, on record. IO present, statement recorded on file. Matter relates to dispute over property (office) among the respondents. Issue notice U/S 107/111 Cr.P.C. in the sum of Rs. 50,000/- each against the respondents for dated 03.12.2021."
NOTICE UNDER SECTION 107/111 CR.PC:
5. Notice under Section 107/111 Cr.P.C. issued by Ld. SEM, North District, Delhi is as under:
"NOTICE U/S 107/111 Cr.P.C.
Whereas it has been made to appear before me by reliable information and report through S.H.O. Maurice Nagar filed by A.S.I Satya Parkash that you have inimical terms with Tarashpal Singh & Ors. which is other party, matter relates to dispute over property (office) among the respondents. You also threatened other party for dire consequences on and likely to cause breach of peace.
Cr. Rev. No. 245/2022 Joginder Singh & Ors. vs. State & Ors. Page No. 3 of 13 It has been alleged that there is very serious tension between you and other party and are likely to do a wrongful act which may result in the breach of peace within the local limit in my jurisdiction and I am satisfied from the police report that there are sufficient grounds for initiating proceedings against you.
Therefore, I Keshav Kumar, Special Executive Magistrate, North District, Delhi, do hereby require you to appear in the court on 03-12-2021 at 02.00 P.M. and show cause why you should not be bound with a sum of Rs. 50,000/- with one surety in the like amount for keeping peace for a period of one year. Given under my seal of this court on 22-11-2021."
GROUNDS OF REVISION:
6. Feeling aggrieved and dissatisfied with the impugned order, the petitioners preferred the criminal revision petition on the grounds, as under:
(a) The petitioners are absolute owners of A-6, Christian Colony, Patel Chest, Maurice Nagar, Delhi-
110007 and the petitioner No. 2 never executed any title documents in favour of the respdt. No. 2 and 3;
(b) The petitioner No. 2 executed title documents in favour of the respondent No. 3's husband in 2015. However, the petitioner No. 2 re-purchased the said property from him in 2021;
(c) The respondent No. 2 to 4 tried to dispossess the petitioners in 2017 with the assistance of police officials and the petitioners never made any complaint on account of fear till November, 2021;
(d) On 14.11.2021, the respondent No. 2 to 4 with the assistance of police officials physically assaulted the petitioners and forcibly evicted them from the said property;
(e) The petitioner No. 3 is an advocate and he was maintaining his office in the said property;
(f) The petitioner No. 1 has already filed a complaint under Section 200 Cr.P.C. and an application under Section 156 (3) Cr.P.C.
(g) The petitioners neither caused any breach of peace or public tranquillity nor any criminal act; and
(h) Ld. SEM issued the impugned notice in a mechanical manner without application of judicial mind."
Cr. Rev. No. 245/2022 Joginder Singh & Ors. vs. State & Ors. Page No. 4 of 13 APPEARANCE:
7. I have heard arguments of Mr. Jawahar Singh, Advocate for the petitioners, Mr. Amit Dabas, Ld. Addl. PP for the State / the respondent No. 1 and Mr. Amulya Upadhyay, Advocate for the respondent No. 2 and 3, and examined trial Court record.
CONTENTIONS OF LD. COUNSEL FOR THE PETITIONERS:
8. Ld. Counsel for the petitioners contended that the petitioner No. 2 is absolute owner of the said property. He contended that the respondent No. 2 to 4 with the assistance of police officials intending to dispossess the petitioners from the said property. He contended that the petitioners did not cause any breach of peace or public tranquillity. He contended that the petitioner No. 2, 5 and 6 sustained injuries in physical assault launched by the respondent No. 2 to 4. He contended that the impugned notice was issued by Ld. SEM without application of judicial mind in a mechanical manner at the instance of the respondent No. 2 to 4. He contended that there is no material for making any opinion pertaining to apprehended breach of peace or public tranquillity. He contended that the dispute is essentially a civil dispute. He relied on judgments in Bairagi Charan Jena & Ors. vs. State of Orissa & Anr., 1998 CRLJ 228, Madhu Limaye vs. Ved Murti, AIR 1971 SC 2481, Asha Pant vs. State & Ors., 2008 (2) JCC 984, Aldanish Rein vs. State of NCT of Delhi & Anr., WP (Crl.) 2039/2018 and Court on its Own Motion vs. State & Ors., Crl. Ref. No. 1/2007. He contended that the impugned notice was passed without any preliminary enquiry and it is liable to be quashed.
Cr. Rev. No. 245/2022 Joginder Singh & Ors. vs. State & Ors. Page No. 5 of 13 CONTENTIONS OF LD. ADDL. PP FOR THE STATE / THE RESPONDENT NO. 1:
9. Ld. Addl. PP for the State contended that there is no infirmity in the impugned notice. He contended that Ld. SEM considered kalandra, complaints made by the petitioners and the respondent No. 2 to 4 and MLC of the petitioner No. 2, 5 and 6 and the respondent No. 3 and 4. He contended that in fact, it is the officer on spot who has to take a decision as to what provision should be resorted to according to prevailing circumstances. He contended that if there had been altercation, abusing, threatening and beating, by no means, can it be held that resorting to the provisions of Section 107/150 Cr.P.C. was totally unwarranted. He contended that there was need of immediate measure to prevent the petitioners and the respondent No. 2 to 4 from causing any breach of the peace or public tranquillity and therefore, they were rightly proceeded under Section 107/150 Cr.P.C. and summoned vide the impugned notice. He contended that there is no merit in the criminal revision petition.
CONTENTIONS OF LD. COUNSEL FOR THE
RESPONDENT NO. 2 AND 3:
10. Ld. Counsel for the respondent No. 2 and 3
challenged the maintainability of the criminal revision petition is barred under Section 397 (2) Cr.P.C. on the ground that issuance of show cause notice under Section 107/111 Cr.P.C. is an interlocutory order. He relied on judgment in Bindbasni and Ors. vs. State of U.P., 1976 CriLJ 1660. He contended that the petitioners have not filed any civil suit pertaining to their right, title or interest in the said property. He prayed for dismissal of the criminal revision petition.
Cr. Rev. No. 245/2022 Joginder Singh & Ors. vs. State & Ors. Page No. 6 of 13 STATUTORY PROVISIONS:
11. The sections relevant to the subject matter of the petition are as under:
"107. Security for keeping the peace in other cases.- (1) When an Executive Magistrate receives information that any person is likely to commit a breach of the peace or disturb the public tranquillity or to do any wrongful act that may probably occasion a breach of the peace or disturb the public tranquillity and is of opinion that there is sufficient ground for proceeding, he may, in the manner hereinafter provided, require such person to show cause why he should not be ordered to execute a bond [with or without sureties] for keeping the peace for such period, not exceeding one year, as the Magistrate thinks fit.
(2) Proceedings under this section may be taken before any Executive Magistrate when either the place where the breach of the peace or disturbance is apprehended is within his local jurisdiction or there is within such jurisdiction a person who is likely to commit a breach of the peace or disturb the public tranquillity or to do any wrongful act as aforesaid beyond such jurisdiction.
111. Order to be made.- When a Magistrate acting under Section 107, Section 108, Section 109 or Section 110, deems it necessary to require any person to show cause under such section, he shall make an order in writing, setting forth the substance of the information received, the amount of the bond to be executed, the term for which it is to be in force, and the number, character and class of sureties (if any) required."
JUDICIAL PRECEDENTS:
12. In Madhu Limaye vs. Sub-divisional Magistrate, Monghyr & Ors., (1970) 3 SCC 746, Hon'ble Supreme Court of India considered scope of Section 107 Cr.PC, as under:
"33. The section is aimed at persons who cause a reasonable apprehension of conduct likely to lead to a breach of the peace or disturbance of the public tranquillity.
Cr. Rev. No. 245/2022 Joginder Singh & Ors. vs. State & Ors. Page No. 7 of 13 This is an instance of preventive justice which the Courts are intended to administer. This provision like the preceding one is in aid of orderly society and seeks to nip in the bud conduct subversive of the peace and public tranquillity. For this purpose Magistrates are invested with large judicial discretionary powers for the preservation of public peace and order.....
35. We have seen the provisions of Section 107. That section says that action is to be taken 'in the manner hereinafter provided' and this clearly indicates that it is not open to a Magistrate in such a case to depart from the procedure to any substantial extent. This is very salutary because the liberty of the person is involved and the law is rightly solicitous, that this liberty should only be curtailed according to its own procedure and not according to the whim of the Magistrate concerned....."
Maintainability of the criminal revision petition against order issuing notices under Section 107/111 Cr.P.C.
13. As regards contention that impugned notice issued under Section 107/111 Cr.P.C. is an interlocutory order, this Court is of the considered opinion that such an order seriously invade liberty of a citizen and it cannot be considered as an interlocutory order. Such an order is an intermediate order or quasi-final order.
14. In Amar Nath and Others vs. State of Haryana and Another, (1977) 4 SCC 137, Hon'ble Supreme Court of India held, as under:
"10.....We are, therefore, satisfied that the order impugned was one which was a matter of moment and which did involve a decision regarding the rights of the appellants. If the appellants were not summoned, then they could not have faced the trial at all, but by compelling the appellants to face a trial without proper application of mind cannot be held to be an interlocutory matter but one which decided a serious question as to the rights of the appellants to be put on trial."
Cr. Rev. No. 245/2022 Joginder Singh & Ors. vs. State & Ors. Page No. 8 of 13
15. In Rajendra Kumar Sitaram Pande and Others vs. Uttam and Another, (1999) 3 SCC 134, Hon'ble Supreme Court of India held, as under:
"6.....This being the position of law, it would not be appropriate to hold that an order directing issuance of process is purely interlocutory and, therefore, the bar under sub-section (2) of Section 397 would apply. On the other hand, it must be held to be intermediate or quasi-final and, therefore, the revisional jurisdiction under Section 397 could be exercised against the same. The High Court, therefore, was not justified in coming to the conclusion that the Sessions Judge had no jurisdiction to interfere with the order in view of the bar under sub-section (2) of Section 397 of the Code."
16. A notice under Section 107/111 Cr.P.C. issued in a mechanical manner in breach of legal procedure and safeguards in an arbitrary manner is not only illegal but it is violative of Article 21 of 'The Constitution of India' and therefore, the impugned notice is revisable under Section 397 Cr.P.C.
Whether there is credible information that the petitioners were likely to commit a breach of the peace or disturb the public tranquillity as required under Section 107 Cr.P.C.?
17. On perusal of record, it is seen that only material before Ld. SEM was the complaint filed by IO ASI Satya Prakash, MLCs of the petitioner No. 2, 5 and 6 and the respondent No. 3 and 4, and complaints made by the petitioners and the respondent No. 2 to 4 made against each other.
18. A perusal of the impugned order issuing the impugned notice would show that Ld. SEM merely observed that the matter related to dispute over property between the petitioners and the respondent No. 2 to 4. However, he has not given any indication that there was any apprehension of breach of the peace or disturbance to the public tranquillity.
Cr. Rev. No. 245/2022 Joginder Singh & Ors. vs. State & Ors. Page No. 9 of 13
19. A perusal of kalandra would show that IO ASI Satya Prakash pacified the parties who had left the place of incident after locking the room with their keys. The quarrel leading to injuries to the petitioner No. 2, 5 and 6 and the respondent No. 3 and 4 had taken place at a short distance from the place of incident.
20. In Tarvinder Kumar & Anr. vs. State, (1990) 40 DLT 210, Hon'ble High Court of Delhi held, as under:
"9. In nutshell the above provisions of law show that on receipt of the information in the present case kalandra given by the police, the Magistrate was bound to record his opinion as contemplated by Section 107 and thereafter was to prepare the notice under Section 111 which must contain the substance of the information so received and was bound to send the copy of such notice alongwith the summons to the person concerned. The stage for passing any order under Section 116(3) could arise only after the summons and the notice as required by Section 111 and 113 had been served on the petitioners and the inquiry had commenced. It is really surprising that the learned Magistrate had got ready an order order under Section 116(3) of the Code before even he had applied his mind regarding holding of inquiry or before even commencement of the inquiry. This is not a judicial approach expected of a judicial officer who is bound to decide such matters in a judicial manner."
21. In Asha Pant vs. State & Ors., (2008) 102 DRJ 216, Hon'ble High Court of Delhi held, as under:
"13.....The very wording of the above Section indicates that it is a two step process. First, the Magistrate receives information on which he forms an opinion. On the basis of such opinion, he issues a notice. This is the second step. It was only after the person to whom such notice is issued respond or fails to respond, as the case may be, the provisions of Section 111 will come into play and an order can be made asking such person to furnish a bond.
Cr. Rev. No. 245/2022 Joginder Singh & Ors. vs. State & Ors. Page No. 10 of 13
16. It is abundantly clear from the above observations of the Supreme Court that the powers under Section 107 and the Section that follow are to be exercised by Executive Magistrate with great care and caution. At every stage an SEM would be required to state reasons for taking such action.
20. There is nothing in the impugned notices issued by the SEM to indicate that the SEM had formed an opinion as required under Section 107 prior to issuing such notices. The minimal enquiry that was required on the facts and circumstances of the present case was not undertaken. On the face of it, therefore, neither of the notices and summons can be sustained in law. In any event the question of issuing a summons under Section 113 did not arise at all, since that was a subsequent step and not to be exercised simultaneously with the issuance of a notice under Section 107 CrPC."
22. In the present case, Ld. SEM did not form any opinion that there was sufficient ground for proceeding, as required under Section 107 Cr.P.C.
23. Ld. SEM did not conduct any preliminary enquiry pertaining to the information received by him vide kalandra that the petitioners were likely to commit a breach of the peace or disturb the public tranquillity.
24. Ld. SEM without forming any opinion regarding necessity of immediate measures required for the prevention of a breach of the peace or disturbance of the public tranquillity or the commission of any offence or for the public safety, issued notices to the petitioners to appear before him and execute bonds in the sum of Rs. 50,000/- each simultaneously with notices under Section 107 Cr.P.C.
25. Therefore, this Court is of the considered opinion that the impugned order dated 22.11.2021 alongwith the impugned notices and the consequent proceedings initiated by Ld. SEM in a mechanical manner without application of mind.
Cr. Rev. No. 245/2022 Joginder Singh & Ors. vs. State & Ors. Page No. 11 of 13 CONCLUSION:
26. Accordingly, the criminal revision petition filed by the petitioners is allowed. The proceedings under Section 107/111 Cr.P.C. alongwith the impugned order dated 22.11.2021 and impugned notices arising from kalandra vide DD No. 40A dated 15.11.2021 are quashed. A copy of the present order alongwith trial Court record be sent to the Court of Ld. SEM.
27. The criminal revision file be consigned to record room. Digitally signed by SANJAY SANJAY SHARMA SHARMA Date:
2023.02.10 18:47:32 +0530 Announced in the open Court SANJAY SHARMA-II on this 10th February, 2023 Addl. Sessions Judge-03 (Central) Tis Hazari Courts, Delhi Cr. Rev. No. 245/2022 Joginder Singh & Ors. vs. State & Ors. Page No. 12 of 13 Joginder Singh & Ors. vs. State & Ors.
CNR No.: DLCT01-007467-2022
Crl. Revision No. 245/2022
10.02.2023
Present : None for the petitioners.
Mr. Amit Dabas, Ld. Addl. PP for the State / the respondent No. 1.
Mr. Amulya Upadhyay, Advocate for the respondent No. 2 and 3.
It is 06.45 p.m. Vide separate order, the criminal revision petition filed by the petitioners is allowed. The proceedings under Section 107/111 Cr.P.C. alongwith the impugned order dated 22.11.2021 and impugned notices arising from kalandra vide DD No. 40A dated 15.11.2021 are quashed. The revision file be consigned to record room. Digitally signed by SANJAY SANJAY SHARMA SHARMA Date:
2023.02.10 18:47:46 +0530 Sanjay Sharma-II ASJ-03, Central District Tis Hazari Courts Delhi NK 10.02.2023 Cr. Rev. No. 245/2022 Joginder Singh & Ors. vs. State & Ors. Page No. 13 of 13