Delhi District Court
Shiv Raj Singh vs Kamal Jain on 7 March, 2015
IN THE COURT OF Ms. POONAM CHAUDHARY, SPECIAL
JUDGE07 (CENTRAL), (PC ACT CASES OF ACB, GNCTD), DELHI
Crl. Rev. No. : 1/15
Unique Case ID : 02401R0029552015
SHIV RAJ SINGH
S/o Late Sh. Hukum Singh
R/o H.No. 2/28,
Roop Nagar, Delhi. ......Petitioner
Versus
1. KAMAL JAIN
S/o Late Sh. D.C. Jain,
R/o H. No. 603, Nimri Colony,
Ashok Vihar, PhaseIV,
Delhi.
2. STATE (GOVT. OF NCT OF DELHI)
....... Respondents
Date of Institution on 16.01.2015
Judgment reserved on 24.02.2015
Judgment delivered on 07.03.2015
CR No. 1/15 Shivraj Singh. Vs. Kamal Jain & Anr. 1/9
JUDGMENT
1. By way of present revision petition, the petitioner has assailed the Order dt.12.1.2015 of Special Executive Magistrate (hereinafter referred to as SEM) whereby the Ld. SEM had called upon the petitioner to furnish surety bond U/S 117 Cr.P.C.
2. It is alleged that there was a dispute between petitioner and respondent No. 1 in respect of two shops in property bearing No. 2/28, Plot No. 2, Roop Nagar, Subzi Mandi, Delhi and on 17.06.2014 respondent no. 1 lived to take forcible possession of the said shops. However, the illegal design of respondent no. 1 could not succeed as police was called by the nephew of the petitioner and due to the intervention of the police, the attempt of respondent no. 1 was averted. It is also alleged that the police instead of taking action against respondent no. 1 filed a Kalandara U/S 107/150 Cr.P.C. in the court of SEM against the petitioner and respondent no.1.
3. It is further averred that the notice of the Kalandara was CR No. 1/15 Shivraj Singh. Vs. Kamal Jain & Anr. 2/9 issued to the parties, pursuant thereto reply was filed by the petitioner and after considering the reply, Ld. SEM asked the parties to get their statements recorded. The statement of the parties were accordingly recorded on 6.5.2015 and the matter was adjourned for final decision to 12.1.2015. However, on 12.1.2015 Ld. SEM demanded surety bond U/S 117 Cr.P.C. even though the case had not been finally decided.
4. The contention of Ld. Counsel for the petitioner is that Ld. SEM without passing a reasoned order could not have called upon the petitioner to furnish surety bond U/S 117 Cr. P.C. It is also stated that Ld. SEM is expected to be satisfied in a judicial manner and it is only after he is satisfied that there is likelihood of breach of peace, he can call upon the parties to furnish bonds for keeping peace and good behaviour U/S 117 Cr.P.C. In this regard, Ld. Counsel for the petitioner placed reliance upon 1980 CC cases 137 (P&H) titled "Bishan and Others Vs. The State of Haryana and Others" wherein, it has been held as under:
"Under Section 111 of the Code of Criminal Procedure, the Magistrate acting CR No. 1/15 Shivraj Singh. Vs. Kamal Jain & Anr. 3/9 under section 107, 108, 109, or 110 if considers necessary to proceed against any such person under any of these sections, he is required to 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. Under section 112 he is required to read over such order to that person and to explain him the substance. Under section 113 if such a person is not present then he can issue summons requiring him to appear. Under section 114, copy of the order is to be sent along with the summons or warrant. Section 115 authorises the Magistrate to dispense with the personal attendance. Under section 116 he is to hold enquiry as to the truth of the information."
"The scheme of Chapter VIII relating to security proceedings show that SEM is to proceed step by step and is to follow the provisions and pass the orders in accordance with law. After enquiry as to the truth of the information under section 116(1) of the Code of Criminal Procedure, he is to pass order under section 117 of the CR No. 1/15 Shivraj Singh. Vs. Kamal Jain & Anr. 4/9 Code wherein he can order furnishing security for good behaviour. Under Section 118 he can discharge the persons if no material is found against them. Section 119 deals with the commencement of period for which security is required. Section 120 deals with the contents of bond and Section 121 gives power to reject sureties, section 122 deals with imprisonment in default of security, Section 123 deals with the powers to release the persons imprisoned for failing to give security and section 124 deals with the security for unexpired period of bond."
5. It is also submitted that the counsel for the petitioner had objected and argued before Ld. SEM that until the case was finally decided and liability was fastened assigning reasons, Ld. SEM could not call upon the petitioner to furnish surety bond U/S 117 Cr.P.C in the kalandra proceedings U/S 107/150 Cr.P.C regarding DD No.25A dt. 17.6.2014 of PS: Roop Nagar.
6. It is further alleged that as Ld. SEM has not finally adjudicated the matter as such the Impugned Order dated CR No. 1/15 Shivraj Singh. Vs. Kamal Jain & Anr. 5/9 12.1.2015 is liable to be set aside/modified. It is also prayed that the Impugned Order be stayed during the pendency of the revision petition.
7. It is further alleged that under Section 116 Cr.P.C the Magistrate is to hold an inquiry into the truth of the information and take evidence and after the commencement of the inquiry and before its completion, if he considers that immediate measures are necessary for prevention of breach of peace, he may, for reasons to be recorded in writing direct the person in respect of whom the Order U/S 111 Cr.P.C. has been made to execute a bond, with or without sureties for keeping peace or maintaining good behaviour, till conclusion of the inquiry.
8. I heard the Ld. counsel for the petitioner and Ld. APP for the State. The facts leading to the filing of Kalandara U/S 107/150 Cr.P.C. against the petitioner and respondent no.1 in brief are that there was a dispute between the petitioner and respondent no.1 in respect of property on the ground floor bearing no. 2/28, Roop Nagar, Delhi, the SHO PS: Roop Nagar CR No. 1/15 Shivraj Singh. Vs. Kamal Jain & Anr. 6/9 apprehending breach of peace filed Kalandra U/S 107/150 Cr.P.C against the petitioner and respondent. The Ld. SEM thereafter issued notices to parties U/S 107/111 Cr.P.C.
9. The report of the Ld. SEM was called seeking clarifications as to whether the impugned order dt. 12.1.2015 was passed U/s. 111 Cr.P.C or 117 Cr.P.C. It was submitted in his report by Ld. SEM that a kalandra U/S 107/150 Cr.P.C was filed by SHO PS: Roop Nagar against the petitioner and respondent no. 1 as there was apprehension of breach of peace as there was a dispute over ownership of two shops on the ground floor of 2/28, Roop Nagar, Delhi110007. Both the parties claimed ownership over the shops and civil suits were pending and there was apprehension of breach of peace. It was further submitted that a notice U/s 107/111 Cr.P.C was served upon both the parties to show cause as to why they should not be called upon to execute personal/surety bond in the sum of Rs. 5,000/ each with one surety in the like amount for keeping peace till the conclusion of proceedings. It was further submitted that both the parties kept appearing and also filed their replies but did not produce surety CR No. 1/15 Shivraj Singh. Vs. Kamal Jain & Anr. 7/9 bond U/S 116(3) Cr.P.C. Ld. SEM further submitted that during the pendency of proceedings, it was not considered an immediate measure to call upon the parties to furnish surety bonds U/S 111 Cr.P.C for keeping peace and good behaviour till conclusion of the inquiry. It was further submitted that statement of parties were recorded and after completion of inquiry as there was apprehension of breach of peace, both parties were called upon to furnish surety bonds U/S 117 of the Cr.P.C.
10. Section 111 Cr.P.C provides, a Magistrate acting U/S 108/109/110 Cr. P.C, if he considers necessary to proceed against any party under any of these sections, can make an order in writing stating the substance of the information received, and the amount of bond to be executed and the term for which it is to be in force.
11. Section 116 Cr.P.C provides, a Magistrate has to hold an inquiry as to the truth of the information. After enquiry as to the truth of the information under section 116 (1) of the Code of Criminal Procedure, Magistrate has to pass order under section CR No. 1/15 Shivraj Singh. Vs. Kamal Jain & Anr. 8/9 117 of the Code wherein he can order furnishing security for good behaviour.
12. As submitted in his report by Ld. SEM, the impugned order has been passed U/S 117 Cr.P.C, however, the said order is not a speaking order fixing responsibility of any party. The impugned order does not show that the Ld. SEM was satisfied that there was apprehension of breach of peace nor it discloses the reasons for his satisfaction. In my view, the Ld. SEM was to be satisfied in the judicial manner before calling for surety bond U/S 117 Cr.P.C. I accordingly set aside the impugned order and direct the Ld. SEM to pass a reasoned order. The revision is accordingly allowed. A copy of order be sent to Ld. SEM for proceeding as per law. File be consigned to record room.
Announced in the open court on this 7th day of March, 2015 (Poonam Chaudhry) Special Judge07 (PC Act Cases of ACB, GNCTD) Central District, THC, Delhi CR No. 1/15 Shivraj Singh. Vs. Kamal Jain & Anr. 9/9