Delhi District Court
Smt. Sheetal vs The State (Govt. Of Nct Of Delhi) on 10 September, 2009
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IN THE COURT OF SH. GURDEEP SINGH:ASJ04
NORTHEAST DISTRICT:KARKARDOOMA COURTS:DELHI
IN THE MATTER OF:
1. SMT. SHEETAL
W/o Sh. Kamal Prakash
R/o Flat No. 148, DDA Flats, PhaseIII
Mayur Vihar, Delhi96.
2. SH. KIRAN PAL
S/o Sh. Baljeet Singh
3. SH. VINEET
S/o Sh. Baljeet Singh
4. SMT. VIMLA DEVI
W/o Sh. Baljeet Singh ......Revisionists
Revisionists No. 2 to 4 are the
Residents of: 1/3919, Bhagwanpur Khera
Shahdra, Delhi110032.
Versus
1. THE STATE (GOVT. OF NCT OF DELHI)
2. SHO, PS M.S. PARK, DELHI
3. MS. NIRMAL KAUR, S.E.M, N/E DISTRICT
SEELAMPUR, DELHI.
4. SH. RAJEEV
5. SMT. SUSHMA DEVI .......Respondents
Respondent No. 4 and 5 are the Residents of:
H.No. 1/3919, First floor, in one room,
Bhagwanpur Khera, Shahdra, Delhi110032.
Criminal Revision No. 35/2009
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10.09.09
1) Vide this order, I shall decide the revision petition
filed by the revisionist against the notice U/s 107/150
Cr.P.C dated 30.04.09 sent by Smt. Nirmal Kaur, Ld.
Special Executive Magistrate, NorthEast District,
Seelampur, Delhi whereby she has directed the
revisionist to furnish a bail bond in a sum of
Rs. 10,000/ with one surety in the like amount for
keeping peace during the proceedings
2) I have heard Sh. Ravindra Kumar, Advocate on behalf
of the revisionists, Sh. Surender Kumar, Advocate on
behalf of the respondents No. 4 and 5 and Ld. Addl.
P.P for the State. I have also gone through the record.
3) The brief facts relevant for the disposal of the present
revision petition are that a complaint U/s 107/150
Cr.P.C was filed by IO/S.I Jaswant Singh in the court
of Ld. S.E.M, N/E, Seelampur, Delhi vide No. 33A
showing Rajeev and Sushma Devi as first party and
Vimla Devi, Kiran Pal, Vineet and Sheetal as second
party. It is stated in the kallandra that Rajeev and his
wife Sushma Devi and Vimla, Kishan Pal and Vineet
came to the police station. Both the parties made oral
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complaint to him regarding H.No. 1/3919,
Bhagwanpur Khera, Shahdra, Delhi110032. The first
party says that house belongs to them and second
party shows that the house belongs to them. Both the
parties have earlier also made a complaint which was
received by him. There is a tension between the
parties and both of them can quarrel at any time and
can breach the peace. On 19.04.09 also they have
received the PCR call in which the first party had
filed FIR U/s 323/341/506/34 IPC at PS: M.S Park.
Therefore, both the parties be asked to file bond for
maintaining peace. The complaint was supported with
DD No. 33A and the complaint made by one Rajiv
Kumar wherein Rajiv Kumar had made a complaint
that he has threat of his life from his mother, brothers
and sisters. Vimla Devi made a complaint that her son
is living in one room with his wife and she had kept
him as Licensee. He and his wife was having dispute
from last six months. Therefore, they are threatening
them as they are not satisfied with one room. She also
gave a complaint against Ranjit Singh and Ram
Chander who were allegedly inciting her son and her
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daughterinlaw to implicate them in false dowry case.
Similar, complaint was also made by Vimla against
Choti Devi, her son, her daughterinlaw and others.
On the basis of the kallandra, S.E.M has passed the
order dated 30.04.09 and issue summons to both the
parties.
4) The notice of the revision petition was given to the
second party i.e respondent no. 4 to 5 alongwith the
State. The Trial Court record was also summoned.
5) The respondent No. 4 and 5 made appearances and
they chose not to file any reply but submitted that
they will address the arguments.
6) Ld. Counsel for the revisionists submits that the
present dispute is with respect to the property. Smt.
Vimla Devi has already filed civil suit in the Court of
Ld.District and Sessions Judge, Karkardooma Courts,
Delhi dated 7.07.09 and therefore, the present
proceedings should be setaside as there is a civil
dispute amongst the parties.
7) On the basis of kallandra, Ld. Special Executive
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Magistrate issued order which is on the printed
performa against both the parties. The order issued to
both the parties reads as under:
"In the court of Smt. Nirmal Kaur, Special Executive
Magistrate, North East District Seelampur Courts
Delhi
DD. No. 33 A Dated 20.04.09 PS M.S Park
U/s 107/150 Cr.P.C
S/V
Party 1st Rajeev , Sushma Devi.
Party IInd Vimla Devi, Kiran Pal, Vineet, Sheetal.
ORDER
SHO M.S Park Delhi has sent up the kallandra U/s 107/150 Cr.P.C against the above respondents. I have carefully gone through the police report and come to the conclusion that there are sufficient grounds to proceed against the respondent.
I, therefore, order that notice U/s 111 Cr.P.C be sent to the respondent asking him/them to show cause why he/they should not be ordered to execute a personal bond in the sum of Rs. 10,000/ with one surety in the like amount for keeping peace during the proceedings. Issue summons alonwith notices U/s 111 Cr.P.C for appearance on 15/05/09.
Sd/ (NIRMAL KAUR) SPECIAL EXECUTIVE MAGISTRATE NORTH EAST DISTRICT: DELHI 30/04/09"
8) On the basis of the kalandra, notice under sections 107/111 Cr.P.C was issued to both the parties by the Special Executive Magistrate. The notice issued to Mr. Naresh Aggarwal reads as under:
"In the court of Smt. Nirmal Kaur, Special Executive Magistrate, North East District Seelampur Courts Delhi DD. No. 33 A, Dated 20.04.09, PS M.S Park, Delhi 5 6 U/s 107/150 Cr.P.C I.O. S.I Jaswant Singh S/V Sheetal W/o. Kamal Prakash R/o 1/3919, Bhagwan Pur Khera, Shahdra, Delhi NOTICE U/S 107/111 CR.P.C Where as from the report of SHO M.S Park Delhi, appears that you Sheetal were threatening to Sushma Devi, dire consequences, during dispute which arose by your acts of behaviors over the issue of ownership of house, there is extreme tenstion at your hands to Rajeev and Shushma Devi.You may commit any cognizable offence in future and there was imminent danger of breach of peace. Despite that the intervention by the IO. You did not stop the threatening and abuse which may result in occurrence to commit a cognizable offence and breach of peach and disturbing the public tranquility and whereas you likely to do a wrongful acts which may result in breach of peace with in the legal limits of my jurisdiction and I am satisfied from the police report that there are sufficient grounds for taking processing against you U/s 107/150 Cr.P.C therefore, I, NirmalKaur , Special Executive Magistrate, North East District,Delhi, hereby order you to show cause why you should not be ordered to execute a personal bond in the sum of Rs. 10,000/ with one surety, for keeping peace for causing no disturbances in public tranquility for a period of the conclusion of the proceedings.
The character class of surety is as mentioned below: Character: Respectable Class : Should have the capacity to pay the amount of bond, if forfeited.
Given under my hands and seal today, the 30 day of 04 2009.
Case to come upon 150509 at 2.00 PM.
Sd/ (NIRMAL KAUR) SPECIAL EXECUTIVE MAGISTRATE NORTH EAST DISTRICT: DELHI"6 7
9. Similarly worded notice was issued to other party.
Summons were also issued to them by the Ld. S.E.M.
10. Ld. Counsel for the revisionists has assailed the impugned order on the grounds that the S.E.M has not recorded any fact finding inquiry and record reasons nor recorded the statements of the complainant, IO S.I Jaswant Singh. It is also stated that before issuance of summons U/s 107/111 Cr.P.C, a fact finding preliminary inquiry is a madatory requirement of law. Further the S.E.M has violated the statutory provisions of law as stipulated U/s 202 Cr.P.C.
11. Ld. counsel in support of his contention has cited "Santosh Vishwanath Shinde Vs. J.R Sangam, Asst.
Commissioner of Police and Anr., 1995 (1) Crimes Col. II 571, judgment of Division Bench of Hon'ble Bombay High Court, Smt. Arti Singh & Anr. Vs. State & Others, 83 (2000) Delhi law Times 219, judgment of our own High Court, Keshav Kumar Vs. State & Ors., 2009 (1) JCC 22 , judgment of our own High Court, Mr. Purshottam Ramnani Vs. 7 8 Government of NCT of Delhi & Ors., 2008 (2) JCC 923, judgment of our own High Court and Asha Pant Vs. State & Ors., 2008 (2) JCC 984, judgment of our own High Court.
12. Section 107 of Cr.P.C reads as under:
"Security for keeping 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 tranquility or to do any wrongful act that may probably occasion a breach of the peace or disturb the public tranquility 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."
13. From the plain language of the section, one finds that there must be formation of the opinion by the Special Executive Magistrate before proceeding in the matter.
14. Now coming to the order passed by the S.E.M against the parties. The said order was on a printed performa on which only the name of the first party and second party are filled. DD No., date and P.S is written and 8 9 the amount is filled, as shown above. It does not reflect from this order that any opinion is formed by the Special Executive Magistrate before issuance of notice U/s 107/111 Cr.P.C which is also on printed perfoma, as shown above. From this, it does not reflect that there was any application of mind by Special Executive Magistrate before passing the order of issuance of showcause notice.
15. Now coming to the cited judgment. The judgment of Asha Pant Vs. State, Supra would be relevant for the present purpose as in the said case, similarly notices were issued to both the parties on a printed performa. In the said case, Hon'ble Delhi High Court held that as per Section 107 (1) Cr.P.C, the magistrate receives the information and forms his opinion and on the basis of the opinion, he issues the notices. The Hon'ble High Court following the judgment of Hon'ble Supreme Court titled as, "Madhu Limaye V. Ved Murti, AIR 1971 SC 2481 and Tavinder Kumar & Anr. V. State, 40 (1990) DLT 210, the judgment of our own high court held that.....
"The sum total of the abovediscussion 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 Cr.P.C set out thereafter. Such steps should be preceded by the formation of an opinion in writing by a Magistrate which should be discernable when the 9 10 decision is challenged in the Court. Such formation of the opinion should, normally, be based on some preliminary enquiry that should be made by a SEM to justify the formation of any opinion. Of course, this cannot be straitjacketed since there are may be cases where a SEM may to form an opinion rightaway to 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 a landlord and tenant residing in the same premises, the notice U/s 107 Cr.P.C should not be issued only upon a perusal of the kalandra 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."
16. In the present case, from the order of the S.E.M, the formation of opinion is not discernable and it is a mechanical exercise of power. No preliminary inquiry is preceded before issuance of notice. Further, the complaint were dated 21.02.09 and 27.04.09 and the FIR was also registered against Ist Party on 19.04.09 and thereafter, as a counter blast of the same, they have lodged the present complaint to pressurise the respondents/revisionists not to pursue the FIR case. The apprehension of breach of peace, if any, had ceased. Further, in the present case also there is apparently property dispute. The S.E.M. should have 10 11 made preliminary enquiry before proceeding with the matter.
17. Accordingly, as per the discussion above, I am of the opinion that the issuance of notice is bad, in Law and is liable to be setaside. Accordingly, the notices issued against the revisionists and the respondent no.
4 to 5 is setaside. However, it is made clear that the settingaside of the notice shall not preclude the S.E.M to initiate action, as per law following the procedure laid down. The revisionists and the respondents are also at liberty to take appropriate legal action, as per law.
18. The revision petition is accordingly allowed. Copy of the order alongwith Trial Court record be sent to Ld. Special Executive Magistrate. Revision file be consigned to record room.
Announced in the open Court today i.e on 10/09/09 (GURDEEP SINGH) Additional Sessions Judge Karkardooma Courts, Delhi 11 12 Crl. Revision No. 35/09 10.09.09 Present: Ld. Counsel on behalf of the revisionist.
Vide my separate order announced today, order dated 30.04.09 passed by S.E.M and notices issued against the revisionists and the respondent No. 4 to 5 are setaside. The Criminal Revision is accordingly allowed.
Copy of the order alongwith TCR be sent to Special Executive Magistrate. Criminal Revision file be consigned to record room.
(GURDEEP SINGH) ASJ /KKD / 1 0 . 0 9 . 0 9 12