Bombay High Court
Sau. Shilpa vs State Of Maharashtra on 25 November, 2011
Bench: A.P. Bhangale
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
Criminal Writ Petition No. 535 of 2011
1) Sau. Shilpa w/o Ashwin Aade,
Aged about 24 years, Occupation : Household,
2) Ashwin s/o Ramrao Aade,
Aged about 30 years, Occupation : Driver,
3) Manish s/o Ramesh Potpose,
Aged about 20 years, Occupation : Student,
All R/o C/o Shri. Babanrao Gaikwad,
L.I.G. Quarter No. 70, Mhada Colony, Amravati Road,
Wadi, P.S. Wadi, Nagpur. PETITIONERS..
VERSUS
1) State of Maharashtra
through Police Station Officer,
Police Station Wadi, Nagpur.
2) Special Executive Magistrate,
M.I.D.C. Division, Nagpur City, Nagpur.
3) Miss. Mina d/o Ramvilas Jogi,
Aged about 30 years, Occupation : Household,
R/o. L.I.G. Quarter No. 46, Mhada Colony,
Navnit Nagar, Amravati Road, Wadi P.S. Wadi,
Nagpur. RESPONDENTS..
.........................................................................................................................................
Mr. P. V. Kaore, Advocate for the Petitioners
Mr. A. S. Sonare, Advocate for the Respondent No. 1
Mr. M. M. Papinwar, Advocate for the Respondent No.3
.........................................................................................................................................
CORAM : A. P. BHANGALE, J.
DATE : 25TH NOVEMBER, 2011.
ORAL JUDGMENT :-
1. Rule, made returnable forthwith. Heard the matter finally by
consent of the learned counsel appearing for the parties.
2. By this petition, the petitioners prayed for quashing of the
Criminal proceedings vide Criminal Case No. 156/2011, initiated under
Sections 107, 116(3) and 151 of the Code of Criminal Procedure.
It is submitted that the valve of the water tap in the house of
the petitioners is affixed near the house of the respondent No. 3 - Ms.
Mina d/o Ramvilas Jogi. Mr. Pappu Jogi, the brother of the respondent
no. 3 was seen playing or tampering with the valve.
3. On 12/06/2011, there was no water from the tap hence,
petitioner no. 1 went to see the valve at about 12.30 p.m. She found
that it was in broken condition. She then asked respondent No. 3 - Mina
and her brother Pappu Jogi as also her sister Munni Jogi, as to who had
broken the valve. Upon questioning them, respondent No. 3, her brother
and sister quarreled over the question and abused petitioner no. 1 in a
very filthy language based on her caste and, threatened to kill her.
Petitioner No. 1, therefore, on 12/06/2011 approached at Police Station
Wadi, Nagpur and narrated the incident to respondent no. 1 - Police
Station Officer at Wadi Police Station, Nagpur, who wrote report as per
her whim and opinions vide Non Cognizable Report No. 326/2011,
under Sections 504 and 506 of the Indian Penal Code against respondent
no. 3, her brother and sister. Being angered by this, respondent no. 3,
her brother and sister chose to lodge false report at Wadi Police Station,
which was noted as N.C.R. 327/2011, for offence punishable under
Sections 504 and 506 of the Indian Penal Code against the petitioner no.
1, her husband and brother.
4. Thereafter on 14/06/2011, Head Constable from Wadi Police
Station, served Itallanama upon petitioners giving intimation to the
petitioners that proceedings under Section 107, 116(3) and 151 of the
Code of Criminal Procedure informing the petitioners to remain present
before Special Executive Magistrate, M.I.D.C. Division, Nagpur City,
Nagpur. At about 3.00 p.m., on 15/06/2011, the respondent No. 2 -
Special Executive Magistrate, in proceedings i.e. Criminal Case No.
156/2011 under Sections 106, 116(3) and 151 of the Code of Criminal
Procedure, passed preliminary order under Section 111 of the Code of
Criminal Procedure on 15/06/2011. The petitioners' who made written
submissions before Special Executive Magistrate requested to drop the
proceedings. According to petitioners, the petitioners never intended to
commit breach of peace or to disturb the public tranquility or to do any
wrongful act which may occasion breach of peace or may disturb the
public tranquility. Thus, according to petitioners, there was no necessity
for the learned Special Executive Magistrate to pass a preliminary order
under Section 111 of the Code of Criminal Procedure as there was no
probability of breach of peace or disturbance of public tranquility nor
there was any requirement to hold an inquiry as to truth of the
information. Furthermore, there was no possibility of commission of
cognizable offence at the hands of the petitioner.
5. According to learned Advocate for the petitioners, domestic
or petty quarrels between neighborers cannot be the subject matter,
action to be taken under Section 107 of the Code of Criminal Procedure
as the quarrel between the petitioners' and the respondents' was petty
quarrel which is very common in the society and not long lasting.
6. Learned APP submitted that notice dated 14/06/2011,
calling upon the petitioners to attend office of the Special Executive
Magistrate on 15/06/2011 at about 3.00 p.m. was pursuant to complaint
against petitioners reported to Wadi Police Station as N.C.R. No. 327/11,
under Section 504 and 506 of the Indian Penal Code. Thereafter, on the
filing date on 15/06/2011, a preliminary order under Section 111 of the
Code of Criminal Procedure was passed, requiring the petitioners to
show cause under Section 107 as to why bond shall not be furnished for
good behavior to maintain peace and order and peaceful conduct for a
period of one year and to adduce with the surety bond of respective
citizens. The petitioners who chose to file written submissions before
Special Executive Magistrate on 29/07/2011, prayed for canceling and
setting aside the proceedings.
7.
Learned Advocate for the petitioners' placed reliance upon
the ruling in the case of Perswami Kandswami Devendra and another
vs. Sr. Inspector of Police, Mumbai and others reported in 2003(4)
Mh.L.J. 703, wherein with reference to proceedings under Section 107
and 111 of the Code of Criminal Procedure, it is observed thus;
"5. Section 107 if read plainly shows that
its object is to protect the public tranquility
and to prevent possibility of any disturbance
to public peace. Therefore, there should be
material before the Special Executive
Magistrate to come to a conclusion that the
person who is to be asked to furnish the
bond is doing such activities which are
reasonably dangerous to public peace and
public tranquility and that too directly. The
material should show that he is having the
associate and doing the exercise of muscle
power or giving threats or engaging himself
in antisocial activities which would result in
outbreaking of some incident which would
disturb the public tranquility and would
cause the breach of public peace. Petty
quarrels between individuals are very
common in society. They are not long
lasting and shortly forgotten after the heat
of passion subsides and anger gets cooled
down. Of course, the incidents cannot be
overruled in which such quarrels would be
having long lasting effect and would lead to
deep rooted enmity between the concerned
persons. But there has to be material to
that effect. The cases of show of muscle
power and show of the strength cannot be
excluded because in those cases also there is
possibility of breach of public peace and
disturbance to public tranquility. There
should be material on record to show that
way.
6. Domestic quarrels, petty quarrels
between neighbouring persons which do not
have long life are not the subject matters of
the actions to be taken in view of section
107 of the Code. The energy and time of
public servant concerned should not bee
wasted in such trifling matters or for
satisfying the personal vendetta or for the
purpose of giving lessons to each other. This
Court is supported by the view taken by the
Single Judge Bench of this Court in two
cases i.e. Smt. Christalin Costa and others
vs. State of Goa and others reported in
1993(2) Mh.L.J. 1409 = 1993 (1) BLR 688
and Madhu Deoraj Shetty vs. State of
Maharashtra reported in 1989 Cri.L.J.
1255.
8.
Learned Advocate for the petitioners', thus, submitted that
petty quarrels between neighborers are very common in nature which are
of temporary nature.
9. Learned Advocate for the respondent No. 3 submitted that in
the ruling cited, the facts were distinguishable as it was a case revolving
around dispute between husband and wife with reference to accusation
punishable under Section 498-A of the Indian Penal Code and it was
alleged that in the notice there was threat to the wife to take revenge.
Under these circumstances and in the facts of the case, notice issued was
qualified, while in the present case, the respondent no. 3 has already
executed bond and also provided surety in the sum of Rs. 5,000/- each to
secure peace. He, therefore, submitted that the facts in the present case
are distinguishable as there was complaint as well as cross complaint
between the parties which made it necessary for the Police Station
concerned to initiate the proceedings under Section 107 of the Code of
Criminal Procedure.
10. Section 107 of the Code of Criminal Procedure, falls under
Chapter VIII of Cr.P.C. as security for keeping the peace and for good
behaviour. The object is to ensure that there shall be no breach of the
peace as it is likely any wrongful act may probably occasion a breach of
the peace or disturb the public peace and tranquility. The Executive
Magistrate concerned, having local jurisdiction in the area in which
breach of the peace or disturbance is apprehended. The proceedings are
preventive in nature and not punitive as they are intended to secure
peace and tranquility in the society but, the Magistrate concerned is
under statutory obligation to hold an inquiry with a view to satisfy
himself regarding existence of materials to justify the action as the
Magistrate concerned cannot merely act on the basis of police report or a
private complaint. The Magistrate is required to hold an inquiry and
examine witnesses before any person is required to execute bond with or
without sureties to ensure that there shall be no breach of peace or
disturbance of public tranquility as the case may be. Of course, even
preliminary order under Section 111 of the Code of Criminal Procedure
should be passed after application of judicial mind as making a
preliminary order under Section 111 of the Code of Criminal Procedure
is not an empty formality but judicial mind must be applied to the
substance of information received from the police or other sources. Such
order passed under Section 111 of the Code of Criminal Procedure is
required to be read over and explained to the person to whom notice is
issued to attend the Court and when such noticee appears or is brought
by the Magistrate as the case may be, inquiry is required to be held in the
same manner as may be practicable in accordance with the rules,
procedure prescribed regarding evidence in summons cases. It is open
for the Magistrate under Section 116(3) of the Code of Criminal
Procedure, if immediate measures are necessary for the prevention of a
breach of the peace or disturbance of the public tranquility or the
commission of any offence to pass a reasoned order whereby the noticee
or person against whom a preliminary order is passed to execute bond
with or without a surety to keep peace or maintain good behaviour until
conclusion of the inquiry with option to detain such person in custody till
bond is executed or in default of execution of the bond till inquiry is
concluded. The inquiry under Section 116(3) of the Code of Criminal
Procedure starts as soon as cause is shown by the noticee concerned
against whom preliminary order is passed. Coming back to the facts and
circumstances in the present case, it appears that Wadi Police Station
initiated the action before the Special Executive Magistrate, M.I.D.C.
Division, Nagpur. The notice was given to the petitioner on 14/06/2011,
informing about the complaint lodged by Ms. Mina Ramvilas Jogi under
Section 504 and 506 of the Indian Penal Code and it appears in the
preliminary order that the Special Executive Magistrate under Section
111 of the Code of Criminal Procedure, setting forth the substance of the
information on 15/06/2011 and his satisfaction to start inquiry under
Section 107, 116(3) read with Section 151 of the Code of Criminal
Procedure and issued a show-cause notice as to why the petitioners shall
not execute bond for term of one year to maintain peace and good
behaviour with two sureties. Thus, although the order is labelled as
preliminary order under Section 111(6) of the Code of Criminal
Procedure Code, it appears that mere show-cause notice to which reply is
also filed on 29/07/2011 by the petitioners herein before the Special
Executive Magistrate, M.I.D.C. Division, Nagpur. Under these
circumstances, when cause is already shown it is for the leaned Special
Executive Magistrate concerned to consider as to whether petitioners are
required to execute bond with or without surety after the inquiry into
substance of the information received by him after considering the cause
shown by the petitioners. Of course, such inquiry is required to be
concluded expeditiously within a period of six months from the date of
its commencement as the proceedings would terminate automatically
unless extended for special reasons to be recorded by the Magistrate
concerned. It appears that the identical proceedings was also started
against the respondent no. 3 and learned Advocate for the respondent
no. 3 informed that she has already executed bond in the sum of
Rs.5,000/-. Be that as it may, the proceedings arose because of
accusations between the petitioners and respondent no. 3 etc., which
made it necessary for the police to initiate action before the learned
Special Executive Magistrate. The facts are, therefore, prima facie
distinguishable from the ruling in the case of Perswami Kandswami
Devendra and another cited (supra), it appears from the observations
made by this Court that if there are certain incidents in which quarrel
may have long lasting effect and would lead to deep rooted enmity
between the persons concerned and in the cases of show of muscle
power and show of the strength, there may be possibility of breach of
public peace and disturbance of public tranquility that would depend
upon material on record placed before the Magistrate concerned. In the
present case, where it is a simple case of domestic or petty quarrels
between neighbourers or where it may have long lasting effect leading to
breach of peace in the facts of the case is a question to be considered in
the inquiry by the learned Execute Magistrate concerned. It would not
be proper at this stage to make any observation on merits on the
controversy. Suffice to say that challenge to the show-cause notice is
pre-mature at this stage, therefore, I am not inclined to entertain this
petition. Petition is dismissed. Rule is discharged.
JUDGE
Punde
