Calcutta High Court (Appellete Side)
Madhusudhan Bhowmik & Anr vs The State Of West Bengal & Anr on 19 May, 2023
IN THE HIGH COURT AT CALCUTTA
(Criminal Revisional Jurisdiction)
APPELLATE SIDE
Present:
The Hon'ble Justice Shampa Dutt (Paul)
CRR 2750 of 2019
Madhusudhan Bhowmik & Anr.
Vs
The State of West Bengal & Anr.
For the Petitioners : Mr. Pawan Kr. Gupta,
Ms. Sofia Nesar,
Mr. Santanu Sett.
For the State : Mr. Sreyashee Biswas.
For the Opposite Party No. 2 : Mr. Kaushik Gupta,
Mr. Debjyoti Das,
Mr. Arijit Bagchi.
Heard on : 28.04.2023
Judgment on : 19.05.2023
2
Shampa Dutt (Paul), J.:
1. The present revision has been preferred against an order dated
08.08.2019 passed by the Special Executive Magistrate, Central Division,
Kolkata in M/SEM Case No. 12 of 2017, dated 04.04.2017, under
Section 107 of the Code of Criminal Procedure, 1973 thereby directing
the Opposite Party/Petitioners herein to execute a bond for keeping
peace and tranquility in the area for a period of one year starting from
08.08.2019.
2. The petitioners case is that since 1982, the Petitioner No. 1 herein is a
tenant in respect of one shop room on the ground floor at Premises No. 8,
Balaram Dey Street, Kolkata 700 006 wherein he has been running a
business under the name and style of "Sreekrishna Embroidery" tailoring
shop and had been paying rent for his tenanted shop room to the
Respondent No. 2 as per English Calendar Month and at present he is
paying rent with the office of the Learned Small Causes Court, Kolkata.
3. The respondent No. 2 being the landlord of the petitioner No.1 lodged a
written complaint dated 10.02.2017 against the petitioner on the
allegation that the petitioners were in the habit of teasing and abusing
him over the issue of permission for subletting the tenancy and change of
name of the tenancy.
4. That allegedly the same petition of complaint was time and again
submitted to the same police station over the same issue with the same
contents. From the bare perusal of the alleged complaint dated
10.02.2017 it reflects that the same was submitted to the Office-in-
Charge of Posta Police Station on 15.02.2017, 17.02.2017 and
24.02.2017.
5. That due to several complaints made by the Opposite Party No. 2, Posta
Police Station recorded several G.D.E. Nos. as follows:-
1) 118 dated 15.02.2017,
2) 128 dated 17.02.2017,
3) 391 dated 16.02.2017,
4) 419 dated 21.02.2017
5) 71 dated 01.03.2017 and
6) 59 dated 01.04.2017.
6. That consequent to recording of the aforesaid G.D.Es, on 03.04.2017 a
Sub Inspector of Posta Police Station, namely Md. Fajlu Haque made
an application before the Learned Special Executive Magistrate,
Central Division, Kolkata for drawing up proceeding under Section 107
of the Code of Criminal Procedure, 1973 against the petitioners.
7. That only one person was found to have been empowered to investigate
all the G.D.Es. and complaint of the Respondent No. 2 i.e. Sub
Inspector of Posta Police Station namely Md. Fajlu Haque and the
same person was also in charge of initiating proceedings under Section
107 of the Code of Criminal Procedure, 1973 against the petitioners.
8. On 04.04.2017, the Learned Special Executive Magistrate, Central
Division, Kolkata, on the basis of the report dated 03.04.2017, took
cognizance of the matter and by starting the impugned proceeding vide
M/SEM Case No. 12 of 2017, dated 04.04.2017, under Section 107 of
the Code of Criminal Procedure, 1973 served a show cause notice
upon the petitioners.
9. Subsequent to service of the aforesaid notice upon the petitioners, the
petitioners appeared before the Learned Special Executive Magistrate,
Central Division, Kolkata and participated in the proceeding.
10. That since the Learned Special Executive Magistrate, Central Division,
Kolkata on 13.09.2017 passed an impugned order, the said proceeding
was challenged by the petitioners before the Learned City Sessions
Judge, Kolkata in Criminal Revision no. 49 of 2018. On 23.08.2018,
the learned Sessions Judge, Kolkata on hearing, affirmed the order of
the learned Executive Magistrate.
11. That challenging the judgment and order dated 23.08.2018 passed by
the Learned Additional District and Sessions Judge, Fast Track Court
No. II, Bichar Bhawan, Calcutta in Criminal Revision No. 49 of 2018,
the petitioners preferred a revisional application before the Hon'ble
High Court at Calcutta.
12. That the said revisional application was recorded as C.R.R. No. 3155 of
2018 and the same was allowed by the Hon'ble High Court on contest
on 11.04.2019 by setting aside the order dated 13.09.2017 passed by
the Learned Special Executive Magistrate, Central Division, Kolkata in
proceeding of M/SEM Case No. 12 of 2017, dated 04.04.2017.
13. The Learned Special Executive Magistrate, Central Division, Kolkata by
its impugned order dated 08.08.2019 disposed of the proceeding in
M/SEM Case No. 12 of 2017, dated 04.04.2017 and thereby directed
the petitioners to execute a bond for keeping peace and tranquility in
the area for a period of one year starting from 08.08.2019.
14. Mr. Pawan Kumar Gupta, learned counsel for the petitioners has
submitted that the initiation of the impugned proceeding is an abuse
of the process of Court. The respondent has suppressed material facts
in the instant complaint amounting to suppressio veri and suggestio
falsi. The respondent has twisted material facts for initiating the
complaint case against the petitioners. That the instant proceeding
which has been initiated by the respondent is accentuated with
manifest, mala fide and the same was instituted in order to spite the
petitioners for sinister purpose.
15. That the entire proceeding is thus bad in law and is not maintainable
in the eye law.
16. That the respondent no. 2 has initiated the present proceeding in order
to create pressure upon the petitioners and also to coerce them to
vacate their tenanted portion.
17. That the entire proceeding is bad in law in view of the settled law that
the enquiry of the proceeding has to be completed within six months
and the same was not done in the present case.
18. That the impugned order was passed in violation of Section 116 (6) of
the Code of Criminal Procedure, 1973.
19. The Learned Special Executive Magistrate Central Division, Kolkata
has erred in passing the impugned order which is in gross violation of
Section 111 of the Code of Criminal Procedure, 1973.
20. That such non compliance of the mandatory provisions of the law has
vitiated the entire matter and has rendered the subsequent proceeding
as void.
21. The impugned proceeding is otherwise bad in law and is liable to be
set aside and /or quashed.
22. Mr. Kaushik Gupta, learned counsel for the Opposite Party No. 2
has submitted that admittedly a Civil Suit for eviction is pending
between the parties, but the proceedings under Section 107 Cr.P.C.
had been initiated as the petitioners have been threatening the
opposite party and abusing in filthy language, with even threat to kill.
23. Section 107 of the Code of Criminal Procedure, lays down:-
"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 tranquility or to do any
wrongful act as aforesaid beyond such jurisdiction."
24. The order under revision is as follows:-
"Order No.31
Dated 08.08.2019
........After going through the records it was
ascertained that there are several GDs and Police reported
by the complainant against OP's. The Police Officer has
received substantive ground that OP's may disturb peace
and tranquility in the locality.
After applying its mind. This Court is of the opinion
that, there is sufficient ground against OP to executive
bond for keeping peace and tranquility in the area for a
period of one year starting from today i.e. 08.08.19. DA
please take n/a and give update in this regard.
Sd/-
I.P.S.
DC/3rd BN.KAP"
25. Learned counsel for the petitioner has further submitted that the order
under revision is not in accordance with law and thus liable to be set
aside. It is also submitted that the opposite party has given a criminal
colour to a civil dispute, which is an abuse of the process of law and
court.
26. The following judgments have been relied upon on behalf of the
petitioner.
1) Moni Sikari vs State of West Bengal & Ors., CRR 212 of
1984, dated 16.11.1989, Calcutta High Court.
"7. It is clear that substance of the information is
not stated in the notice which merely gives a bad
name to the petitioners and sets down the clause
of the section. The report of the Officer-in-Charge
and the petition of the State have been referred to
but substance of the allegation contained therein
is not stated nor the copies of the same were sent
along with the notice. The petitioners were entirely
in the dark what they would show cause about.
In my opinion, the impugned order initiating the
proceeding under Section 107 Cr.P.C., 1973 is
illegal for non-compliance of the mandatory
provisions of Section 111 Cr.P.C., 1973 and it as
such liable to be quashed."
2) Rajender Singh Pathania and Ors. vs State of N.C.T. of
Delhi and Ors., Criminal Appeal No. 1582 of 2011 with
Criminal Appeal No. 1583 of 2011, on 12.08.2011.
"14. The object of the Sections 107/151 Criminal
Procedure Code are of preventive justice and not
punitive. Section 151 should only be invoked
when there is imminent danger to peace or
likelihood of breach of peace under Section
107 Criminal Procedure Code. An arrest under
Section 151 can be supported when the person to
be arrested designs to commit a cognizable
offence. If a proceeding under Sections
107/151 appears to be absolutely necessary to
deal with the threatened apprehension of breach
of peace, it is incumbent upon the authority
concerned to take prompt action. The jurisdiction
vested in a Magistrate to act under Section 107 is
to be exercised in emergent situation."
27. It is submitted by the learned counsel for the petitioner that the
mandatory provision of Section 111 Cr.P.C. has not been complied in
this case.
28. Section 111 of the Code of Criminal Procedure, lays down:-
"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."
29. The Copy of Notice dated 05.04.2017 at page 22 is perused. It is
seen that though it is a notice under Section 107 Cr. P.C., the
substance of the information as received has not been set forth in the
notice.
30. Learned counsel for the opposite party has on the other hand
submitted that the present proceedings were initiated only regarding
the conduct of the petitioners, which was disturbing the public
tranquility and there was apprehension of breach of peace. There being
sufficient materials on record and on being satisfied, the Learned
Magistrate passed the order under revision, which is in accordance
with law. Thus the dismissal of the revision is prayed for.
31. The relevant portion of the Police Report is reproduced here:-
".....Beg to submit before your honour that the above noted
accused persons habitually teases to the complainant
abuse most filthy languages and adopt various ways to
harass and threatened to the complainant over the issue to
change the tenanted name of premises no. 8 Balaram Dey
Street, Kolkata 700 006 as the accused persons wants to
sublet the said room but the landlord that is complainant
denied to do the same. Thereof the above noted accused
person came to the complainant business place of 5 Nalini
Seth Road, Kolkata 000007 and creating various type of
disturbance."
32. On perusal of the order under revision, it is seen that the Magistrate
on being satisfied with the police report submitted on inquiry and also
other facts and circumstances, passed the order dated 08.08.2019.
33. From the record it is seen that:-
1) Section 111 Cr.P.C. has not been complied with as the
substance of information as received has not been set forth in
the notice under Section 107 Cr.P.C.
2) The police report at page 22, which was relied upon by the
Executive Magistrate while passing the order under revision
dated 08.08.2019, is only on the basis of the written complaint
and not even on a prima facie inquiry as to its contents. The
finding of the Magistrate that 'The police officer has received
substantive ground that OP's may disturb peace and
tranquility in the locality' is totally without any basis and thus
the order under revision being not in accordance with law is
liable to be set aside.
34. CRR 2750 of 2019 is allowed.
35. The order dated 08.08.2019 passed by the Special Executive
Magistrate, Central Division, Kolkata in M/SEM Case No. 12 of 2017,
dated 04.04.2017, under Section 107 of the Code of Criminal
Procedure, 1973 and the proceedings therein, is hereby quashed.
36. No order as to costs.
37. All connected Applications stand disposed of.
38. Interim order if any stands vacated.
39. Let a copy of this judgment be sent to the learned Trial Court forthwith
for necessary compliance.
40. Urgent Photostat Certified copy of this Judgment, if applied for, be
supplied expeditiously after complying with all necessary legal
formalities.
(Shampa Dutt (Paul), J.)
