Balkishan Shokeen vs The State Of Delhi And Others
1998 Latest Caselaw 284 Del

ORDER

A.K. Srivastava, J.

1. The petition has been filed under Section 482 of the Code of Criminal Procedure with a prayer that judgment and order dated 9.10.1996 passed by Shri I.C.Tewari, Additional Sessions Judge in Crl.R.No.25/96 whereby orders dated 12.4.1996 passed by Special Executive Magistrate, Delhi in the matter relating to breach of peace under Sections 107 and 111 be quashed.

2. The order dated 12.4.1996 passed by the Special Executive Magistrate reads as follows :-

"Heard the I.O. I am satisfied from the information received and facts before me and of the view that there are sufficient grounds to proceed u/s 107/150 Cr.P.C. against respondents. Issue notice u/s 107/111 Cr.P.C. to the respondents. Case to come up."

3. Thereafter on 3.6.1996, the same Special Executive Magistrate passed the following order in the same proceedings.

"Respondents are present except No.3 Mrs.Sudha Dahiya, I.O. & P.W. also present. Issue available warrant to No.3 Sudha Dahiya and ordered that they must bring interim surety on next date. A letter to SHO to report whether respondents weapon has been deposited in Malkhana of Sonepat and case be sent to licensing branch for cancellation of their weapon. Heard both the parties. It is learnt that on 24.9.93 Miss Sudha Dahiya was married to complainant Bal Kishans' booken's son. Respondents No.1 and 2 during the proceedings are verbally warned to behave in a disciplinary manner. Case to come up on 10.7.96 at 2.00 P.M. Date & time announced in the open court. The statement of I.P., P.W. and respondent Raj Narain is recorded."

4. The persons against whom notice were issued filed a Criminal Revision Petition No.25/96, which was heard by Shri I.C.Tewari, Additional Sessions Judge. It was disposed of vide the impugned order dated 9.10.1996. Learned counsel for petitioner vehemently contended before me that the orders dated 12.4.1996 and 3.6.1996 passed by the Special Executive Magistrate were interlocutory orders and as such revision was barred under the provisions of Section 397 Cr.P.C. This petition was filed on 12.3.1997 whereas the impugned judgment and order of the learned Additional Sessions Judge was made on 9.10.1996. There is no explanation as to why the petitioner waited for almost five months to challenge the order of the learned Additional Sessions Judge especially when the matter related to breach of peace and was to be dealt with by an Executive Magistrate.

5. On hearing the learned counsel for petitioner and on going through the record of the case, for the reasons given in the following paragraphs, I do not consider it to be a fit case where this Court should interfere under the provisions of Section 482 of the Code of Criminal Procedure.

6. The matter before the Special Executive Magistrate was that of breach of peace and not of trial of any offence. The petitioner had made a complaint to the Police regarding breach of peace and the police after preparing a kalendra approached the concerned Special Executive Magistrate whereby order dated 12.4.1996 was passed under which the Magistrate directed issuing of notice under Section 107/111 Cr.P.C. Section 111 Cr.P.C. lays down that when a Magistrate acting under Section 107 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 enforced and the number, character and class of sureties (if any) required. Order dated 12.4.1996 did not at all comply with the requirements of Section 111 Cr.P.C. The learned additional Sessions Judge in the revisional order has also made a mention that the Special Executive Magistrate did not apply his mind while acting under Section 107 Cr.P.C. as he did not comply with the provisions of Section 111 Cr.P.C. There is nothing on record to show that by any subsequent order the Special Executive Magistrate complied with the provisions of Section 111 Cr.P.C.

7. The petitioner also did not bring to the notice of the learned assitional Sessions Judge that the Special Executive Magistrate had complied with the provisions of Section 111 Cr.P.C.

8. Before me as well the petitioner has not filed anything to show that the Special Executive Magistrate had complied with the provisions of Section 111 Cr. P.C.

9. Further, it is to be noted that there is a mandate in Section 117 that no person shall be ordered to give security of a nature different from, or of an amount larger than, or for a period longer than, that specified in the order made under Section 111. Therefore, if for arguments sake the matter is now sent back to the Special Executive Magistrate then for want of compliance of Section 111 Cr.P.C. in his order dated 12.4.1996, that Magistrate cannot make order under Section 117 Cr.P.C. in view of the aforesaid mandate. As such, if the petition is allowed, it would lead to a futile exercise.

10. Moreover, the petitioner apprehended breach of peace in the year 1996 and on the basis of the kalendra prepared by the police the Special Executive Magistrate had issued notice under Section 107 of the Cr.P.C. on 12.4.1996. According to the records the last alleged threats allegedly given by the respondents was on a date prior to 12.4.1996. There is nothing on record to show that thereafter the respondents gave any threat to the petitioner. On inquiry, learned counsel for petitioner orally informed this Court that even after 12.4.1996 respondents were giving threats to the petitioner but he conceded that no written complaints were made by the petitioner to the Police. Only this much was urged that the Police refused to take the complaints. Now, if since April, 1996 till today i.e. March 24, 1998 there has not been a breach of peace by the respondents, in my opinion, it would entirely be a futile exercise to re-open the kalendra of the Police on the basis of which notice under Section 107 was issued by the Special Executive Magistrate on 12.4.1996.

11. The proceeding under Section 107 of Cr.P.C. are preventive in nature and not adjudicative of any crime. Had a crime been committed, trial would have been directed to be made notwithstanding lapse of more than two years but in the matter of breach of peace being dealt with by Special Executive Magistrate, in my view, in view of the facts of this case, it would not be appropriate to re-open the issue. If there is any threat of the breach of peace by the respondents, the petitioner may again move for the preventive proceedings under the Cr.P.C. in motion as there would not be any legal bar for the same as the proceedings would be on the basis of fresh events.

12. With the aforesaid observations, the petition is dismissed.