Ganesh Kumar Sharma vs State & Another
2011 Latest Caselaw 1963 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                           Judgment delivered on: April 05, 2011

+      CRIMINAL M.C.No.3157/2009 & CRL.M.A.10606/2009

       GANESH KUMAR SHARMA                ....PETITIONER
               Through: Mr. K.K. Sharma, Sr. Advocate with
                             Ms. Bhanita,    Advocate   &   Ms.     Neeru,
                             Advocate.

                        Versus

       STATE & ANOTHER                           .....RESPONDENTS

Through: Ms. Fizani Husain, APP for the State/respondent No.1 along with SI Rohit Srivastava, P.S. Krishna Nagar.

Mr. L. Roshmani, Advocate with Mr. Israr Ahmed, Advocate for respondent No.2.

CORAM:

HON'BLE MR. JUSTICE AJIT BHARIHOKE

1. Whether Reporters of local papers may be allowed to see the judgment?

2. To be referred to the Reporter or not ?

3. Whether the judgment should be reported in Digest ?

AJIT BHARIHOKE, J.(ORAL)

1. Being aggrieved by the impugned show cause notice dated

11.07.2009 issued by the Special Executive Magistrate, East District,

Delhi, the petitioner Ganesh Kumar Sharma has filed the instant petition

under Section 482 Cr.P.C. seeking quashing of the proceedings under

Section 107/150 Cr.P.C. initiated against him and pending in the court of

Special Executive Magistrate, East District as case No.117/2009. The

petitioner has also prayed for direction to the SHO P.S. Krishna Nagar to

register an FIR against respondent No.2 and his son on the basis of his

complaint dated 26.03.2009.

2. The petitioner and respondent No.2 are at dispute in respect of a

shop forming part of House No.2, Satnam Park, Chander Nagar, Krishna

Nagar let out by the petitioner to respondent No.2. An eviction petition in

respect of the said shop was filed by the petitioner which was allowed on

the ground of bona fide requirement and revision petition against the said

eviction order has also been dismissed by the High Court. Learned

counsel for respondent No.2 submits that respondent No.2 is planning to

challenge the order passed by the High Court in revision petition.

3. That on 26.03.2009 on the receipt of information from lady

Constable Mamta of police control room, DD No.24A was registered at P.S.

Krishna Nagar at 2:55 pm, wherein it was recorded that the tenant of

House No.2, Satnam Park, Chander Nagar was threatening to kill the

landlord.

4. That despite of call made by the complainant to PCR, the police

control room van did not arrive at the spot. However, Head Constable

Kailash of P.S. Krishna Nagar along with one Constable reached at the

spot and asked the complainant, respondent No.2 and his son to reach

Police Station. On reaching Police Station, the complainant got recorded

his statement. He also lodged his complaint by e-mail to Commission and

DCP concerned on 26.03.2009. On the next day, when the complainant

visited the Police Station to enquire about the fate of his complaint, the

Investigating Officer Head Constable Kailash submitted that the case was

being registered. Despite the assurance, the police failed to register the

case. This led to petitioner writing a letter on 13.04.2009 to the SHO, P.S.

Krishna Nagar requesting him to register a case against respondent No.2

and his son on the basis of his complaint. The police instead of registering

the complaint against respondent No.2 and his son, submitted a

Kalandara under Section 107/150 Cr.P.C. against the petitioner and the

Executive Magistrate on consideration of said Kalandara, served

impugned notice under Section 111 Cr.P.C. on the petitioner.

5. In the instant case, the foundation of impugned notice is the

following statement made by respondent No.2 Mohd. Shabir before Head

Constable Kailash:

"I am running a barber shop in House No.2, Satnam Park for the last 40 years. Today on 26.03.2009 at about 2:00 pm, son of the landlord Ganesh Kumar Sharma, Advocate came and parked his car in front of his shop and went inside the house. When I came out and requested him to remove the car from there, Ganesh Kumar Sharma refused to remove the car from there and said that if you are feeling any difficulty, you may vacate the shop. On this, I replied that the court case is already pending and what is your problem, this resulted in exchange of hot words and abuses. The allegation regarding threat given on the point of razor is wrong."

6. It may be noted that Ganesh Kumar Sharma, Advocate was also

examined by Head Constable Kailash who stated that in the afternoon of

26.03.2009, he went inside the house after parking his car. When he

came out, respondent No.2 asked him to remove the car and he

responded that he would remove the car. Respondent No.2, however,

threatened that if the car is not removed, he would break it and started

abusing him. In the meanwhile Shakir son of respondent No.2 came out of

the shop and threatened him that he would slash his neck with the "ustra"

(razor). On aforesaid allegations, the complainant requested for

appropriate action against respondent No.2 and his son.

7. Learned Sr. Counsel for the petitioner has submitted that aforesaid

statement made by the petitioner discloses commission of cognizable

offence. The police instead of registering FIR on the basis of said

complaint forwarded the kalandara under Section 107/151 Cr.P.C. against

the complainant and the Special Executive Magistrate, without conducting

any inquiry or applying his mind to the facts and circumstances of the

case, arbitrarily served the petitioner with show cause notice under

Section 111 Cr.P.C., which is untenable in law. Thus, learned Sr. Counsel

for the petitioner has strongly urged for quashing of the kalandara as well

as show cause notice under Section 111 Cr.P.C.

8. Before adverting to the factual matrix of the case, it would be

appropriate to have a look on the law relating to the scope and object of

Section 107 of the Code of Criminal Procedure. In Madhu Limaye and

another v. Sub-Divisional Magistrate and others, AIR 1971 S.C.

2486, the Supreme Court while considering the scope of Section 107 of

the Code of Criminal Procedure held that Section 107 of the Code of

Criminal Procedure is aimed at persons, who cause a reasonable

apprehension of conduct likely to lead to a breach of the peace or

disturbance of the public tranquility. This provision is in aid of orderly

society and seeks to nip in the bud conduct subversive of the peace and

public tranquility.

9. From the statements of the parties recorded by Head Constable

Kailash, it is clear that there is a landlord tenant dispute between the

parties regarding which proceedings were pending at the relevant time.

That being so, it is difficult to infer in absence of any cogent evidence that

the members of public were affected by the alleged exchange of hot

words between the petitioner and respondent No.2 or there was any

possibility of the breach of peace or disturbance of public tranquility,

particularly when the petitioner himself has informed the PCR by giving a

telephone call. The sole object of initiating proceedings under Section 107

of the Code of Criminal Procedure is preventive with a view to ensure

maintenance of public peace and tranquility and it cannot be used as a

handle to settle private dispute between the parties. Further, non-

application of mind to the facts and circumstances of the case by the

Special Executive Magistrate is apparent from the fact that in the notice

under Section 111 Cr.P.C., learned Special Executive Magistrate has tried

to project as if that the petitioner had been fighting with and abusing the

landlord time and again on the issue of parking of car, whereas in the

statement of respondent No.2 there is a reference to only one incident

which took place on 26.03.2009. Even otherwise from the aforesaid

statement of respondent no.2, it cannot be inferred that the act of the

petitioner had potential to breach public peace and tranquility.

Consequently, in my considered view, the proceedings under Section 107

of the Code of Criminal Procedure against the petitioner and the

consequent notice under Section 111 Cr.P.C. are without any justification

and liable to be quashed.

10. Otherwise also, as per Section 107 Cr.P.C., the Special Executive

Magistrate can seek bond for maintaining peace for a period not

exceeding one year. In the instant case, show cause notice under Section

111 Cr.P.C. was issued on 11.07.2009 i.e. slightly less than two years

back. Respondent No.2 when asked whether after 26.03.2009 any quarrel

or fight has taken place between him and the petitioner replied in the

negative. This imply that since the issue of show cause notice under

Section 111 Cr.P.C., the petitioner has not indulged in any activity, which

could have caused breach of peace and public tranquility. As such, even

it is assumed for the sake of arguments that notice under Section 111

Cr.P.C. was issued rightly, now after almost two years from the date of

issue of notice, there is no reason to continue with the preventive

proceedings under Section 107/150 Cr.P.C.

11. In view of the above, the petition is allowed. Proceedings under

Section 107/150 Cr.P.C. as well as show cause notice under Section 111

Cr.P.C. are hereby quashed.

(AJIT BHARIHOKE) JUDGE APRIL 05, 2011 pst