Ashok Kumar Vijhani And Others vs State & Ors.
2011 Latest Caselaw 2467 Del

Citation : 2011 Latest Caselaw 2467 Del
Judgement Date : 9 May, 2011

Delhi High Court

Ashok Kumar Vijhani And Others vs State & Ors. on 9 May, 2011

Author: Ajit Bharihoke

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                                            Decided on: May 09, 2011

+      CRL.M.C. 3037/2009 & CRL.M.A.10248/2009 (stay)

       ASHOK KUMAR VIJHANI AND OTHERS               ....PETITIONERS

                    Through:   Mr. Harish Gupta, Advocate.

                        Versus

       STATE & ORS.                                 ....RESPONDENTS

Through: Ms. Fizani Husain, APP for R-1 to 3.

Respondent No.4 in person.

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. The short point involved in this case whether the proceedings

under Section 107/151 CrPC which are preventive in nature can

allowed to be continued beyond a period of six months from the date

on which show-cause notice under Section 111 of the Code of Criminal

Procedure was served upon the person against whom the proceedings

under Section 107 CrPC is initiated?

2. Relevant facts for the disposal of this petition are that

proceedings under Section 107/151 Cr.P.C. were initiated against the

petitioners and respondent No.4 Shitij Kumar pursuant to 'Kallandara'

dated 15.02.2009 P.S. Model Town filed by the police before the

Special Executive Magistrate (North-West). On being satisfied that

there was a reasonable apprehension of breach of peace and

disturbance of public tranquillity, the Executive Magistrate concerned

issued show cause notices under Section 107/111 Cr.P.C. on the parties

including the petitioners and called upon them to execute bonds in the

sum of `15,000/- with one surety in the like amount respectively for

keeping peace during the course of proceedings. Proceedings are still

pending.

3. Learned counsel for the petitioners has contended that the

record would show that pursuant to the 'Kallandara' under Section

107/151 CrPC, learned Special Executive Magistrate, North-west,

Delhi served the petitioners with the show-cause notice under

Section 111 CrPC and also ordered them to furnish an interim bond

for maintaining peace and tranquillity in the sum of Rs. 15,000/- with

one surety. Undisputedly, aforesaid proceedings are pending till

date. Learned counsel has drawn my attention to Section 116(6)

CrPC wherein it is provided that the enquiry under Section 111 CrPC

shall be completed within a period of six months from the date of its

commencement and if it is not so completed, the proceedings, on

expiry of period shall stand terminated unless the period of enquiry

is extended by the Magistrate concerned by recording special

reasons for doing so. In the light of aforesaid mandatory provision

of law, learned counsel has pressed for the quashing of the

proceedings under Section 107/151 CrPC initiated against the

petitioners.

4. Learned APP as also the respondent No.4, on the contrary, have

submitted that the petitioners and respondent No. 4 are at dispute in

respect of the rights in property No. A2/6, Model Town, Delhi and for

that reason, for quite some-time, they indulged in fighting with each

other. The tension between them is still persisting, therefore, there is

no merit in request to quash the proceedings against the petitioners

under Section 107/151 CrPC.

5. I have considered the rival contentions and perused the record.

Instant petition was filed on 02nd September, 2009 and the proceedings

before Special Executive Magistrate were stayed vide order dated 03rd

September, 2009. Admittedly, show cause notice under Section 111

CrPC was served on the petitioners on 16 th February, 2009. As per the

copies of the proceedings before Special Executive Magistrate placed

on record, it is seen that the last proceedings were conducted on 25 th

August, 2009 i.e. after the expiry of six months from the date on which

show cause notice under Section 111 CrPC was served on the

petitioners. There is nothing on the record to suggest that learned

Special Executive Magistrate has extended the period of enquiry

beyond six months by recording special reasons in this regard.

Therefore, it is obvious that the continuation of proceedings beyond six

months of date of service of show cause notice i.e. 16th February, 2009

is in contravention of Section 116 (6) CrPC, which reads thus:

"116. Inquiry as to truth of information.

(6) The inquiry under this section shall be completed within a period of six months from the date of its commencement, and if such inquiry is not so completed, the proceedings under this Chapter shall, on the expiry of the said period, stand terminated unless, for special reasons to be recorded in writing, the Magistrate otherwise directs:

Provided that where any person has been kept in detention pending such inquiry, the proceeding against that person, unless terminated earlier, shall stand terminated on the expiry of a period of six months of such detention".

6. Otherwise also, perusal of Section 107 CrPC would show that

under this provision, the Magistrate can bind a person with a bond for

maintaining peace and public tranquillity for the period not exceeding

one year. Aforesaid one year period with effect from initiation of

proceedings on 16.02.2009 when petitioners were bound down by

interim bond for maintaining peace has already expired. For this

reason also, the proceedings under Section 107/151 CrPC are liable to

be quashed. Further, on perusal of the latest status report dated 06 th

May, 2011 under the signatures of SHO, P.S. Model Town placed on

record, it transpires that as per the record of police station Model

Town, no complaint has been filed by either of the parties against each

other after the preparation of this 'Kallandara'. This circumstance also