Manish Chhabra vs State & Another
2011 Latest Caselaw 2754 Del

           IN THE HIGH COURT OF DELHI: NEW DELHI

+             CRL. M.C. No. 3605/2010

%             Judgment decided on: 23rd May, 2011

MANISH CHHABRA                                          ....PETITIONER

                            Through:      Mr. Rajat Wadhwa and Mr.
                                          Davinder Kumar, Advs.
                            Versus

STATE & ANOTHER                                   .......RESPONDENTS

                            Through:      Mr. Arvind Gupta, APP for the
                                          State-R-1.
                                          Mr. H.S. Arora, Adv. for R-2.
Coram:
HON'BLE MR. JUSTICE A.K. PATHAK

       1. Whether the Reporters of local papers                          No
          may be allowed to see the judgment?

       2. To be referred to Reporter or not?                             No

       3. Whether the judgment should be                                 No

            reported in the Digest?

A.K. PATHAK, J. (Oral)

1. By this petition under Section 482 of Code of Criminal

Procedure, 1973 (for short hereinafter referred to as 'Cr.P.C.'),

petitioners seek quashing of proceedings under Sections

107/111 Cr.P.C. pending before the Special Executive

Magistrate, Sarai Rohilla arising out of DD No. 17 dated 14 th

August, 2010 under Sections 107/150 Cr.P.C. registered at

Police Station Roop Nagar.

2. Factual matrix of the case as emerges from the record is

that the petitioner is son of landlady of respondent no.2.

Disputes are there between the landlady and respondent No. 2 in

respect of tenanted premises. Landlady has filed a suit for

possession before the Additional District Judge, Delhi which is

since pending. Prior thereto, respondent no. 2 had filed a suit for

permanent injunction against the landlady praying therein that

she be restrained from forcibly dispossessing him. In the said

suit, landlady had made a statement that she will not dispossess

the respondent no. 2 without due process of law. Consequently,

said suit had been decreed in terms of the statement of landlady.

It appears that petitioner as well as respondent no. 2 had been

filing complaints against each other before the Station House

Officer of Police Station Roop Nagar levelling allegations of

threats and harassment. As per the petitioner, respondent no. 2

had been threatening him with dire consequences. As against

this, grouse of respondent no. 2 was that petitioner, along with

some anti-social elements, had been threatening him in order to

compel him to vacate the tenanted premises. These complaints

had resulted in filing of kalandra under Sections 107/150

Cr.P.C. by SI Veer Singh before the Special Executive Magistrate,

Sarai Rohilla. It was alleged in the kalandra that on account of

quarrels between petitioner and respondent no. 2 there was

apprehension of disturbance of peace and tranquility in the area.

3. Special Executive Magistrate has taken cognizance of

kalandra and has issued notice dated 23rd August, 2010 to the

petitioner under Sections 107/111 Cr.P.C. calling upon him as to

why he be not directed to furnish a bond in the sum of `5,000/-

along with one surety in the like amount for keeping peace in the

area for a period of one year. Perusal of the notice shows that it

is in a printed format wherein blanks have been filled in by hand

to the effect that petitioner had been abusing and threatening

respondent no. 2 on account of non-payment of rent, as also to

get the tenanted premises vacated, as a consequence whereof,

there was apprehension of breach of peace in the area. Notice

has been issued by the Special Executive Magistrate without

holding an enquiry to form prima facie view that there was

apprehension of breach of peace on account of conduct of

petitioner nor any such order has been passed assigning the

reasons as to in what manner the conduct of the petitioner could

have resulted in breach of peace in the area. Magistrate has

merely incorporated the language of the section without giving

the express opinion indicating as to what was the sufficient

ground for initiating the proceedings. It may be noted that the

Investigating Officer, before drawing up the kalandra, did not

enquire into the factual aspect to satisfy himself that there was

apprehension of breach of peace in the area. Merely because

cross complaints were being filed by the petitioner and

respondent no.2, kalandra appears to have been registered.

4. In Sushma Arora vs. State & Ors. Crl. M.C. No.

3581/2006, proceedings under Section 107/150 Cr.P.C. were

initiated on the kalandra that was drawn up as a consequence of

disputes between landlord and tenant. It was held by a Single

Judge of this Court that being a landlord tenant dispute, there

was no justification for invoking the power under Section 107

Cr.P.C. On perusal of the kalandra as a whole, the court was

unable to find anything which would justify the SEM forming an

opinion that there was an imminent danger of breach of peace,

thus, kalandra was quashed. In Ram Prakash & Anr. vs, State

628 (1996) Delhi Law Times 528, where a dispute between

landlord and tenant had resulted in filing of Kalandra under

Section 107 Cr.P.C., a Single Judge of this Court held that the

disputes between landlord and tenant has nothing to do with

public tranquility or breach of peace. Repeated

complaints/counter complaints against each other would not

constitute an offence to invoke Section 107 Cr.P.C. Section 107

Cr.P.C. requires that there has to be sufficient ground for

proceeding against the person. No instance had been brought

on record to show that by lodging of complaint against the tenant

and the landlord disturbed the public tranquility or was going to

disturb the public peace. The purpose of Section 107 Cr.P.C. is

preservation of pubic peace and tranquility which question in the

facts of the case did not arise. This Section does not confer any

power on the Special Executive Magistrate to adjudicate or decide

disputes of civil nature or to decide the question of titles to

property or entitlement to rights. The power cannot be exercised

in a manner that would give material advantage to one party to

the dispute over the other. The allegations in the kalandra did

not constitute a threat of breach of peace or public tranquility.

5. The power under Section 107 would apply where the

Magistrate affirms his opinion on the basis of the information

that unless prevented from so acting the person would act to the

detriment of public peace and public tranquility. However, the

facts of the present case clearly indicate that the disputes are

between the landlady and tenant, be it regarding non-payment of

rent or for getting the premises vacated. The landlady has

already initiated civil action in this regard, inasmuch as,

landlady had given a specific statement before the Civil Court

that she would not get the tenanted premises vacated without

following the due process of law. Her this statement and the

pendency of civil suit at the time of drawing up kalandra also

makes the allegations contained in the kalandra suspicious.

6. Be that as it may, from the facts of this case, prima facie, it

does not even appear that conduct of petitioner may cause

apprehension of breach of peace and tranquility in the area as

alleged in the kalandra.

7. For the foregoing reasons, kalandra and consequent

proceedings emanating therefrom are quashed. Petition is

disposed of in the above terms.

A.K. PATHAK, J.

May 23, 2011/ga