Delhi High Court
Ashu & Ors vs State Of Nct Of Delhi & Ors on 14 October, 2015
Author: Suresh Kait
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment delivered on: 14th October, 2015
+ CRL.M.C. 3902/2015
ASHU & ORS ..... Petitioners
Represented by: Mr. Rohit Agarwal,
Advocate.
Versus
STATE OF NCT OF DELHI & ORS ..... Respondents
Represented by: Mr. Ravi Nayak, Additional
Public Prosecutor for the
State with SI Amit Kumar,
P.S. Bindapur.
CORAM:
HON'BLE MR. JUSTICE SURESH KAIT
SURESH KAIT, J. (Oral)
Crl. M.A.No. 13857/2015 (for exemption)
Exemptions allowed, subject to all just exceptions.
Accordingly, the application is allowed.
CRL.M.C. 3902/2015
1. Vide the present petition, the petitioners seek directions thereby
quashing the Kalandara dated 07.08.2015 having DD No.42-A issued by
SEM (South West), Delhi, alongwith subsequent proceedings therein.
2. The aforesaid Kalandara was recorded on the complaint of Smt.
Pinki and accordingly, vide order dated 07.08.2015, alleged show-cause
notice was issued against the petitioners. However, learned counsel for
the petitioners disputes the same and submits that the petitioners were
taken directly in custody and sent to judicial custody without having
admitted on bail. Thus, the learned SEM failed to comply with the
directions passed by this Court in case bearing Crl. M.C. No.2077/2006
titled as 'Asha Pant Vs. State & Ors.' and Crl. M.C. No. 2416/2006 titled
as 'Kanwal Chaudhri & Anr. Vs. State', decided on 17.03.2008, whereby
held as under:-
"13. Section 107 (1) CrPC gives the power to the
SEM to issue a show cause notice to a person as to
why "he should not be ordered to execute a bond
with or without surety for keeping the peace for
such period, not exceeding one year, as the
Magistrate thinks fit." The Section envisages that
the SEM should base the above action on the
information that he has received that such person
is likely to commit breach of peace, disturb public
tranquility and on receipt of such information he
should form "opinion that there is sufficient
ground for proceeding ...." The very wording of
the above Section indicates that it is a two step
process. First, the Magistrate receives information
on which he forms an opinion. On the basis of such
opinion, he issues a notice. This is the second step.
It was only after the person to whom such notice is
issued response or fails to respond, as the case may
be, the provisions of Section 111 will come into
play and an order can be made asking such person
to furnish a bond.
xxxx xxxx xxxx
16. It is abundantly clear from the above
observations of the Supreme Court that the powers
under Section 107 and the Section that follow are
to be exercised by Executive Magistrate with great
care and caution. At every stage an SEM would be
required to state reasons for taking such action.
xxxx xxxx xxxx
18. The sum total of the above discussion is that in
every case, it would be incumbent upon the SEM to
follow the steps envisaged in Section 107 strictly in
accordance with the procedure outlined in the
provisions of the CrPC set out thereafter. Such
steps should be preceded by the formation of an
opinion in writing by an Magistrate which should
be discernable when the decision is challenged in
the Court. Such formation of the opinion should,
normally, be based on some preliminary enquiry
that should be made by an SEM to justify the
formation of an opinion. Of course this cannot be
straitjacketed since there may be cases where an
SEM may to form an opinion right away to prevent
the breach of peace or public tranquility. However,
that should be the exception and not the rule. For
instance, as in the present case, where the dispute
is essentially between the neighbors in a property,
or between a landlord and tenant residing in the
same premises, the notice under Section 107 CrPC
should not be issued only upon a perusal of the
Kalandara prepared by the police. Such a
mechanical exercise without the SEM forming an
independent opinion on the basis of some sort of a
preliminary enquiry would render the exercise of
the power vulnerable to being invalidated.
xxxx xxxx xxxx
20. There is nothing in the impugned notices issued
by the SEM to indicate that the SEM had formed an
opinion as required under Section 107 prior to
issuing such notices. The minimal enquiry that was
required on the facts and circumstances of the
present case was not undertaken. On the face of it,
therefore, neither of the notices and summons can
be sustained in law. In any event the question of
issuing a summons under Section 113 did not arise
at all, since that was a subsequent step and not to
be exercised simultaneously with the issuance of a
notice under Section 107 CrPC.
xxxx xxxx xxxx
22. A copy of this order be sent to the Government
of National Capital Territory, Delhi for issuing
appropriate instructions to the SEMs exercising
their powers under Section 107 CrPC. Copies of
the judgment of this Court in Tavinder Kumar v.
State 40 (1990) DLT 210 will also be circulated by
the GNCTD to the SEMs for their future
guidance."
3. The learned Additional Public Prosecutor appearing on behalf of
the State has fairly admitted that the learned SEM has not followed the
procedure laid down by this Court in the aforesaid case.
4. In view of the directions dated 17.03.2008 of this Court and
statement of the learned Additional Public Prosecutor for the State, I
hereby quash the order dated 07.08.2015 with liberty to the concerned
SEM to take steps, if required, after following the procedure laid down
by this Court in the aforenoted case.
5. In view of the above, the present petition stands allowed.
SURESH KAIT
(JUDGE)
OCTOBER 14, 2015
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