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1996 Supreme(Del) 412
High Court Of Delhi
RAM PRAKASH - Appellant
Versus
STATE OF DELHI - Respondent
Decided On : 05/01/1996
The power under Section 107 Cr. P. C. can only be exercised when there is a sufficient ground to believe that a person's conduct is likely to lead to a breach of peace or a disturbance of public tranquility.
Headnote:
CRIMINAL PROCEDURE CODE - SECTION 107 - NOTICE ISSUED UNDER SECTION 107/111 CR. P. C. - SUFFICIENCY OF GROUNDS - REQUIREMENT OF SUFFICIENT GROUNDS FOR TAKING COGNIZANCE - INTERPRETATION OF SECTION 107 CR. P. C. - SCOPE AND PURPOSE OF SECTION 107 CR. P. C. - ABUSE OF POWER BY POLICE - INHERENT JURISDICTION OF COURT TO QUASH PROCEEDINGS.
Fact of the Case:
Petitioners, a father and son, were involved in a dispute with their tenant, Sh. D. N. Srivastava, over possession/vacation of property. The tenant lodged a complaint with the police alleging that the petitioners had threatened to kill him and his wife. The police recorded the statement of the tenant and his wife and booked the petitioners under Section 107 of the Code of Criminal Procedure (Cr. P. C.). The Special Executive Magistrate issued a notice to the petitioners under Sections 107/111 Cr. P. C., stating that there was an apprehension of breach of peace and public tranquility.
Finding of the Court:
The court found that the notice issued by the Special Executive Magistrate was non-application of mind and did not indicate any sufficient ground for taking cognizance. The court held that the dispute between the petitioners and the tenant was primarily a civil matter and did not involve any threat to public peace or tranquility. The court also found that the police had abused its power by relying solely on the testimony of the tenant and his wife without verifying the facts from other sources.
Issues: 1. Whether the Special Executive Magistrate had sufficient grounds to take cognizance and issue notice under Sections 107/111 Cr. P. C. against the petitioners. 2. Whether the dispute between the petitioners and the tenant constituted a threat to public peace or tranquility. 3. Whether the police had abused its power in booking the petitioners under Section 107 Cr. P. C.
Ratio Decidendi: 1. Section 107 Cr. P. C. is aimed at persons who cause a reasonable apprehension of conduct likely to lead to a breach of peace or a disturbance of public tranquility. It is an instance of preventive justice which the Courts are intended to administer. 2. 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. 3. In the instant case, the dispute between the petitioners and the tenant was primarily a civil matter and did not involve any threat to public peace or tranquility. 4. The police had abused its power by relying solely on the testimony of the tenant and his wife without verifying the facts from other sources.
Final Decision: The court quashed the impugned order issued by the Special Executive Magistrate under Sections 107/111 Cr. P. C.
( 1 ) THIS petition has been directed by Sh. Ram Prakash and Ashutosh, petitioners herein, against the order dated 18th December,1995 passed by the Special Executive Magistrate. Ram Prakash, petitioner No. 1 is retired Professor from the Institute of Public Administration, Delhi. Petitioner No. 2 is Managing Director of a Company known as Best Power, a Unit of General Signal. They are father and son. Petitioner No. 1 is owner of House No. B-48, New Delhi South Extension, Part-1, New Delhi. Second floor of the said premises belonging to petitioner No. 1 had been let out to one Sh. D. N. Srivastava. The said portion which was let out consists of one room attached with W. C. and bath on Barsati Floor. Petitioner No. 1 keptwith him two rooms, one kitchen, two bath and WCs and about 150 sq. ft. terrace in his possession. Since the tennant, Sh. D. N. Srivastava did not pay the rent and obtain illegal electric connection without paying electricity charges and unauthorisedly occupied passage for his kitchen which did not belong to him, therefore, petitioner No. 1 filed civil suit against the said D. N. Srivastava. He also lodged a report with police to remove unauthorised occupation of the passage by the said D. N. Srivastava.
( 2 ) SH. D. N. Srivastava also lodged complaint with the police on 17th Decem- ber,1995 indicating that the petitioners herein came to his tenanted premises and threatened him and his wife that they would kill them within three days. Prior to that also according to D. N. Srivastava, such threats were given by the petitioners for which complaints were lodged.
( 3 ) ON this complaint of Sh. D. N. Srivastava the police recorded the statement of his wife Meena Srivastava as well as of D. N. Srivastava and booked the petitioners under Section 107 of the Code of Criminal Procedure (Cr. P. C. ). A Kalandara was submitted to the Special Executive Magistrate , who happens to be the Assistant Commissioner of Police. In fact four Kalandaras were submitted two against the present petitioners and two against Sh. D. N. Srivastava.
( 4 ) GRIEVANCE of the petitioners is that the Executive Magistrate without application of mind took cognizance and issued notice to them under Sections 107/ 111 Cr. P. C. This Kalandara does not fulfil the ingredients of Section 107 Cr. P. C. Henceissuanceof notice undersection I II Cr. P. C. showscompletenon-application of mind on the part of the Special Executive Magistrate. The reason assigned at the time of issuing the notice is as under :-
"whereas from the report of the S. H. O. Kotia Mubarakpur, it appears that you, Ashutosh, S/o Ram Prakash, r/o 212, Sukhdev Vihar, a dispute with D. N. Srivastava, r/o B-48, N. D. S. E-I, New Delhi over possession/vacation of property No. B-48, NDSE-I. You are at logger head and have indulged in wrongful acts and as a result thereof cross cases vide F. I -R. No. 469 /95 under Sections 341/506 Indian Penal Code ,f. I. R. No. 484/95 under Section 341 Indian Penal Code , F. I. R. No. 507/95 under Sections 448/427/323, F. I. R. No. 541/95 under Sections 448/ 323 Indian Penal Code. have been registered atp. S. Kotia Mubarakpur, Delhi. Still you have been intimidating and threatening to D. N. Srivastava and causing disturbance in the area of P. S. Kotia Mubarakpur. From your wrongful acts, there is an apprehension of breach of peace and public tranquility. That you are likely to do a wrongful act, which may result in breach of peace within the local limits of my jurisdiction and since I am satisfied from the police report that there are sufficient grounds for taking proceedings against you. "bare reading of this notice shows that Executive Magistrate only picked up the language of the section and used the same in his notice. He of his own has not given any ground for taking cognizance.
( 5 ) I have heard petitioner No. I and Counsel for the State and perused the record. Admittedly the notice under challenge issued by the Special Executive Magistrate date
