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Dharam Vir Etc. Vs. Lalita Prasad Etc. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtDelhi High Court
Decided On
Case NumberCriminal Revision Appeal No. 345 of 1972
Judge
Reported in1973RLR144
ActsConstitution of India - Article 19; Code of Criminal Procedure (CrPC) , 1898 - Sections 107
AppellantDharam Vir Etc.
RespondentLalita Prasad Etc.
Advocates: S.C. Bhuttan and; P.P. Malhotra, Advs
Excerpt:
the case discussed the necessity of recording the reasons by the magistrate, while exercising the power of arrest within the provisions of section 107, 112 and 114 of the criminal procedure code, 1898 - it was held that the magistrate is required to record the reasons before initiating the proceedings, to indicate the judicial application of his mind on the received information, which had necessitated the proceedings - - lalita prashad made good his escape and contacted the 'police. i am satisfied that there are sufficient grounds for initiating proceedings u/s. 3,000.00 each with one surety each in the like amount for keeping peace for a period of one year......under section 435 of the code and the grievance raised was that the orders passed by the sub divisional magistrate, darya ganj, delhi which purported to be under sections 107/112 of the code against them were illegal and deserved to be quashed. (2) lalita prashad resident of house no. 3584, gali hakim wali, darya ganj, delhi submitted an application under section 107 of the code against the petitioners under the date 28.1.1972 in which he alleged that on the 5th september, 1971 armed with knives and daggee is having made preparations to kill him the petitioners had made a show of force causing apprehension of danger to his life. lalita prashad made good his escape and contacted the 'police. some of the petitioners are then alleged to have absconded. the remaining were allegedly.....
Judgment:

P.S. Safeer, J.

(1) This petition is in consequence of the report dated the 18th September, 1972 submitted by Mr. D.C. Aggarwal, Additional Sessions Judge, Delhi under section 438 of the Criminal Procedure Code, hereafter called 'the Code'. The learned Add1. Sessions Judge was moved by the petitioners through a petition preferred under section 435 of the Code and the grievance raised was that the orders passed by the Sub Divisional Magistrate, Darya Ganj, Delhi which purported to be under sections 107/112 of the Code against them were illegal and deserved to be quashed.

(2) Lalita Prashad resident of house No. 3584, Gali Hakim Wali, Darya Ganj, Delhi submitted an application under section 107 of the Code against the petitioners under the date 28.1.1972 in which he alleged that on the 5th September, 1971 armed with knives and daggee is having made preparations to kill him the petitioners had made a show of force causing apprehension of danger to his life. Lalita Prashad made good his escape and contacted the 'police. Some of the petitioners are then alleged to have absconded. The remaining were allegedly called by the police and it was stated that they have an undertaking in writing that they would not raise any quarrel in future.

(3) The applicant Lalita Prashad having made the afore-mentioned allegations in paragraph 5 of the application proceeded to stale in paragraph 7 thereof that on the 20th December, 1971 when the applicant was returning from the court of Sh. H.C. Goel. Addl. Sessions Judge, Delhi after attending his revision against Karam Vir, Vijay etc., all the respondents threatened him with dire consequences in case he continued his revision petition in the afore-mentioned court.

(4) On the basis of those allegations the applicant moved the court submitting that he apprehended grave danger to his person and property and that appropriate action may be taken against the respondents under section 107 of the Code.

(5) The Sub Divisional Magistrate, Darya Ganj Delhi on the 29th January, 1972 called for a report from the S.H.O., Darya Ganj, Delhi for the 7th February, 1972. The S.H.O. submitted his report dated the 10th March, 1972 in which he staled that both the parties were residing in the same house and were having quarrels. He also stated that in future there was likelihood of breach of peace by the respondents (sic). The trial court then on the 25th March 1972 passed the order:- 'Call both the parties through S.H.O. for 5.4.1972. On the 5th April, 1972, the court it is stated was busy with administrative work and on the 10th April, 1972, it passed the following order:-

'THEcomplainant is present, but the other party has not turned lip. He has stated that he apprehends danger to his life and property at the hands of Dharam Vir, Ranbir, Vijay Ramesh @ Jit Singh, Ajit and Shakti. I have gone through the police report. I am satisfied that there are sufficient grounds for initiating proceedings u/s. 107/112 Cr. P.C. against the above named respondents. Issue notices u/s 107/112 Cr. P.C. to all the above respondents Along with summons requiring them as to why they should not be ordered to execute personal bonds in the sum of Rs. 3,000.00 each with one surety each in the like amount for keeping peace for a period of one year. Case to come up on 22.4.72.'

It appears that the notices were prepared in the cyclostyled forms which bear the heading

'NOTICESunder section 107/112 Cr. P.C.' At the end of the notices words, are 'Given under my hand and seal of the court the 11th day of April, 1972.' The notices which I have seen bear no seal. The counsel appearing for the State is unable to show that the notices bearing the date 11th day of April, 1972 were processed through any serving agency and were served on the petitioners. His reliance is on the endorsement on the notices, which is to the effect:-'Notice read over and explained to the respondents.'

THElearned counsel for the State submits that when the present petitioners appeared before the Sub-Divisional Magistrate, be acted under section 113 of the Code and read over the notices issued to the petitioners. The contention suffers from many fallacies. There is no sanction in any provision of the Code that having issued the notices under the date 11.4.1972 the court could keep them tightly on the record awaiting that the petitioners will appear before it on a particular date when the court will 'cause service of the notice',. by reading out to the petitioners whose presence was assuredly expected.

(6) Even otherwise section 113 does not support the contention. The provision, is:-(...)

THEprovision has reference to section 112, which precedes it. That provision, is :-(-.)

THEauthority given by section 113 of the Code could be utilised by the Court only if the person in respect of whom action was being taken under section 112 was to be present in Court. There was no warrant for the trial court to keep the notices on its own record and it derived no authority from section 113 of the Code to read out the notices and explain them to the petitioners when they appealed on the 6th May, 1972

(7) I find that the order passed on the 10th April, 1972 and the alleged notices bearing dates 11th April, 1972 demonstrate the complete disregard shown by the learned Sub- Divisional Magistrate to the imperative requirement of sections 107/112 of the Code. The Courts may act in error, but no Court can abdicate its judicial duty. Section 107(1) of the Code, is :-(...)

THESub Divisional Magistrate who was acting under it could derive his jurisdiction for proceeding in the manner provided by the provisions succeeding section 107(1) of the Code only on recording sufficient grounds for forming the opinion that there was reason to proceed against the petitioners in accordance with the provisions that followed.

(8) Whenever information is received that any person is likely to commit a breach of peace or disturb the public tranquillity or to do any unlawful act that may probably occasion a breach of peace or disturb the public tranquillity, the Magistrate has to judicially apply his mind to the information so received and in the performance of his duiy has to record a speaking order enumerating those grounds, which may be constituting the basis for his opinion on account of which he may in the manner provided by the Code require the person against whom allegations are made out to show-cause why he should cot be ordered to execute a bond with or without sureties for beeping the peace for such period not exceeding one year as the Magistrate thinks fit to fix. Before the Magistrate can conclude that there is occasion for interfering with the freedom of the citizen guaranteed to him by Article 19 of the Constitution of India he was to record grounds for forming his opinion, which should be open to scrutiny by the Courts of superior jurisdiction. The order passed in this case as in many others discloses that the obligations imposed by section 107(1) of the Code were not properly appreciated.

(9) It would be only after recording a competent order under section 107 of the Code that the Magistrate will find his jurisdiction for proceeding in terms of section 112 thereof. That provision again requires that the Magistrate is to pass an order in writing setting forth the substance of the information received by him for the reason where of he is to require 'any person' to show cause under either of the sections mentioned in sections 112 of the Code. The order contemplated by section 112 will be the basis for issuing the show-cause notice. The show-cause notice by itself can not be an order under section 112 of the Code.

(10) Notices dated the llth April, 1972 do not discharge the obligations imposed by section 112 of the Code. These stereo-type notices were in complete disregard of the requirements of law. In a show cause notice to be issued under section 112 there should be sufficient allegations which the person receiving the notice should be able to read, understand and then be able to decide as to what cause he has to show against the allegations in the notice. A show cause notice otherwise purporting to be under section 112 of the Code remains invalid.

(11) A perusal of the original record presents a chain of illegalities including the one by which the petitioners were required to execute bail bonds for appearing before the Court. After discussing section 117 of the Code, the learned Additional Sessions Judge was right in pointing out that there was no sanction in that provision for ordering the petitioners to execute bail bonds.

(12) Even if it be taken that. on the 10th April, 1972 the Sub Divisional Magistrate passed a composite order under sections 107/112 of the Code, the order remains illegal. The entire proceedings starting with the order made by the Sub Divisional Magistrate on the 29th January, 1972 requiring of the S.H.O., Darya Ganj to submit his report, are hereby quashed. The petitioners are, however, directed to appear before the learned Sub Divisional Magistrate on the 31st January, 1973 who will proceed afresh to deal with the application preferred by Lalita Prashad.


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