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Mam Chand and ors. Vs. Commissioner of Police and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtDelhi High Court
Decided On
Case NumberCriminal Miscellaneous (Main) Appeal No. 31 of 1984
Judge
Reported in1985(9)DRJ112; 1985RLR240
ActsCode of Criminal Procedure (CrPC) , 1973 - Sections 111
AppellantMam Chand and ors.
RespondentCommissioner of Police and ors.
Advocates: P.K. Nayar,; S.T. Singh and; R.K. Garg, Advs
Cases ReferredState v. Mam Chand
Excerpt:
.....about the refusal on the part of the police officer in charge of the police station to record the information, as contemplated in subsection (1) of section 154. secondly, he could approach the concerned metropolitan magistrate for a direction in this behalf under section 156(3) of the code. lastly, the petitioners could well file a complaint against the culprits before the concerned metropolitan magistrate as contemplated in section 190 of the code. this petition is accordingly allowed and the impugned summons as well as the proceedings pending before respondent no.j.d. jain, j.(1) in this petition under section 482, code of criminal procedure (for short 'the code') the petitioners seek quashing of proceedings in case no. 5/84-j-criminal-l styled state v. mam chand etc. under section 107/150 to the code. (2) the property bearing no 784 which is a four storeyed quarter situated at raghbir nagar, new delhi, is the bone of contention between the petitioners and respondents 5 to 10. from a perusal of the record of the aforesaid case it would appear that security proceedings under section 107/150 of the code were initiated by respondent no. 2 who is an assistant commissioner of police with powers of executive magistrate at moti nagar, on the basis of a kalendra submitted to him by rajouri garden police on 31st december 1983. according to the said.....
Judgment:

J.D. Jain, J.

(1) In this petition under Section 482, Code of Criminal Procedure (for short 'the Code') the petitioners seek quashing of proceedings in Case No. 5/84-J-Criminal-l styled State v. Mam Chand etc. under Section 107/150 to the Code.

(2) The property bearing No 784 which is a four storeyed quarter situated at Raghbir Nagar, New Delhi, is the bone of contention between the petitioners and respondents 5 to 10. From a perusal of the record of the aforesaid case it would appear that security proceedings under Section 107/150 of the Code were initiated by respondent No. 2 who is an Assistant Commissioner of Police with powers of Executive Magistrate at Moti Nagar, on the basis of a Kalendra submitted to him by Rajouri Garden police on 31st December 1983. According to the said Kalendra which in turn is founded on daily diary entry No. 9 of the same date made by Si Teja Singh, Jagat Singh-respondent No. 7 reported to him while he was present in Janta Colony that the house in question which was D.D.A. property had been in occupation of Jagat Singh for the last several years although it had not been allotted by the D.D.A. to him. Anil Kumar-respondent No. 5 and Sunil Kumar-respondent No. 6 had also been living with him in the said house for some time. Mam Chand-peritioner, who too had been formerly living in the said house for some time, was aware of this fact However, he left the house and eloped with Neelam Kumari petitioner No. 2, who was formerly wife of one Prem Parkash, a few years ago but he again started asserting his claim over the said house taking advantage of the fact that Jagat Singh was in unauthorised possession of the same. The petitioners buried threats to Jagat Singh and others that they would kill them in case the possession of the house in question was not handed back to them. Apprehending that the petitioners might take law into their own hands and commit breach of peace any time in the absence of Anil Kumar and Sunil Kumar who used to go on their work during day time, he approached Si Teja Singh and requested him to take necessary action for ensuring safety to him and his property.

(3) A preliminary order was drawn up by the Executive Magistrate under section I I I in view of the information received by him through police kalendra and the petitioners were summoned to appear before the Executive Magistrate on 7th January 1984. They were served on 5th January 1984 with the said summons. However, instead of appearing before respondent No 2, the petitioners rushed to this Court with this petition for quashing the proceedings under section 107/150 of the Code initiated against them by respondent No. 2.

(4) The principal contention of the petitioners is that Rajouri Garden police has developed hostility towards them and, thereforee, they were being harassed by the police who had implicated them in various criminal cases. According to the averments made in this petition, petitioner No. I possesses land measuring about 950 sq. yards at Rajouri Garden, village Tatarpur and the said land was still with him although certain persons have been trying to grab the same. Besides that petitioner No. I has a plot bearing No. A-32, Janta Colony, Raghbir Nagar and he was locked in proceeding under section 145 of the Code in respect of the said plot because of the machinations of some unscrupulous persons and the Rajouri Garden police. Similarly, petitioner No. 2 also owns quarter No. 776 (four storey), Raghbir Nagar, but certain anti-social elements were out to harass them and grab the said quarter. Further, certain persons in connivance with the local police obstructed petitioner No. I when he was carrying out necessary repairs at his plot No J-8, Rajouri Garden, Village Tatarpur. He bad, thereforee, to institute a civil suit and obtained a temporary injunction which was granted by a Subordinate Judge on 2nd December 1983. Not only that, in May 1982 the police started externment proceedings in camera against petitioner No. 1. Taking advantage of the situation some persons wrongfully took possession of plot No. A-32, Janta Colony, Raghbir Nagar, belonging to him. The Deputy Commissioner of Police (West District) is not ready to release possession of the said plot even though in law possession of the same vests in Sub-Divisional Magistrate, Punjabi Bagh, who is seized of the proceedings under section 145 of the Code. Thus, according to him, the real motive for initiating proceedings under section 107/150 of the Code by the Police against the petitioner was to enable respondents 5 to 10 to grab the property in question. It is further the case of the petitioners that respondents 5 to 10 had stolen some of his belongings which were lying in quarter No. 784 and he went to the Police Station, Rajouri Garden, to lodge report with regard to the same. However, due to the hostile attitude of the police officials his report was not recorded. So, he was compelled to send a report in writing on 23rd November 1983 under certificate of posting but even then no action was taken by the police with regard to the same. Then, he tried to contact the police on telephone but in vain. However, he kept on writing to the police and sent letters dated 12 December 1983, 14th December 1983, 16th December 1983, 26th December 1983 and 27th, 12th December 1983 to Police Station Rajouri Garden and even to the Commissioner of Police but in vain. He asserts that the police as well as the councillors of the area are colluding with respondents 5 to 10 and, thereforee, he is being harassed in this manner.

(5) In the reply affidavit filed by respondents 5 to 10 it is asserted that the allegation about the belongings of the petitioner having been stolen by them is absolutely false and motivated because the quarter in question had, in fact, been in possession of Jagat Singh although not formally allotted to him by the D.D.A. and the petitioners have nothing to do with the same. It is specifically stated in the reply affidavit that Jagat Singh had been residing there for the last about seventeen years and he has got his ration card at the same address moreover, he is enrolled as a voter in the same constituency. Mam Chand-petitioner No. I, who was formerly residing with Jagat Singh in the house in question vacated the same about eight years ago after he had enticed petitioner No. 2. Thus, Jagat Singh claims to have been in actual and physical possession of the property in dispute since then notwithstanding the fact that there was no formal allotment in his favor by the Delhi Development Authority.

(6) Shri Prem Nath Arora, Station House Officer, Police Station Rajouri Garden, also filed an affidavit in reply on behalf of respondents I to 3. While refuting the allegation of malafide or basis on their part as against the petitioner, he has asserted that the petitioner is a person of shady character and he is in the habit of encroaching upon vacant plots which are lying unattended and also occupying houses about which there exists some dispute. thereforee, he is involved in various kinds of criminal proceedings, viz. proceedings under section 145 of the Code in the court of Sub-Divisional Magistrate, Punjabi Bagh, a case under section 448, Indian Penal Code (for short 'IPC'), Fir No. 260/83 which is still pending investigation and externment proceedings under the Delhi Police Act pending before the Deputy Commissioner of Police (West) etc As for the instant case, he admits having received applications dated 23rd November 1983, 12th December 1983, 14th December 1983, 16th December 1983, 26th December 1983 and 27th December 1983 sent by the petitioner by post but in view of the fact that the petitioner was notorious for claiming others' properties a detailed inquiry was made by Si Teja Singh and view of the result of the inquiry no case was registered on the basis of the aforesaid complaints made by the petitioner. He denied that Mam Chand-petitioner ever visited the Police Station to lodge any report personally As for the property in question he asserted that inquiries from the Delhi Development Authority revealed that Jagat Singh had been in unauthorised occupation of the same since long and since he was apprehending breach of peace on the part of the petitioner and made a report to this effect to Si Teja Singh a kalendra was submitted to the Executive Magistra

(7) Subsequent to the hearing of this case the petitioner moved a fresh application Cr. M. 84/85. inter alia, staling that the externment proceedings which were pending before the Deputy Commissioner of Police West had since been quashed by a Division Bench of this Court in Cr.W. 111/84 vide order dated 14th November 1984 However, the said application was dismissed for want of prosecution on 18th January 1985.

(8) It clearly emerges from the foregoing conspectus of circumstances that petitioner No. I is involved in several criminal proceedings and each one of them has to be decided on its own merits. So, it is not within the ambit of this petition to embark upon an inquiry for finding out whether the initiation of security proceedings against the petitioners is actuated by malice or ill- will on the part of the concerned officials. Even otherwise having regard to the complaint made by Jagat Singh to Si Teja Singh which was apparently supported by Smt. Muni Devi and Sohan Lal. respondent it cannot be ex-facie held that the concerned police officials were actuated by malice or hostility to submit a Kalendra to the Executive Magistrate, who is a statutory functionary, for initiation of security proceedings. It is well settled that proceedings under section 107 are aimed at preservation of public peace and tranquillity and as such they are preventive and not punitive in nature.

(9) As for the legality and validity of the summons in question, reference must necessarily be made to the relevant provisions contained in Chapter 8 of the Code which deals with the procedure to be adopted by an Executive Magistrate while requiring a person to furnish a bond for maintaining peace or good behavior as the case may be. Section 107 contemplate to distinct sets of circumstances in which a magistrate may take action there under, firstly when a person is likely to commit a breach of the peace or disturb the public tranquillity by a direct act and secondly, when the persons may be the indirect cause of the breach of the peace or disturbance of public tranquillity by committing a wrongful act. It is only when on receipt of any information to that effect he is satisfied that there is sufficient ground for proceeding that he may require such a person to show-cause why he should not be ordered to execute a bond for keeping peace for a period not exceeding one year. In that event he must proceed in the manner provided in Chapter 8 itself. Section I Ii lays down that when a Magistrate deems it necessary to require any person to show-cause under section 107 etc. of the Code he shall make an order in writing setting forth the substance of the information received, the amount of the bond to be executed, the term for which it is to be enforced and the number, character and class of surety, if any, required. Obviously this provision, which is mandatory in nature, has been designed not only to ensure that the Magistrate has applied his mind to the facts of the case before initiating any preventive action but also to make the person proceeded against clearly understand what the matter is upon which he has to show-cause to afford him reasonable opportunity to meet the case against him. It would appear from the record of the Executive Magistrate that he did record an order under Section 111 on 3rd January 1984 on the basis of the information contained in the kalendra and the statements of the complainant party. He even determined the amount of the bond, the number of sureties and the period for which security was to be obtained. Thus, he has duly complied with the provision of Section 111.

(10) The real grievance of the petitioner, however, is that he did not receive any copy of the order drawn up under Section 111 of the Code by the Executive Magistrate Along with the summons nor the substance of the information upon which the satisfaction of the learned Magistrate was based was incorporated in the summons served on him. Thus, he complains of non-compliance with the provisions of Section 114 of the Code which lays down that every summons or warrant issued under Section 113 shall be accompanied by a copy of the order made under Section 111 and such copy shall be delivered by the Officer serving or executing such summons or warrant to the person served with or arrested under the same. Obviously the use of the word 'shall' renders it incumbent on a Magistrate to send a copy of the order made by him under Section 111 Along with the summons or the warrant issued under Section 113 of the Code, as the case may be. It bears repetition that the object of serving copy of the preliminary order under the said Section is to acquaint the person concerned with the details of the order itself and to enable him to defend himself against the allegations upon which the preliminary order was drawn up Moreover, he must be informed about the amount of bail bond and the number of sureties etc. which he has to arrange. The Second Schedule to the Code prescribes forms of summons, warrants and bonds etc. which may be issued or executed under various provisions of the Code. Form I is of summons which may be issued to an accused person under Section 61 of the Code to answer a charge while Form 14 is with respect to summons to be issued under Section 113 of the Code. On a mere juxta-position of the two, it is clear that in the former form the substance of the accusation i.e. offence with which the accused is charged has to be stated while in the latter the substance of the information on which security proceeding is initiated has to be recorded. Moreover, in the latter form the amount of the bond and the number of sureties, if required have also to be mentioned. It is thus crystal clear that the form of summons prescribed under Section 113 specifically requires incorporation of not only the substance of the information but also the amount of the bond etc. which the person proceeded against may be called upon to furnish for keeping peace etc. The summons issued to the petitioners in this case were in Form I and not in Form 14 i.e. the one prescribed under Section 113 of the Code. Not only that, neither the substance of the information nor the amount of the bond or the number of sureties have been given therein and there is only a cryptic reference to Section 107/150 of the Code. Moreover, only the words 'with one surety' are written just below the name of the petitioners. So vague are these words that it is impossible to make out whether a surety was required in support of the bond to be executed for release of the petitioners on bail or an interim bond to keep peace. Thus, the summons neither set forth the substance of the information nor the amount of the bond nor the number of sureties and even a copy of the order made under Section 111 was not served Along with the summons. Of course, the prescribed form at does not provide for a separate copy of the order accompanying the summons or the notice. It is, thereforee, impossible to say that the petitioners against whom the proceedings were taken have not been prejudiced by non compliance with the mandatory provisions of Section 114. Indeed, it would appear that the learned Executive Magistrate was in unholy haste and did not bother even to go through the relevant provisions of Chapter V111 and the prescribed format of summons to be used under Section 113 of the Code. Certainly it is not a case of mere irregularity which may be cured by subsequent compliance with the provisions of Sections 111 to 114 at the stage of holding an inquiry as to the truth of information under Section 116. Indeed Section 116 does not contemplate reading over and explaining to the person proceeded against the substance of the information before the commencement of an inquiry there under and it pre-supposes that an order under Section 111 has been read or explained under Section 112 to a person present in Court or it has been served upon the said persons in accordance with Section 113 and 114. Hence, deviation from the procedure prescribed in Chapter Viii itself cannot be permitted except on exceptional or extra-ordinary grounds.

(11) The summons issued in the instant case which were not only in a form not warranted by law but which were also benefit of all necessary details mentioned above, in my view, amount to an abuse of process of the court and the very object of the safeguards provided in Sections 111 to 114 of the code against arbitrary action and undue harassment of a citizen is frustrated. The petitioner has approached this Court to prevent the abuse of process of the court at the threshold and there is no reason why his grievance be not redressed. Denial of appropriate relief to the petitioners, in the instant case, may tend to encourage the Executive Magistrates to persist in their wrongful acts by ignoring the specific provisions of law which are mandatory in nature. Surely, they cannot be permitted to devise their own procedure in security proceedings which undoubtedly curtail the right of liberty and freedom of movement of the subjects.

(12) As for the prayer of the petitioners that a direction be made to the Rajouri Garden police to register a case under Sections 379/380/506/34 Ipc against respondents 5 to 10, it has been noticed above that according to the Station House Officer. Police Station Rajouri Garden, the case was not registered for a variety of reasons. He denies that the petitioners ever reported at the Police Station for lodging a report to this effect. So, it cannot be taken for granted that whatever the petitioners say must be a gospel truth and secondly, the contention of the S.H.O. is that petitioner No. 1 being a notorious land grabber it was not considered advisable to register a case without first verifying the facts. I do not think there is any merit in this contention in view of the plain language of section 154 of the Code which lays down in no uncertain terms that the substance of every information, whether oral or written, relating to the commission of a cognizable offence shall be entered in a book to be kept by such police officer as may be prescribed by the Government in this behalf. So, all that the concerned police officer has to see at that stage is whether the first information imparted to him by the complainant discloses commission of a cognizable offence or not and it is not necessary that there must be complete or satisfactory proof or evidence in relation to the commission of that offence. So, the action of Rajouri Garden police in not registering a case on the information given by the petitioners, if any, was highly improper and not warranted by law. All the same, three courses were open to the complainant for seeking redress in this behalf. In the first instance, he could complain to the Superintendent of Police concerned about the refusal on the part of the police officer in charge of the Police Station to record the information, as contemplated in subsection (1) of section 154. Secondly, he could approach the concerned Metropolitan Magistrate for a direction in this behalf under section 156(3) of the Code. However, there is nothing on the record to suggest that the petitioners ever approached the Magistrate with such a request. Lastly, the petitioners could well file a complaint against the culprits before the concerned Metropolitan Magistrate as contemplated in Section 190 of the Code. They do not appear to have taken recourse to any of these alternative remedies. Hence, it will not be a sound exercise of the discretion vesting in this Court to direct the Rajouri Garden Police to register a case and investigate the matter on the basis of the complaints sent by petitioner No. 1 to them by post, more so when the S.H.O. has already indicated his mind in this behalf, viz. that according to the inquiry made by a police official there could be no theft of the belongings of the petitioners as petitioner No. 1 had left quarter No. 784, Four storeyed, Raghbir Nagar, several years ago when he eloped with petitioner No. 2 and since then only Jagat Singh and his companions have been in unauthorised occupation of the said quarter. Hence no useful purpose would be served by issuing a direction of the nature prayed for at this belated stage.

(13) The upshot of the whole discussion, thereforee, is that the impugned summons must be quashed as being illegal and invalid. Consequently, the subsequent proceedings before the Executive Magistrate must also be quashed as being without jurisdiction. This petition is accordingly allowed and the impugned summons as well as the proceedings pending before respondent No. 2 are quashed.


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