Satya Devi and Another vs State and Others

Aruna Suresh, J.—Petitioner No. 1 along with her husband Sh. Prem Lal (since deceased) was inducted as a tenant on the first floor in the premises bearing No. WZ-207, Nangal Raya, New Delhi along with occupation and possession of the terrace from Sh. Ram Saran Dass, landlord at a monthly rent of Rs. 250/-. Petitioner No. 1 along with her other family members is residing in the said house as a tenant, due to lineage. In the year 1995 the rent of the premises was increased to Rs. 350/- per month. In May 2007, respondent No. 2 Kartar Singh made a complaint at Police Station Maya Puri which was recorded as DD-26A and DD-29A dated 4.8.2007. On the basis of these complaints, Kalandra u/s 107/150 of the Criminal Procedure Code (hereinafter referred to as Cr.P.C.) Code was filed by the police before the Special Executive Magistrate on 4.8.2007 and a notice u/s 111 Cr.P.C was issued against the petitioners. The petitioners have challenged the legality and validity of the said notice issued on 31.9.2007 by the SEM, District South West, Delhi.

On the basis of the said DDs, Kalandra was filed against both the parties i.e petitioners as well as respondent No. 2 and his associates.

On receipt of DD-26A in respect of a quarrel, SI Shiv Shanker, Police Station Maya Puri along with constable Ashok visited house No. WZ-207, Nangal Raya, where they recorded the statement of Robin Singh, Nitin Tanwar and Manish Kumar to the effect that their tenants, the present petitioners, were not paying the rent for a number of days and when they went to collect the rent, tenant Bhawani Shanker asked them to get out or he would throw them out and that they should not come back to demand rent. The tension was due to the reason that the landlord demanded rent and the tenant refused to pay the same. He apprehended breach of peace and therefore, recorded DD No. 29-A dated 4.8.2007. On the basis of these DDs, he filed a Kalandra before SEM, South West District, u/s 107/150 IPC.

Learned Counsel for the petitioners have urged that the SEM has not followed the procedure and without satisfying himself upon holding a preliminary enquiry; he in a mechanical manner issued notice u/s 111 of the Code upon the present petitioners which is against the norms of law and the notice being issued without application of mind hence, needs to be quashed. This petition has been contested by Shri O.P. Saxena, learned Counsel for the State.

Relevant portion of Section 107 and Section 111 of the Code read as follows:

Security for keeping the peace in other cases.-(1) When an Executive Magistrate receives information that any person is likely to commit a breach of the peace or disturb the public tranquillity or to do any wrongful act that may probably occasion a breach of the peace or disturb the public tranquillity and is of opinion that there is sufficient ground for proceeding, he may in the manner hereinafter provided, require such person to show cause why he should not be ordered to execute a bond [with or without sureties] for keeping the peace for such period, not exceeding one year, as the Magistrate thinks fit. 111. Order to be made.-When a Magistrate acting u/s 107, Section 108, Section 109 or Section 110, deems it necessary to require any person to show cause under such section he shall made 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 in force, and the number, character and class of sureties (if any) required.

Thus, it is clear that when an Executive Magistrate receives information that any person is likely to commit a breach of the peace or disturb the public tranquillity or to do any wrongful act which might occasion breach of peace or disturb the public tranquillity and he is of the opinion that there is sufficient ground for proceeding against that person has the power to direct such person to show cause why he should not be ordered to execute a bond with or without sureties for keeping the peace for such period he thinks is proper not exceeding one year.

Section 107 of the Code envisages that SEM should base his action of issuing a show cause notice to a person to show as to why he/she should not be ordered to execute a bond with or without a surety based on the information which he had received that such person is likely to commit breach of peace, disturb public tranquillity. On receipt of such information he has to form an opinion that there is sufficient ground for proceeding.

Therefore, this section needs two steps to be followed; firstly the Magistrate must receive an information on which he forms an opinion and secondly on the basis of which opinion he is required to issue a notice.

Section 111 of the Code comes into play or can be invoked only if after receipt of the notice issued u/s 107 of Code, the person concerned responds or fails to respond. An order can be made by the Magistrate asking such person to furnish a bond. An order u/s 111 of the Code can be issued by a Magistrate only if after acting u/s 107, 108, 109 or Section 110 he feels it necessary to require any person to show cause under such section. Magistrate is required to 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 in force and the number of class of sureties if any required.

The precautions to be observed by the SEM while exercising powers u/s 107 of the Code are mandatory in nature. In Madhu Limaye v. Ved Murti AIR 1971 SC 2481, the Constitutional Bench of the Supreme Court explained that Section 107 is in aid of an orderly society and seeks to nip in the bud the conduct subversive of peace and public tranquillity and for this purpose the Magistrates are invested with large judicial discretionary powers for the preservation of public peace and order. The court further explained importance of the procedural safeguards and their significance as follows:

We have seen the provisions of Section 107. That section says that action is to be taken ''in the manner hereinafter provided'' and this clearly indicates that it is not open to a Magistrate in such a case to depart from the procedure to any substantial extent. This is very salutary because the liberty of the person is involved and the law is rightly solicitous, that this liberty should only be curtailed according to the whim of the Magistrate concerned. It behaves us, therefore, to emphasise the safeguards built into the procedure because from there will arise the consideration of the reasonableness of the restrictions in the interest of public order or in the interest of the general public.

It was also emphasised in the said judgment that the Magistrates should state the reasons in writing at every step of the proceedings. The relevant paragraph 44 reads as below:

The power which is conferred under this Chapter is distinguished from the power of detention by executive action under Article 22 of the Constitution. Although the order to execute a bond, issued before an offence is committed, has the appearance of an administrative order, in reality it is judicial in character, primarily the provision enables the Magistrate to require the execution of a bond and not to detain the person. Detention results only on default of execution of such bond. It is, therefore, not apposite to characterise the provision as a law for detention contemplated by Article 22. The safeguards are therefore different. The person sought to be bound over has rights which the trial of summons case confers on an accused. The order is also capable of being questioned in superior courts. For this reason, at every step the law requires the Magistrate to state his reasons in writing, it would make his action purely administrative if he were to pass the order for an interim bond without entering upon the inquiry and at least prima facie inquiring into the truth of the information on which the order calling upon the person to show cause is based. Neither the scheme of the chapter nor the scheme of Section 117 can bear such an interpretation.

These observations of the Supreme Court make it clear that the power u/s 107 read with Section 111 of the Code are to be exercised by the Executive Magistrate with great care and caution as at every stage SEM would be required to give the reasons for taking such action.

In Asha Pant v. State and Ors. 2008 (2) JCC 984, this Court summed up the procedure to be followed by the Magistrate while proceeding u/s 107 and 111 of the Code in the following manner:

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 u/s 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.

In the present case, dispute inter se the parties is of landlord and tenant. In such like matters, the SEM should have exercised his power u/s 107 of the Code in a guarded manner. Notice issued u/s 111 of the Code is on a cyclostyled proforma and only the relevant information like name of the person to whom the notice has been issued, with his address and the name of the complainant has been filled in hand in the blanks left in the proforma notice. There is nothing in the impugned notice issued by the SEM to indicate that he had formed an opinion as required u/s 107 of the Code that there was apprehension of breach of peace. He did not hold even the minimal enquiry that was required on the facts and circumstances of the case. Also, the SEM did not issue any notice upon the petitioners as required under this section. Instead he proceeded by giving a notice u/s 111 of the Code without making an order in writing setting forth substance of the information received and the amount of bond to be executed in terms of which it is to be in force and the number of class of sureties if any required. Notice has been issued in a mechanical manner in utter disregard to the provisions of law. The notice issued u/s 111 of the Code lacks all material particulars.

In similar circumstances in Jagdip and Another Vs. State, , it was observed:

In the face of this indifference on the part of the respondents, this Court is left with no other option but to presume the correctness of the facts and the allegations made in these petitions. I have carefully perused the notices under Sections 107/151 Cr.P.C. subject matter of both the petitions. Admittedly, the are on they cyclostyled form in which even the number of sureties which the accused is required to furnish have not been specified. The substance of the information received from the Police report have not been incorporated. Section 111 of the Cr.P.C. requires that when a Magistrate acting u/s 107, Section 108, Section 109 or Section 110 deems it necessary to require any person to show cause under such Section, he shall make an order in writing, setting forth the substance of the information received. The amount of bond to be executed, the term for which it is to be in force and the number, character and class of sureties (if any) required. This mandatory provision has not been complied with by the Special Executive Magistrate. The notices lack in all material particulars. This practice has been deprecated time over again.

Time and again, the SEMs have been cautioned against using their powers u/s 107 of the Code and in the manner in which it should be exercised but the SEMs have not cared to follow the guidelines and the cautions issued to them from time to time in various judgments of this Court as well as of the Apex Court. In Asha Pant v. State and Ors. (supra), this Court sent a copy of the judgment to the Government of National Capital Territory for issuing appropriate instructions to the SEMs exercising their powers u/s 107 of the Code along with judgment of this Court in Tavinder Kumar and Another Vs. State, to be circulated by Govt. of National Capital Territory to the SEMs for the future guidance.

Hence the petition is allowed. Kalandara No. KL-15/ACP/NR dated 10.8.2007 (5PP arising out of DD No. 29A dated 4.8.2007, Police Station Mayapuri u/s 107/150 of the Code and notice issued for 31.9.2007 being illegal having been issued by the SEM without application of mind cannot be sustained and is hereby quashed.