[CASE NUMBER] IN THE COURT OF SH. [ENTITY] SPECIAL JUDGE (PC ACT) CBI : EAST DISTRICT KARKARDOOMA COURTS, DELHI [CASE NUMBER] Under Section : 107/150 [ACT] Police Station : Geeta Colony Kalandara : [CASE NUMBER] dated 06.06.2014 CNR No. : DLKA01-003853-2014 In the matter of :- 1. Smt. PRAVEEN BUDHIRAJA W/o. Sh. [ENTITY], R/o. H.No.14/92, Geeta Colony, Delhi-31. 2. Sh. MOHIT BUDHIRAJA S/o. Sh. R.P. Budhiraja, R/o. H.No.14/92, Geeta Colony, Delhi-31. REVISIONISTS VERSUS STATE (GOVT. OF NCT OF DELHI) RESPONDENT Date of Institution : 27.08.2014 Date of Receiving : 28.08.2014 Date of reserving judgment : 21.02.2017 Date of pronouncement : 23.02.2017 Decision : Petition is allowed. ORDER
1. This revision petition is directed against the order dated 21.07.2014, passed by ld. SEM (East) in a kalandra titled as [ENTITY] v. [ENTITY] & Anr. bearing [CASE NUMBER] dated 06.06.2014, PS Geeta Colony, filed under [SECTION] [ACT] Vide impugned order ld. SEM (East) summoned revisionists herein and sent notice under [SECTION] [ACT]
BRIEF FACTS OF THIS CASE :-
2. Briefly stated, the relevant facts giving rise to this revision petition are Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi that SHO PS Geeta Colony forwarded two kalandras vide [CASE NUMBER] dated 06.06.2014, which were prepared by SI [ENTITY] under [SECTION] [ACT], to ld. SEM (East District) Delhi. It was alleged in the kalandras by SI [ENTITY] that he received many complaints regarding quarrel between Sh. [ENTITY] on one side and Sh. [ENTITY] and Smt. [ENTITY] on other side. After making local enquiry, IO/SI [ENTITY] came to know that both parties used to quarrel on petty issues and they were also ready to kill each other. Both parties also used to call police on many occasions, which resulted into tension between both sides.
3. On 21.07.2014, SEM (East) passed orders to summon petitioners herein along with notice under [SECTION] [ACT] thereby asking them to show cause why they should not be ordered to execute a personal bond in the sum of Rs.10,000/- with one surety in the like amount to keep peace until the completion of enquiry. GROUNDS : -
4. Being aggrieved of impugned order dated 21.07.2014, revisionists have preferred this revision petition on the following grounds :-
That ld. SEM (East) did not consider the facts and evidence available on the record and took cognizance on the complaint of SHO, which was based on false and afterthought facts only in order to counter blast the case of offences under Section [SECTION] [ACT] bearing FIR No.399/ 2013, 328/2014 and 117/2014 in which the above said [ENTITY] and his associates are accused.
That ld. SEM (East) did not consider the DD No.59-B dated 17.12.2013, wherein the SHO PS Geeta Colony, Delhi had levelled the same allegation regarding breach of peace.
That ld. SEM (East) did not consider the facts that the revisionists are educated persons and doing reputed job in Ministry of Health Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi and they are having clean antecedents in their life time and having twins children, but in collusion with the above named [ENTITY], revisionists have been falsely implicated. That ld. SEM (East) did not consider the facts that the SHO had not examined other witnesses, which was mentioned in alleged complaint and ld. SEM (East) failed to appreciate the facts available on record and without going deep into the merits of the case, passed impugned order.
That the impugned order dated 21.07.2014 was passed by ld.
SEM (East) in routine and mechanical manner.
ARGUMENTS :-
5. Ld. counsel for petitioners argued that ld. SEM (East) did not make any preliminary inquiry before issuing notice under [SECTION] [ACT] to the petitioners herein and thus, he did not follow the guidelines laid down by Delhi High Court in the case of [ENTITY] v. [ENTITY] & Ors. 2008 [2] JCC 984. He further submitted that therefore, the order dated 21.07.2014 suffers from illegality as it was passed without application of mind and without making any preliminary inquiry.
6. Per contra, ld. Addl. PP for the [ENTITY]/respondent argued that the petitioners were simply asked to show cause why they should not be asked to furnish bond to keep peace and they may explain their stand before ld. SEM (East). According to ld. Addl. PP, this revision petition is not maintainable as the order in question was merely interlocutory order.
7. Ld. counsel for petitioners relied upon certain judgments in support of his arguments, which are as follows :-
Gurcharan Singh v. The [ENTITY] of Punjab, 1978 C.L.R. (Pb. & Har.) 192.
Moid v. [ENTITY] of Kerala, 1982 CRI.L.J. 2293. [ENTITY] v. [ENTITY] & Ors. 2008 [2] JCC 984.
Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi Trijugi Narain Shukla v. [ENTITY] of U.P. & Anr. LAWS(ALL)-1975- 7-52.
8. On the other hand, ld. Addl. PP for the [ENTITY]/respondent relied upon certain judgments in support of his arguments, which are as follows :-
Bindbasni & Ors. v. [ENTITY] of U.P., 1976CriLJ1660. [PRECEDENT] APPRECIATION OF ARGUMENTS, FINDINGS & DECISION :-
9. The first question requires consideration is that whether the impugned order is to be treated as interlocutory order? The impugned order had the effect to seek appearance of the petitioners herein on the basis of certain allegations made against them and to show cause why they should not furnish bond to keep peace. The directions for any person given under [SECTION] [ACT] has to be a follow up action on the basis of some concrete information and material and right of the summoned person does come into question, so as to raise the objection against the wisdom of ld. SEM (East) to seek such explanation from them. Therefore, I do not find this impugned order to be purely interlocutory order, as it was not merely a procedural order, rather it was in a nature of substantive order purportedly based on the appreciation of materials and information and satisfaction of ld. SEM (East) to seek such explanation from the petitioners herein. Therefore, I proceed further to look into the legality of the impugned order.
10.In the case of [ENTITY] (supra) Delhi High Court made following observations :-
"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] strictly in accordance with the procedure outlined in the provisions of the [ACT] set out thereafter. Such steps should be preceded by the formation of an opinion in writing by an Magistrate which should be discernible when the decision is challenged in the Court."
Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi
11.While making aforesaid observations, Delhi High Court also referred to another judgment passed by Hon'ble Supreme Court in the case of [PRECEDENT], wherein the [ACT] Bench of the Court had made following observations:
"44. The power which is conferred under this Chapter is distinguished from the power of detention by executive action under [SECTION] of the [ACT]. 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 characterize 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 summon 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] can bear such an interpretation."
12.In the same case, Delhi High Court emphasized that "formation of opinion should normally be based on some preliminary inquiry that should be made by a SEM to justify the formation of an opinion. wherein 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] [ACT] should not be issued only upon a perusal of kalandra prepared by the police. Such a mechanical exercise without the SEM forming an independent opinion on the basis of some sort of a preliminary inquiry would rather render the exercise of the power vulnerable to being Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi invalidated."
13.Coming back to the present case, on perusal of impugned order I find that ld. SEM (East) recorded that SHO had sent up a kalandra under [SECTION] [ACT] against the petitioners. He had gone through the police report and attached documents and also recorded the statement of IO. On the basis of the same, he came to the conclusion that there were sufficient grounds to proceed against the petitioners.
14.The statement of IO, which was referred by ld. SEM (East) was nothing else but a statement given by SI [ENTITY], who was the complainant in the kalandra. His statement was nothing else, but repetition of the allegations made in the kalandra. Therefore, it cannot be said that merely by recording one extra statement of complainant i.e. SI [ENTITY], ld. SEM (East) had conducted an effective preliminary inquiry as envisaged in the guidelines issued by Delhi High Court in the aforesaid case. It was more a less an exercise of completing formality and in nut shell, grounds for satisfaction of ld. SEM (East) remained the allegations made in the kalandra, without any other inquiry being made into the facts alleged therein.
15.Ld. SEM (East) even did not call for the record of action taken on alleged complaints given by both the parties to police. If someone has some grievance against criminal activity of other party, then he is entitled to make such complaints before police. Instead of looking into allegations of those criminal incidents, it is not a good practice for the police to shrug off their duty to investigate those matters and to come up with allegations that both parties are creating a threat to the peace.
[ENTITY] had also alleged that on inquiry made from other persons, he came to know that both parties used to quarrel on petty issues.
Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi However, no such statement of any such person, if recorded by SI [ENTITY] was placed before ld. SEM (East) along with the kalandra. Therefore, I do find that the impugned order was passed by ld. SEM (East) without caring for the guidelines issued by Delhi High Court so as to make some independent preliminary inquiry before taking a decision to proceed further.
17.In these circumstances, I do find that impugned order dated 21.07.2014 suffers from illegality as it was passed in mechanical manner without application of mind to form an opinion to proceed further. Hence, revision petition is allowed and impugned order dated 21.07.2014 is hereby set aside.
18.Delhi High Court while laying down the guidelines in the case of [ENTITY] v. [ENTITY] (supra) had directed to circulate that judgment along with the judgment passed by same court in the case of Tavinder Kumar & Anr. v. [ENTITY] 40 (1990) DLT 210 to all the SEMs for their future guidance. It appears to me that either this exercise was not done by Government of NCT or no one has taken note of the guidelines issued by Delhi High Court.
19.Therefore, I deem it fit to call upon Government of NCT of Delhi through ld. Chief Secretary to look into this matter and to ensure that the guidelines issued by Delhi High Court for SEMs for the purpose of exercising power under [SECTION] [ACT] are duly circulated and complied with. A copy of this order be sent to ld. Chief Secretary, Government of NCT of Delhi.
20.TCR along with copy of order be sent back.
File be consigned to record room, as per rules.
Announced in the open court ([ENTITY]) today on 23.02.2017 Special Judge (PC Act) CBI, East (This order contains 7 pages) Karkardooma Courts, Delhi Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi