* 1 * WP-2278-2011 13 Dec. 2011 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO. 2278 OF 2011 Sameer Abdul Kasim Ansari ....Petitioner : V/S. : 1. The State of Maharashtra 2. Special Executive Magistrate Assistant Commissioner of Police, Kurla Division ....Respondents * * * * Ms. Anjali Awasthi, Advocate for the petitioner. Mrs. A.A. Mane, APP for the respondent-State. * * * * CORAM :- SMT. R.P. SONDURBALDOTA, J. 13th DECEMBER, 2011. P.C. :- 1. Rule. Rule made returnable forthwith. By consent of the parties, petition taken up for hearing immediately. 2. The petitioner prefers this petition under Article 227 of the Constitution of India and under Section 482 Criminal Procedure Code for quashing of the show cause notice dated 19th July, 2011 issued by the Special Executive Magistrate, Mumbai under Section 107 Criminal Procedure Code (hereinafter * 2 * WP-2278-2011 13 Dec. 2011 referred to as Cr.P.C.’ for short) alongwith the summons under Section 113 of ‘ the Code. Respondent no.2-the Special Executive Magistrate, Kurla Division (hereinafter referred to as the S.E.M.’ for short) has filed his affidavit-in- ‘ reply to oppose the petition. The petitioner’s challenge to the impugned notice is on three grounds. The first ground is that the same is a colourable exercise of authority by respondent no.2. The second ground is that there is a procedural defect in the issuance of notice. The third ground is that the notice is based on a solitary incident of assault. Respondent no.2 opposes the petition disputing all the three grounds and contending further that the writ petition filed is premature since it challenges only the show cause notice. The petitioner has neither appeared before respondent no.2 in response to the notice nor filed his reply to the show cause notice. 3. The solitary incident referred to in the show cause notice is dated 6th March, 2011. It is alleged that on that day at about 11.00 a.m. when the complainant while walking towards his shop, reached Royal Nursing Home, the petitioner and one more person accosted him and demanded to know why he had assaulted the petitioner’s brother-in-law, Salim Faki. Then, the petitioner and the co-accused allegedly started assaulting the complainant with iron rod on his chest and back. One, Naseem Malik came there and pacified the petitioner and the complainant. Thereafter, the complainant * 3 * WP-2278-2011 13 Dec. 2011 went to Bhabha Hospital, took medical treatment and filed complaint against the petitioner vide C.R. No. 59 of 2011 at Kurla Police Station. Undisputedly, on the earlier day at the instance of the petitioner C.R. No. 58 of 2011 had been registered at the same police station against the complainant and others. The allegations in that complaint were that on 5th March, 2011 at about 22.00 hrs there was a meeting in the Society in which the complainant, and brothers-in-law of the petitioner, Shakil Jafari and Salim Faki reside. The meeting was attended by about 18 to 22 members. In the meeting, Shakil Jafari and Salim Faki had questioned erection of mobile tower of Reliance Company on the terrace of the building. There was exchange of words on the question and Shakil Jafari and Salim Faki came to be assaulted by the complainant and his brother causing serious injuries to the eyes of Salim Faki. According to the FIR filed against the petitioner, the alleged assault by the petitioner on the complainant on 6th March, 2011 was in retaliation of the assault on his brother-in-law by the complainant. 4. Ms. Awasthi, the learned counsel for the petitioner, submits that when the petitioner was at the police station to lodge FIR No. 58 of 2011, the complainant accompanied by the Chairman, Secretary of the Society and local Corporator approached him with a request for settling the dispute. During the discussion, an associate of the complainant started threatening the * 4 * WP-2278-2011 13 Dec. 2011 petitioner in the presence of the police officers that unless the complaint was withdrawn by the petitioner, he and his family members would be implicated in a false case. The brother of the petitioner had therefore immediately made a complaint to the police which was registered as N.C. Complaint No. 393 of 2011. The petitioner alleges that the police officer despite the knowledge of the FIR lodged against the complainant and the non-cognizable complaint against him failed to take any steps in that regard. According to the petitioner, this shows that the respondents are hand in gloves with the complainant. This complaint made by the petitioner has not been dealt with in the affidavit-in-reply filed by respondent no.2. There are also no submissions advanced on this contention. 5. Ms. Awasthi, submits that the impugned show cause notice cannot be sustained since the same suffers from procedural defect. She further submits that since the initiation of the proceedings itself is illegal, the petitioner was justified in approaching this Court for quashing of the proceedings at the very preliminary stage. She refers to Section 111 Cr.P.C. which casts a statutory and mandatory duty upon respondent no.2 to pass an order in writing setting forth the substance of information received that he deems it necessary to take action under Section 107 against the petitioner. Further, Section 113 Cr.P.C. requires that if a person against whom the proceedings are to be initiated is * 5 * WP-2278-2011 13 Dec. 2011 not present in Court at the time of passing order under Section 111 Cr.P.C., respondent no.2 shall issue a summons to him requiring him to appear. Section 113 of the Cr.P.C. requires that every summons issued under Section 113 is accompanied by a copy of the order made under Section 111 and such copy is delivered by the officer at the time of service of summons. Ms. Awasthi, submits that the petitioner has been served only with the show cause notice under Section 107 Cr.P.C. and the summons under Section 113. There is nothing on both these documents to indicate that respondent no.2 had complied with the statutory duty of passing an order under Section 111. In view of the contention taken, respondent no.2 was asked to produce the entire file relating to the chapter proceedings. Perusal of the file shows that respondent no.2 did pass an order under Section 111 on 19th July, 2011. However, copy of that order was not served upon the petitioner. Besides, the order indicates that respondent no.2 had recorded statement of Namdeo Nivrutti Gule, Police Sub-Inspector referring to the complaint vide C.R. No. 59 of 2011 for the offences punishable under Sections 323, 324, 506 read with 34 Indian Penal Code. The statement of P.S.I. Gule makes no reference to registration of the complaint vide C.R. No. 58 of 2011 against the complainant and to the N.C. complaint at the instance of the brother of the petitioner. The order passed by respondent no.2 under Section 111 merely refers to the report * 6 * WP-2278-2011 13 Dec. 2011 of the Senior P.I. Kurla Police Station for the need to take action under Section 107 Cr.P.C. against the petitioner and the statement of PSI, Gule recorded. It neither refers to the contents of the statement nor the material against the petitioner in the order. Therefore, the order exhibits non- application of mind by respondent no.2 to the facts of the case. These facts are sufficient to hold that respondent no.2 did not follow the procedure for the chapter proceedings laid down under the Criminal Procedure Code. 6. The third ground of the petitioner is that a solitary complaint filed against the petitioner can hardly be said to be sufficient ground for proceeding with action under Section 107 Cr.P.C. The preventive action under Section 107 Cr.P.C. is for maintenance of peace and public tranquility. Under the provision, whenever the Special Executive Magistrate receives an information that any person is likely to commit breach of the peace or disturb the public tranquility or do any wrongful act that may probably occasion breach of the peace or disturb the public tranquility and he is of the opinion that there is sufficient ground for proceeding, he may issue a notice requiring the person to show cause why he should not be ordered to execute a bond for keeping peace for the specified period. One fails to understand as to how a solitary incident of the nature alleged herein can be a sufficient ground for holding that the petitioner is likely to commit breach of peace or disturb * 7 * WP-2278-2011 13 Dec. 2011 public tranquility. There is no allegation that after the incident of 6th March, 2011 there was any further preparation made by the petitioner for causing disturbance of peace in any manner. In the circumstances, the petitioner succeeds in all the grounds. The Rule is made absolute. The petition is allowed in terms of prayer clause (a). [SMT. R.P. SONDURBALDOTA, J]