Jayant D. Shah v. State of Maharashtra — 1985 DIGILAW 155 (BOM)

JUDGMENT D.N. Mehta, J. - This Criminal Application has been filed by five petitioners impugning the issue of summons to show cause under Section 111 of the Code of Criminal Procedure, 1973 by the learned Special Executive Magistrate and Assistant Commissioner of Police, C.B. (P) C.I.D. Zone-II, Bombay. The five Petitioners pray that the Show Cause Notice dated 28th July 1983 be quashed by this Court exercising its inherent jurisdiction under Section 482 of the Code of Criminal Procedure. 2. It will be relevant at this stage to recite certain facts in order to explain the circumstances under which the learned Special Executive Magistrate issued the notice under Section 111 of the Code of Criminal Procedure. The five Petitioners are residents of building known as Mehendale Building situated at Parikh Wadi, V.P. Road, Bombay. All the five Petitioners occupy different rooms on the third floor of the said building. It appears that one Mathuradas Jadhavji Thakkar alongwith his wife Gangabai also reside on the third floor of the same building in Room No. 34. It appears that from the year 1979 the relations between Mathuradas Thakkar and his wife on the one hand and the five Petitioners on the other had become embittered and a series of quarrels had taken place between the two parties. The said Mathuradas Thakkar had lodged various N.C. complaints against the five Petitioners at the V.P. Road Police Station, alleging assault, abuse and intimidation. The N.C. complaints, to which I shall refer hereafter, date back from the year 1979. On the other band it is the allegation of the five Petitioners that the said Mathuradas Thakkar used to carryon a brothel in Room No. 34 which was occupied by him and his wife. The Petitioners state that they filed various complaints complaining against the nuisance created by the nefarious activity of Mathuradas Thakkar and his wife. The Petitioners allege that the V.P. Road Police Station took no notice of their complaints due to the influence wielded by the said Mathuradas Thakkar on the Police Officers attached to that Police Station. The Petitioners state that they filed various complaints complaining against the nuisance created by the nefarious activity of Mathuradas Thakkar and his wife. The Petitioners allege that the V.P. Road Police Station took no notice of their complaints due to the influence wielded by the said Mathuradas Thakkar on the Police Officers attached to that Police Station. Indeed at the hearing of this Petition, Shri Nadkarni, the learned Advocate appearing for the Petitioners, has produced before me an excerpt from the daily newspaper the Mumbai Samachar, dated the 5th July 1985 wherein a report appears of a raid conducted by the Vigilance Branch of the C.I.D., Bombay, on the premises of the said Mathuradas Jadhavji Thakkar. The report goes on to state that a young girl was also arrested alongwith the said Mathuradas Thakkar and were produced before the Metropolitan Magistrate who released them on bail. 3. I should like to make it clear at this stage that I do not intend to embark upon an investigation of these allegations made by the Petitioners with regard to the flesh trade carried on by the said Mathuradas Thakkar in his premises. I only intend to consider the grounds given in the notices issued against the five Petitioners by the learned Special Executive Magistrate. 4. It will be pertinent at this stage to consider the grounds mentioned by the learned Special Executive Magistrate in the five notices issued against the five Petitioners. In the notice issued against the first Petitioner the learned Special Executive Magistrate has mentioned three incidents. The first incident took place on 19.6.1982 at 19 hours which related to a quarrel which the first Petitioner had with the said Mathuradas Thakkar. In the course of the quarrel, the first Petitioner is alleged to have abused the said Mathuradas Thakkar and threatened him with dire consequences unless he withdrew the case which was filed by the said Mathuradas Thakkar against the first Petitioner. The second incident took place on 2.1.1983 at 7.30 hours, in the course of which the first Petitioner is alleged, alongwith his associates, to have picked up a quarrel with the said Mathuradas Thakkar over the use of common water tap and pushed the said Mathuradas Thakkar whereby he sustained an injury on his left hand. The said Petitioner is alleged to have used filthy language against the said Mathuradas Thakkar. The said Petitioner is alleged to have used filthy language against the said Mathuradas Thakkar. The third incident took place on 3.1.1983 at 7.30 hours, during which the first Petitioner and his associates are alleged to have picked up a quarrel with the said Matburadas Thakkar over distribution of water from the common tap, pushed the said Mathuradas Thakkar and abused him in filthy language. On the basis of these three incidents, the learned Special Executive Magistrate stated that there was a likelihood of the breach of peace which would disturb public tranquillity. 5. In the notice issued against Petitioner No.2 three incidents have been complained of. The first incident took place on 11.6.1982 at J2.20 hours wherein it is alleged that the second Petitioner picked up a quarrel with the said Mathuradas Jadhavji Thakkar. 1he second Petitioner is alleged to have abused the said Thakkar in filthy language and threatened him with dire consequences unless he withdrew the case filed by the said Thakkar. The second incident took place on 2.1.1983 at 7.30 hours, wherein tae second Petitioner is alleged to have picked up a quarrel with the said Mathuradas Thakkar over the use of common water tap and pushed him to the ground causing injury to his hand and back and abused him in filthy language. The third incident took place on 3.1.1983 at 7.30 hours wherein the second Petitioner is alleged to have picked up a quarrel with the said Mathuradas Thakkar over the distribution of water from a common water tap, pushed him and abused him in filthy language. On the basis of these three incidents the learned Special Executive Magistrate stated that he apprehended that there would be breach of peace which would disturb the public tranquility. 6. In the notice issued against Petitioner No. 3, three incidents have been complained of. It is noteworthy that all the three incidents complained of took place in the year 1979. All the three incidents relate to quarrels between Petitioner No. 3 and the said Mathuradas Thakkar. In the course of these three incidents the third Petitioner is alleged to have abused the said Mathuradas Thakkar in filthy language and threatened him with dire consequences. 7. In the notice issued against the fourth Petitioner four incidents have been set forth. All the three incidents relate to quarrels between Petitioner No. 3 and the said Mathuradas Thakkar. In the course of these three incidents the third Petitioner is alleged to have abused the said Mathuradas Thakkar in filthy language and threatened him with dire consequences. 7. In the notice issued against the fourth Petitioner four incidents have been set forth. The first incident took place on 19.3.1982 at 17.40 hours, in the course of which the fourth Petitioner, who is a teacher by profession, is alleged to have picked up a quarrel with the said Mathuradas Thakkar and abused him in filthy language. The second incident complained of took place on 8.6.1983 at 10.30 hours during which the fourth Petitioner quarreled with Gangabai, wife of Mathuradas Thakkar, over the distribution of water from a common water tap, abused her in filthy language and threatened her with dire consequences unless she withdrew the case filed by her. The third incident occurred on 11. 6.1982, at 20.00 hours in the course of which the fourth Petitioner is alleged to have picked up a quarrel with the said Mathuradas Thakkar, abused him in filthy language and threatened him with dire consequences unless he withdrew the case filed by him. The fourth incident took place on 19.6.1982 wherein the fourth Petitioner is alleged to have picked up a quarrel with the said Mathuradas Thakkar over the withdrawal of the Criminal Case filed by him and abused him in filthy language. 8. Finally, in the notice issued against Petitioner No. 5, two incidents have been set out. The first incident took place on 19.3.1982 at 17.40 hours, in the course of which the fifth Petitioner is alleged to have picked up a quarrel with the said Mathuradas Thakkar and abused the wife of the said Mathuradas Thakkar in filthy language. The second incident complained of in the said notice took place on 16.6.1983 at 06.30 a.m., in the course of which the fifth Petitioner is alleged to have picked up a quarrel with Gangabai, the wife of the said Mathuradas Thakkar, over the distribution of water from a common tap and assaulted the said Mathuradas Thakkar with her hands. 9. I have set forth the various incidents complained of against each of the five Petitioners in some detail in order to point out two important facts. 9. I have set forth the various incidents complained of against each of the five Petitioners in some detail in order to point out two important facts. Firstly that every incident complained of in the five notices relate to the quarrel with the said Mathuradas Thakkar or his wife. Secondly that the facts complained of are of a trivial nature. Indeed the trivial nature of the complaint is evidenced by the fact that in most of the incidents complained of in respect of which the said Mathuradas Thakkar lodged a complaint with the V.P. Road Police Station, the complaint was treated as a non-cognizable complaint and noted down in the N.C. Register of the V.P. Road Police Station. In each one the Complainant, the said Mathuradas Thakkar was "referred to Court", which meant that he was advised to file a private complaint. I am emphasizing the trivial nature of the various complaints against each of the five Petitioners because, as I shall point out presently, the powers under the provisions of Sections 107, 108, 109 and 110 of the Code of Criminal Procedure have to be made use of only in cases of a grave nature such as provided for in these Sections of the Code of Criminal Procedure. 10. Now Section 107 under which these notices have been issued against the five Petitioners, empowers an Executive Magistrate to require any person to show cause why he should not be ordered to execute a bond for keeping the peace for a period not exceeding one year, if the said Executive Magistrate was of the view that such a person was likely to commit a breach of the peace or disturb the public tranquility or to do any wrongful act that would probably occasion a breach of the peace or disturb the public tranquility. Section 107(1) of the Code of Criminal Procedure provides: - "When an Executive Magistrate receives information that any person is likely to commit a breach of the peace or disturb the public tranquility or to do any wrongful act that may probably occasion a breach of the peace or disturb the public tranquility 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." 11. It will be pertinent at this stage to point out also the provisions of Sections 108, 109 and 110 of the Code of Criminal Procedure. Section 108 empowers an Executive Magistrate upon receiving information either orally or in writing against a person within his local jurisdiction, who intentionally disseminates or attempts to disseminate or abets the dissemination of (a) any matter the publication of which would be punishable under Section 124A or Section 153A or Section 153B or Section 295-A of the Indian Penal Code, or (b) any matter concerning a Judge acting or purporting to act in the discharge of his official duties which amounts to criminal intimidation or defamation under the Indian Penal Code, or (c) makes, produces, publishes or keeps for sale, imports, exports, conveys, sells, lets to hire, distributes, publicly exhibits or in any other manner puts into circulation any obscene matter such as is referred to in Section 292 of the Indian Penal Code, then the learned Magistrate can require the said person to show cause why he should not be ordered to execute a bond, with or without sureties, for his good behaviour for a period not exceeding one year. 12. Section 109 empowers an Executive Magistrate to require a person to show cause why he should not be ordered to execute a bond, with or without sureties, for his good behaviour for a period not exceeding one year, if the Executive Magistrate has reason to believe that the said person was taking precautions to conceal his presence with a view to committing a cognizable offence. 13, Section 110 empowers an Executive Magistrate to require a person to show cause why he should not be ordered to execute a bond, with sureties, for his good behaviour for a period not exceeding three years, if the Executive Magistrate is of the view that such person is a habitual offender or habitually commits, or attempts to commit or abets the commission of an offence under the Drugs and Cosmetics Act, the Foreign Exchange Regulation Act, the Employees' Provident Funds and Family Pension Fund Act, the Prevention of Food Adulteration Act, the Essential Commodities Act, the Untouchability (Offences) Act and the Customs Act, or if the person is so desperate and dangerous as to render his being at large without security hazardous to the community. 14. I have briefly set forth the provisions of Section 107 to Section 110 in order to show that the powers vested in an Executive Magistrate under these Sections have to be exercised only in cases of a serious nature and not in cases involving trivial quarrels, and certainly not, as in the present case, to be used as a vehicle for private vendetta. Shri Nadkarni submitted that the said Mathuradas Jadhavji Thakkar had wielded his influence with the Police Officers attached to the V.P. Road Police Station and caused certain information or complaints to be lodged with the Executive Magistrate and the Executive Magistrate had, without applying his mind, issued notices against the five Petitioners. Shri Nadkarni is justified in the submission which he has made. As I have pointed out heretofore, every incident complained of in the five notices involves incident of quarrels with the said Mathuradas Thakkar or his wife. When the said Mathuradas Thakkar complained at the V. P. Road Police Station, the incidents were treated as non-cognizable and the said Mathuradas Thakkar was advised to file a private complaint. I do not think that trivial incidents can form the basis of proceedings for furnishing security or bond for good behaviour under Sections 107 to 110. It is only in matters likely to result in grave consequences and where there is a real threat to the breach of peace that an Executive Magistrate has to invoke his powers under Sections 107 to 110 of the Code of Criminal Procedure. It is only in matters likely to result in grave consequences and where there is a real threat to the breach of peace that an Executive Magistrate has to invoke his powers under Sections 107 to 110 of the Code of Criminal Procedure. It is apparent from the various incidents narrated in the five notices that the learned Magistrate has issued the notices without proper application of mind. I have no doubt that the exercise of the powers under Section 107 read with Section 111 of the Code of Criminal Procedure in the instant case is a gross abuse of the process of law. As I have stated earlier, the provisions of Sections 107 to 110 cannot be used or exercised for satisfying private vendetta of a querulous person. I am of the view that this is one of those cases where it becomes necessary to exercise the inherent powers of this Court with a view to quash the proceedings. 15. In the result, the Rule is made absolute. The five notices issued by the learned Special Executive Magistrate, Greater Bombay, against Petitioner Nos. 1 to 5 are quashed. Rule made absolute.