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2011 DIGILAW 1436 (BOM)

Sau. Shilpa v. State of Maharashtra

2011-11-25

A.P.BHANGALE

body2011
Judgment : 1. Rule, made returnable forthwith. Heard the matter finally by consent of the learned counsel appearing for the parties. 2. By this petition, the petitioners prayed for quashing of the Criminal proceedings vide Criminal Case No. 156/2011, initiated under Sections 107, 116(3) and 151 of the Code of Criminal Procedure. It is submitted that the valve of the water tap in the house of the petitioners is affixed near the house of the respondent No. 3 – Ms. Mina d/o Ramvilas Jogi. Mr. Pappu Jogi, the brother of the respondent no. 3 was seen playing or tampering with the valve. 3. On 12/06/2011, there was no water from the tap hence, petitioner no. 1 went to see the valve at about 12.30 p.m. She found that it was in broken condition. She then asked respondent No. 3 – Mina and her brother Pappu Jogi as also her sister Munni Jogi, as to who had broken the valve. Upon questioning them, respondent No. 3, her brother and sister quarreled over the question and abused petitioner no. 1 in a very filthy language based on her caste and, threatened to kill her. Petitioner No. 1, therefore, on 12/06/2011 approached at Police Station Wadi, Nagpur and narrated the incident to respondent no. 1 – Police Station Officer at Wadi Police Station, Nagpur, who wrote report as per her whim and opinions vide Non Cognizable Report No. 326/2011, under Sections 504 and 506 of the Indian Penal Code against respondent no. 3, her brother and sister. Being angered by this, respondent no. 3, her brother and sister chose to lodge false report at Wadi Police Station, which was noted as N.C.R. 327/2011, for offence punishable under Sections 504 and 506 of the Indian Penal Code against the petitioner no. 1, her husband and brother. 4. Thereafter on 14/06/2011, Head Constable from Wadi Police Station, served Itallanama upon petitioners giving intimation to the petitioners that proceedings under Section 107, 116(3) and 151 of the Code of Criminal Procedure informing the petitioners to remain present before Special Executive Magistrate, M.I.D.C. Division, Nagpur City, Nagpur. At about 3.00 p.m., on 15/06/2011, the respondent No. 2 – Special Executive Magistrate, in proceedings i.e. Criminal Case No. 156/2011 under Sections 106, 116(3) and 151 of the Code of Criminal Procedure, passed preliminary order under Section 111 of the Code of Criminal Procedure on 15/06/2011. At about 3.00 p.m., on 15/06/2011, the respondent No. 2 – Special Executive Magistrate, in proceedings i.e. Criminal Case No. 156/2011 under Sections 106, 116(3) and 151 of the Code of Criminal Procedure, passed preliminary order under Section 111 of the Code of Criminal Procedure on 15/06/2011. The petitioners' who made written submissions before Special Executive Magistrate requested to drop the proceedings. According to petitioners, the petitioners never intended to commit breach of peace or to disturb the public tranquility or to do any wrongful act which may occasion breach of peace or may disturb the public tranquility. Thus, according to petitioners, there was no necessity for the learned Special Executive Magistrate to pass a preliminary order under Section 111 of the Code of Criminal Procedure as there was no probability of breach of peace or disturbance of public tranquility nor there was any requirement to hold an inquiry as to truth of the information. Furthermore, there was no possibility of commission of cognizable offence at the hands of the petitioner. 5. According to learned Advocate for the petitioners, domestic or petty quarrels between neighborers cannot be the subject matter, action to be taken under Section 107 of the Code of Criminal Procedure as the quarrel between the petitioners' and the respondents' was petty quarrel which is very common in the society and not long lasting. 6. Learned APP submitted that notice dated 14/06/2011, calling upon the petitioners to attend office of the Special Executive Magistrate on 15/06/2011 at about 3.00 p.m. was pursuant to complaint against petitioners reported to Wadi Police Station as N.C.R. No. 327/11, under Section 504 and 506 of the Indian Penal Code. Thereafter, on the filing date on 15/06/2011, a preliminary order under Section 111 of the Code of Criminal Procedure was passed, requiring the petitioners to show cause under Section 107 as to why bond shall not be furnished for good behavior to maintain peace and order and peaceful conduct for a period of one year and to adduce with the surety bond of respective citizens. The petitioners who chose to file written submissions before Special Executive Magistrate on 29/07/2011, prayed for canceling and setting aside the proceedings in 2003(4) Mh.L.J. 703 ,wherein with reference to proceedings under Section 107 and 111 of the Code of Criminal Procedure, it is observed thus; “5. The petitioners who chose to file written submissions before Special Executive Magistrate on 29/07/2011, prayed for canceling and setting aside the proceedings in 2003(4) Mh.L.J. 703 ,wherein with reference to proceedings under Section 107 and 111 of the Code of Criminal Procedure, it is observed thus; “5. Section 107 if read plainly shows that its object is to protect the public tranquility and to prevent possibility of any disturbance to public peace. Therefore, there should be material before the Special Executive Magistrate to come to a conclusion that the person who is to be asked to furnish the bond is doing such activities which are reasonably dangerous to public peace and public tranquility and that too directly. The material should show that he is having the associate and doing the exercise of muscle power or giving threats or engaging himself in antisocial activities which would result in outbreaking of some incident which would disturb the public tranquility and would cause the breach of public peace. Petty quarrels between individuals are very common in society. They are not long lasting and shortly forgotten after the heat of passion subsides and anger gets cooled down. Of course, the incidents cannot be overruled in which such quarrels would be having long lasting effect and would lead to deep rooted enmity between the concerned persons. But there has to be material to that effect. The cases of show of muscle power and show of the strength cannot be excluded because in those cases also there is possibility of breach of public peace and disturbance to public tranquility. There should be material on record to show that way. 6. Domestic quarrels, petty quarrels between neighbouring persons which do not have long life are not the subject matters of the actions to be taken in view of section 107 of the Code. The energy and time of public servant concerned should not bee wasted in such trifling matters or for satisfying the personal vendetta or for the purpose of giving lessons to each other. This Court is supported by the view taken by the Single Judge Bench of this Court in two cases i.e. Smt. Christalin Costa and others vs. State of Goa and others reported in 1993(2) Mh.L.J. 1409 = 1993 (1) BLR 688 and Madhu 8. This Court is supported by the view taken by the Single Judge Bench of this Court in two cases i.e. Smt. Christalin Costa and others vs. State of Goa and others reported in 1993(2) Mh.L.J. 1409 = 1993 (1) BLR 688 and Madhu 8. Learned Advocate for the petitioners', thus, submitted that petty quarrels between neighborers are very common in nature which are of temporary nature. 9. Learned Advocate for the respondent No. 3 submitted that in the ruling cited, the facts were distinguishable as it was a case revolving around dispute between husband and wife with reference to accusation punishable under Section 498A of the Indian Penal Code and it was alleged that in the notice there was threat to the wife to take revenge. Under these circumstances and in the facts of the case, notice issued was qualified, while in the present case, the respondent no. 3 has already executed bond and also provided surety in the sum of Rs. 5,000/each to secure peace. He, therefore, submitted that the facts in the present case are distinguishable as there was complaint as well as cross complaint between the parties which made it necessary for the Police Station concerned to initiate the proceedings under Section 107 of the Code of Criminal Procedure. 10. Section 107 of the Code of Criminal Procedure, falls under Chapter VIII of Cr.P.C. as security for keeping the peace and for good behaviour. The object is to ensure that there shall be no breach of the peace as it is likely any wrongful act may probably occasion a breach of the peace or disturb the public peace and tranquility. The Executive Magistrate concerned, having local jurisdiction in the area in which breach of the peace or disturbance is apprehended. The proceedings are preventive in nature and not punitive as they are intended to secure peace and tranquility in the society but, the Magistrate concerned is under statutory obligation to hold an inquiry with a view to satisfy himself regarding existence of materials to justify the action as the Magistrate concerned cannot merely act on the basis of police report or a private complaint. The Magistrate is required to hold an inquiry and examine witnesses before any person is required to execute bond with or without sureties to ensure that there shall be no breach of peace or disturbance of public tranquility as the case may be. The Magistrate is required to hold an inquiry and examine witnesses before any person is required to execute bond with or without sureties to ensure that there shall be no breach of peace or disturbance of public tranquility as the case may be. Of course, even preliminary order under Section 111 of the Code of Criminal Procedure should be passed after application of judicial mind as making a preliminary order under Section 111 of the Code of Criminal Procedure is not an empty formality but judicial mind must be applied to the substance of information received from the police or other sources. Such order passed under Section 111 of the Code of Criminal Procedure is required to be read over and explained to the person to whom notice is issued to attend the Court and when such noticee appears or is brought by the Magistrate as the case may be, inquiry is required to be held in the same manner as may be practicable in accordance with the rules, procedure prescribed regarding evidence in summons cases. It is open for the Magistrate under Section 116(3) of the Code of Criminal Procedure, if immediate measures are necessary for the prevention of a breach of the peace or disturbance of the public tranquility or the commission of any offence to pass a reasoned order whereby the notice or person against whom a preliminary order is passed to execute bond with or without a surety to keep peace or maintain good behaviour until conclusion of the inquiry with option to detain such person in custody till bond is executed or in default of execution of the bond till inquiry is concluded. The inquiry under Section 116(3) of the Code of Criminal Procedure starts as soon as cause is shown by the noticee concerned against whom preliminary order is passed. Coming back to the facts and circumstances in the present case, it appears that Wadi Police Station initiated the action before the Special Executive Magistrate, M.I.D.C. Division, Nagpur. The notice was given to the petitioner on 14/06/2011, informing about the complaint lodged by Ms. Coming back to the facts and circumstances in the present case, it appears that Wadi Police Station initiated the action before the Special Executive Magistrate, M.I.D.C. Division, Nagpur. The notice was given to the petitioner on 14/06/2011, informing about the complaint lodged by Ms. Mina Ramvilas Jogi under Section 504 and 506 of the Indian Penal Code and it appears in the preliminary order that the Special Executive Magistrate under Section 111 of the Code of Criminal Procedure, setting forth the substance of the information on 15/06/2011 and his satisfaction to start inquiry under Section 107, 116(3) read with Section 151 of the Code of Criminal Procedure and issued a show-cause notice as to why the petitioners shall not execute bond for term of one year to maintain peace and good behaviour with two sureties. Thus, although the order is labelled as preliminary order under Section 111(6) of the Code of Criminal Procedure Code, it appears that mere show-cause notice to which reply is also filed on 29/07/2011 by the petitioners herein before the Special Executive Magistrate, M.I.D.C. Division, Nagpur. Under these circumstances, when cause is already shown it is for the leaned Special Executive Magistrate concerned to consider as to whether petitioners are required to execute bond with or without surety after the inquiry into substance of the information received by him after considering the cause shown by the petitioners. Of course, such inquiry is required to be concluded expeditiously within a period of six months from the date of its commencement as the proceedings would terminate automatically unless extended for special reasons to be recorded by the Magistrate concerned. It appears that the identical proceedings was also started against the respondent no. 3 and learned Advocate for the respondent no. 3 informed that she has already executed bond in the sum of Rs.5,000/. Be that as it may, the proceedings arose because of accusations between the petitioners and respondent no. 3 etc., which made it necessary for the police to initiate action before the learned Special Executive Magistrate. 3 and learned Advocate for the respondent no. 3 informed that she has already executed bond in the sum of Rs.5,000/. Be that as it may, the proceedings arose because of accusations between the petitioners and respondent no. 3 etc., which made it necessary for the police to initiate action before the learned Special Executive Magistrate. The facts are, therefore, prima facie distinguishable from the ruling in the case of Perswami Kandswami Devendra and another cited (supra), it appears from the observations made by this Court that if there are certain incidents in which quarrel may have long lasting effect and would lead to deep rooted enmity between the persons concerned and in the cases of show of muscle power and show of the strength, there may be possibility of breach of public peace and disturbance of public tranquility that would depend upon material on record placed before the Magistrate concerned. In the present case, where it is a simple case of domestic or petty quarrels between neighbourers or where it may have long lasting effect leading to breach of peace in the facts of the case is a question to be considered in the inquiry by the learned Execute Magistrate concerned. It would not be proper at this stage to make any observation on merits on the controversy. Suffice to say that challenge to the show-cause notice is premature at this stage, therefore, I am not inclined to entertain this petition. Petition is dismissed. Rule is discharged.