IN THE COURT OF LD.

DISTRICT AND SESSIONS JUDGE, DELHI

REVISION PETITION NO._______OF 2005

IN THE MATTER OF

SH. VINOD RAJPAL

S/O SHRI A.P. RAJPAL.
R/O C-39, SECTOR 33,
NOIDA (UP)
AND ALSO
PT-62/12,
KALKAJEE,
NEW DELHI -110019 ….PETITIONER

VERSUS

STATE …. RESPONDENT

REVISION OF PETITION AGAINST THE ORDER DATED 12.01.08

PASSED BY THE LD. SPECIAL EXECUTIVE MAGISTRATE, SOUTH
DISTRICT, NEW DELHI IN THE FORM OF NOTICE TO THE
PETITION UNDER SECTION 107/111 CR.P.C.

MOST RESECTFULLY SHEWETH:

RED: TYPED BY BHATIA JEE

GREEN: TYPED BY NILESH

SKY BLUE: FROM GAUTAM PRASAD

YELLOW: FROM SANJAY PRAMANIK

That this Hon’ble Court has received Kalandra under Section 107 / 150

Cr. P.C. dated 10.01.2008. Along with the Kalandra, this Hon’ble Court

has also received statement of Col. P.K. Behl and S.S. Sandhu.

That on going through the contents of Kalandra and the statements of

the aforesaid two witnesses and even accepting for the sake of

argument of that stated in the said Kalandra and statement of

witnesses as gospel truth, even so, it is humbly submitted that no case

is made out against the applicant. In fact the information supplied to

this Hon’ble Court cannot by any stretch of imagination be held to be

sufficient for this Hon’ble Court to form an opinion that there is

sufficient ground for proceeding in the matter.

Because the Learned Special Executive Magistrate has not passed any

separate order contemplated by Section 111 of the Code of Criminal

Procedure.

Because passing of an Order as mentioned above is a condition

precedent in initiating proceedings under Section 107 / 150 Cr. P.C.

Because it is a case of complete non application of mind and the

procedure followed by the Learned Special Executive Magistrate is

contrary to law.

Because the Learned Special Executive Magistrate has given Notice

under Section 107 / 111 Cr. P.C. which is a cyclostyled Notice.

Because the Learned Special Executive Magistrate has passed Order

under Section 107 / 111 Cr. P.C. without recording reasons.

Because the State which is duty bound to protect the fundamental

rights of its citizens and particularly relating to their liberty.

Because even when the information given to the Learned Special

Executive Magistrate in the Kalandra and the accompanying (annexed)

statement as taken as a gospel truth, even so it does not disclose any

possibility of branch of peach and disturbance of public tranquility.

Because provisions of Section 107 to 110 Cr.P.C. cannot be exercised

for satisfying private vendetta querulous person.

Because the exercise of powers by the Learned Special Executive

Magistrate under Section 107 and 111 Cr.P.C. on the basis of the so

called incidents trivial quarrel without application.

Because before the issuance of a Notice under Section 107 / 111 Cr.

P.C., the Learned Special Executive Magistrate is required to make an

Order in writing that even prima facie the matter is worth conducting

enquiry and to the allegations against the person.

Because the dispute between the application and the said Col. Behal is

of a trivial nature and hence no case against the applicant is made out

under Section 107 /150 Cr. P.C.

Because the Learned Special Executive Magistrate has not exercised

his powers strictly in accordance with the law and the procedure laid

down under the Code of Criminal Procedure.

Because the show cause Notice dated 12.01.2008 has used both hand

written as well as cyclostyled material. The hand written portion reads

as under :-

“You Vinod Raj Pal Son of Shri A.P. Rajpal Resident of C-39,

Sector 33, NOIDA, UP and PT 62/12, Basement, Lalkaji, New Delhi

is having a dispute with Col. P.K. Behl, PT 62/12 over the pipe

and tent installing and other petty matters, you quarrelling,

abusing and threatening to him and commit breach of peace and

public tranquility by this wrongful act.”

That the aforesaid contents of the show cause Notice would

clearly go to show that a petty, trivial, insignificant dispute

between occupants of two floors, i.e. ground floor and basement

floor has been given share of a breach of peace and public

tranquility without on the fact of it the allegations do not show

apprehension of any breach of peach and public tranquility.

Because the material before the Learned Special Executive

Magistrate cannot be said to be sufficient at all for initiating

proceedings and issuing process to the applicant. The very act

of initiating proceedings and issuing process is illegal and is an

abuse of the process of Court.

Because the Learned Special Executive Magistrate can invoke

the powers under Section 107 to 110 Cr.P.C. only in cases of a

serious nature and not in cases involving trivial quarrels and

___________ not as in the present case to be used for vehicle for

private vendetta.

Because there is no Order passed by Learned Special Executive

Magistrate from which it can be inferred that the information

given as anything to do with public peach and tranquility.

 Because a Magistrate loses jurisdiction to proceed under Section

107 Cr. P.C. if he does not express in the Order that he formed

any opinion on the basis of that information that breach of peace

was likely to be committed.

1. That the Petitioner a law abiding and peace loving citizen of India

and is resident of House C-39, Sector-33, Noida- UP

2. That the petitioner is also owner of basement floor of House no.

62/12, PT Kalakaji, New Delhi. When this floor was purchased,

there were wooden bamboos installed in the front for covering it

with tirpal so as to have cover or a shade from Sun and rain. That

the petitioner replaced wooden bamboos with steel rods so that

as & when required, shade can be properly made and used. That

one Col. P.K. Behl who is occupant of first floor, sometimes in

December 2004 raised baseless objection to such steel railing for

no good or valid reason. The installation of railing is within the

four walls of the petitioner’s property, which has nothing

whatsoever to do with the portion in occupation of the said Mr.

Behl.

That the said Mr. Behl has lot of clout with the local police and

has managed to file a false Kalandra against the petitioner.

That on 10.01.08 the petitioner was summoned/called to P.S.

Kalakaji and illegally detained and harassed by Sub-Inspector

S.S. Sandhu and manhandled and criminally intimidated and

specifically warned that in case the steel railing is not removed,

the petitioner will have to face music by use of police power.

That the police and in particular Sub-Inspector S.S. Sandhu and

SHO P.S. Kalakaji have abused police powers to harass and

falsely implicated the petitioner in the present case without

 touching the said Mr. Behl who has made false and malafide

complaint. The complaint of the

16 That on 07.10.2005 at about 7.30 p.m, the Petitioner was

surprised and shocked to receive the notice under Section 111 Cr. P. C.

from the Ld. Special Executive Magistrate South West District which

reads as under:

“IN THE COURT OF MS. VEENA RANI, SPECIAL

EXECUTIVE MAGISTRATE, SOUTH-WEST DISTT.,
NEW DELHI

NOTICE U/S 111 CR. P.C.

Whereas from the report of SHO/Dwarka it appears

that you, Gautam Prashad S/o Shri Ram Kathin R/o

Flat No. 310, Pocket-II, Sector-19, Dwarka, New

Delhi have been picking up frequent quarrels with

Sh. Vinod Bharti over roof entry dispute.

You have abused and threatened them with dire

consequences. There is a constent tension in the

area because of your violent conduct and it can end

up into a major violent crime by you endangering

the public peace and tranquility in the area. That

you are likely to do a wrongful act which may result

in the breach of peace within the local limit of my

jurisdiction and since. I am satisfied from police

report that there are sufficient grounds for taking

proceedings against you. I Veena Rani/Special

Executive Magistrate/SWD, New Delhi do hereby

require you to show cause why you should not be

 ordered to execute a personal bond in the sum of

Rs.10,000/- with one surety each in the like amount

for keeping peace during the pendency of these

proceedings.

Given under my hand and seal of today 28.09.2005.

SD/-

SPECIAL EXECUTIVE MAGISTRATE,

SOUTH WEST DISTT. NEW DELHI

17 That the aforesaid notice is improper, illegal and is not in

conformity with the requirements of Section 111 Cr. P. C. and is liable

to be withdrawn/quashed/ set aside inter alia, on account of following

reasons/grounds.

GROUNDS

A That any such notice under Section 111 Cr P. C. envisages

fulfillment of following requirements:

(i) such a notice to show cause has to be by an order in writing;

(ii) such notice a notice set forth the substance of the information

received;

(iii) such notice to specify the amount of the bond to be executed,

the terms of the bond, and the period during which the bond

is to be in force, and the number, character and class of

sureties required to be executed for such bond.

B That the Show Cause Notice issued to the Petitioner is quite

vague and does not specify whether it is issued under Section

107, Section 108, Section 109 or Section 110 Cr. P. C. The

petitioner cannot be taken by surprise. The notice as such is bad

in law.
C That the Show Cause Notice is not based on any reasonable,

specific or credible information does not show application of

mind or basis of satisfaction of the issuing authority in terms of

annexures D & E

D That the said Show Cause Notice does not disclose the substance

of the information received by the Ld. Special Executive

Magistrate and as to who gave it. The notice merely avers that

there is an imminent danger and breach of peace regarding

dispute between the petitioner and the said Mr. Vinod Bharti and

that they are likely to commit breach of peace or by which act,

breach of peace will probably be occasioned. The said expression

is merely repetition of some of the provisions of Section 107 Cr.

P. C.

E That the said Show Cause Notice does not show how such an

opinion is formed by Ld. Special Executive Magistrate. No factual

information as regards the incidents/event have been specified

in the said notice on the basis of which Special Executive

Magistrate formed an opinion and arrived at conclusion that

there is likelihood of breach of peace and that is just and fair

case for issuing show cause notice. It is clear that the impugned

notice does not disclose the basis of issuing such a notice by the

Ld. Special Executive Magistrate and is thus liable to be quashed.

F That the said Show Cause Notice is not accompanied by copy of

the preliminary order, if any, passed by the Ld. Special Executive

Magistrate and this vitiates the notice.

G That the Show Cause Notice issued to the Petitioner does not

show that the Ld. Special Executive Magistrate applied his/her

mind before issuing such notice. The same seems to have been

issued in a routine and a mechanical manner.

H That from the Show Cause Notice issued to the Petitioner it is not

possible for the Petitioner to know as to what has weighed with

the Ld. Special Executive Magistrate to take the proposed action.

I That by the issuance of such a vague notice the Petitioner has

been greatly prejudiced as he does not know as to what facts the

Petitioner is supposed to defend himself in the matter/enquiry.

J That the provisions of Section 111 Cr. P. C. are mandatory and

failure to comply with the said provisions by itself will make the

said Show Cause Notice as void ab initio.

K That in any case, as already stated, substantial prejudice has

been caused to the interest of the Petitioner by such a notice as

it has hit the very right of the Petitioner to defend himself

properly before the Ld. Special Executive Magistrate.

L That the Petitioner ought to know the basis on which the Show

Cause Notice is issued. The Petitioner must be disclosed the

substance of information received so as to enable him to defend

himself properly.

M That the Show Cause Notice also does not show the period for

which the bond is sought to be required/executed from the

Petitioner. On this account also the Show Cause Notice becomes

illegal and is liable to be quashed.

N That the Show Cause Notice also does not specify the character

and class of surety who is required to execute the said bond.

O That the Show Cause Notice being vague, perverse and in

complete violation of provisions of Section 111 Cr. P. C. is liable

to be quashed/set aside.
P That there is absolutely no basis whatsoever for the Ld. Special

Executive Magistrate to form the opinion that there is violent

conduct of the Petitioner causing tension in the area and can end

up into a major violent crime endangering the public peace and

tranquility in the area. Such an opinion is based purely on

conjectures and surmises without having reasonable basis.

PRAYER

It is, therefore, most respectfully prayed that :

(i) Set aside/ quash the Show Cause Notice dated 28.09.2005

passed by the Ld. Special Executive Magistrate

(ii) Stay of the proceedings before Ld. Special Executive

Magistrate in the meanwhile.

(iii) To pass such other order/orders as this Hon'ble Court may

deem fit and proper in the interest of justice.

1. That the issuance of show cause notice under section 107/111

Cr.P.C. is per se illegal and unwarranted on the following

grounds:

(A)Because even if assuming for the sake of arguments al

facts in the complaint of First Party or even in the

Kalandara are taken as truth no case whatsoever is made

out U/S sections 107/111 Cr.P.C.

(B) Because Section 107/111 Cr.P.C. is essentially attracted

when there is breach of public tranquility.

Section 107 reads as under:

Section 107-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 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 proceedings, 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.

(2) Proceeding under this Section may be taken

before any Executive Magistrate when either the

place where the breach of the peace or disturbance

is apprehended is within his local jurisdiction or there

is within such jurisdiction a person is likely to commit

a breach of the peace or disturb the public tranquility

or to do any wrongful act as aforesaid beyond such

jurisdiction.

Section111Cr.P.C.-Order to be made- When a

Magistrate acting under Section 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

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.

( C) Because the Second Party is not likely to commit

a breach of the peace or disturb the public tranquility

.
(D) Because there is no reasonable likelihood of

breach of peace.

(E) Because before initiating the proceeding under

this section this court did not satisfied itself and

issued notice to the Second Party and not recorded

reason for its satisfaction and issued notice to the

Second Party.

(F) Because the allegations are based on vague

information.

(G) Because the police report only talks about

general statement of enmity and tension.

(H) Because present police report pertains to quarrel

between private individuals.

(I) Because there is no application of judicial mind

and the order dated 17.10.2007 is a mechanical

order and merely because receiving information from

the police a mechanical order cannot be passed.

(J) Because report of the SHO PS Mangolpuri neither

mentions the contents of the FIR nor mentions the

substance of the bail order rather mentions false and

fictitious contents of the bail order dated 10.05.07. It

all show that the SHO has submitted a false, fictitious

police report which is based on surmise and

conjecture only to save his skin and escape from the

liabilities abdicting his duties.

 (K) Because perusal of the record available and

documents submitted herewith by the Second Party

it would be crystal clear that the there is not any

likelihood of causing breach of peace by the Second

Party. The complaints brought on the record by the

SHO also nowhere show that there is any likelihood

of commission of any cognizable offence. The act or

omission if any that does not pertain to the public at

large that is within the premises of the house and

hence there is no question of disturbing tranquility

can be made out on the part of the Second Party.

Therefore the Second party cannot be made liable to

execute a personal bond in the sum of Rs.5000/- with

one surety in the like amount to keep peace for a

period of one year.

PRAYER

In view of the above it is most respectfully prayed before this

Hon'ble Court in the interest of justice kindly

(i) drop the present proceeding under section 107/111 Cr.P.C.

(ii) pass such other and further reliefs as may be appropriate

in the facts and the circumstances of the present case.

For this act of kindness, the Applicant shall ever pray.

SECOND PARTY

THROUGH

COUNSEL
PREM KUAMR & ASSOCIATES,
471, PATIALA HOUSE COURTS,
NEW DELHI-110001
MOBILE-9873176033
9873147704