Delhi District Court
Radhey Shyam Vashisht vs State on 10 December, 2021
IN THE COURT OF MS. NEELOFER ABIDA PERVEEN:
ADDL. SESSIONS JUDGE : (CENTRAL DISTRICT):
TIS HAZARI COURT:DELHI
CNR No.DLCT01-014528-2019
Crl. Revision No. 779/2019
In the matter of :
1. Radhey Shyam Vashisht
S/o Late Laxmi Narain Vashisht,
R/o 4A/6, Raj Narain Marg,
Civil Lines, Delhi.
2. Mridula Vashisht
W/o Radhey Shaym Vashisht,
R/o 4A/6, Raj Narain Marg,
Civil Lines, Delhi.
3. Nishant Vashisht,
W/o Radhey Shaym Vashisht,
R/o 4A/6, Raj Narain Marg,
Civil Lines, Delhi. .... Petitioners
Versus
State .....Respondent
Date of Institution : 20.12.2019
Date of Judgment : 10.12.2021
C.R.No.779/2019 Radhey Shyam Vashist etc. v. State page 1
JUDGMENT
This order decides the present revision petition U/S 397 Cr.P.C. filed against the order dated 23.09.2019 passed by Ms. Shefali Barnala Tandon, Ld. MM-06 (C)/THC/Delhi in FIR No.86/2014 (Case No.287101 of
16) registered U/S 341/506(1)/34 with police station Civil Lines.
1. FIR No.86/2014 under Section 341/506/34 IPC is registered on 27.02.2014 at PS Civil Lines on the complaint dated 15.01.2014 of Dr. Manju Gupta against three accused, the three petitioners herein. Chargesheet was filed on 06.11.2015 upon which cognizance was taken on 26.11.2015. The accused appeared and filed one application under Section 258 CrPC for stopping the proceedings against the accused persons and to release them, which was disposed of vide order dated 02.11.2017 and notice of accusation were served upon the accused. Order dated 02.11.2017 came to be challenged by the accused and was set aside in Crl. Rev. No. 578/2017 vide order dated 15.01.2018 and the Ld. Trial Court was directed to pass fresh order on the application under Section 258 CrPC and on the point of notice under Section 251 CrPC with brief reasons after providing hearing to the revisionist / accused. Arguments were heard on the application in pursuance to the directions contained in order dated 15.01.2018 and the application under Section 258 CrPC of the petitioners-accused was dismissed vide order dated 23.09.2019 and notice of accusation was framed against the accused, which is assailed by the petitioners-accused by way of the present revision petition.
C.R.No.779/2019 Radhey Shyam Vashist etc. v. State page 2
2. Ld. Counsel for the petitioners contended that the complaint dated 15.01.2014 does not disclose commission of any such offence as alleged in the Final Report. That the FIR has been lodged under pressure of senior officers that too without carrying out any investigation. That fact of the matter is that the complainant commenced illegal construction on the common portion on the ground floor in or about May, 2013. Petitioner
-Radhey Shyam Vashisht objected to the said illegal construction as the common portion is meant for parking of the cars but the complainant paid no heed. Petitioner also made complaint to the MCD for stopping the illegal construction but in vain. That the complainant constructed two rooms (one on the common portion and other in the rear basement) thereby depriving the petitioners from enjoying the common portion. That the petitoner filed writ petiton (civil) No. 2093/2014 before Hon'ble the High Court of Delhi against NDMC seeking directions against NDMC to take action for stopping the on going constructions on the ground floor and basement on property no. 4A/6, Raj Narain Marg, Civil Lines, Delhi and also to direct the complainant to bring the ground floor and basement portion to original position by removing unauthorised construction. On receipt of notice in the said writ petiton, NDCM / MCD demolished the unauthroised construction so raised by the complainant and accordingly writ petition was disposed on 29.05.2014. That the present FIR has been registered only to cover up the illegal construction and in the garb of the present FIR complainant has recommenced the illegal construction at the site. That the FIR lacks the essential ingredient of Section 341 and 506 IPC. That the complainant has no right to encroach upon the common portion unauthorizedly and if the petitioners objected to the same it does C.R.No.779/2019 Radhey Shyam Vashist etc. v. State page 3 not amount to commission of offence punishable under Section 341 IPC. That it is alleged that the petitioner hurled threat to suffer dire consequences which does not constitute any offence under Section 506 IPC. That the police has not conducted any investigation and relied upon irrelevant documents. That the Seizure Memo which was executed by the complainant and her husband on 28.02.2014 shows that no investigation was carried out by the local police because as per the local police also no prima-facie case was made out against the petitioners but subsequently under pressure of the senior officers, the final report was filed and the petitioners have been put to trial. That the "photographs" filed alongwith the charge-sheet are also irrelevant and insignificant because the said photographs do not show/ establish commission of any offence by the petitioners. That the copy of 'Sale Deed" filed alongwith the final report is also irrelevant, insignificant. The said sale deed also does not show, establish commission of any offence. At the most sale deed shows that complainant was having some civil dispute with the petitioners. That the seizure memo shows seizure of one photograph by IO while alongwith the Final Report IO has attached/annexed 14 photographs. That the seizure memo also shows that the said photographs were taken into possession by the IO only on 28.02.2014. The authenticity of the photographs is doubtful because the said photographs do not pertain to the alleged incident as alleged in the complaint nor the photographs annexed with the Final Report shows any date or shows commission of any offence. That the Learned Metropolitan Magistrate could not have taken the cognizance U/S 341/506/34 IPC on the basis of the photographs. That even otherwise it is impermissible to take the cognizance on the basis of the photographs C.R.No.779/2019 Radhey Shyam Vashist etc. v. State page 4 because the photographs do not show the commission of offence, do not co-relate the petitioners with the alleged crime. Moreover, the said photographs cannot be considered as the same were not tendered during the course of investigation /statements under Section 161 Cr. P.C. That alongwith the Final Report, Investigating Officer also filed one rough site plan. The said rough unscaled site plan also is of no relevance and even otherwise also the trial court could not have taken cognizance on the basis of said rough unscaled site plan. That it is for such reason and on such grounds that the petitioners filed an application under Section 258 Cr.P.C. and prayed for stopping of the proceedings against the petitioners which has been illegally and erroneously dismissed by the Ld. Trial Court.
3. Ld. Counsel for the respondent on the other hand submitted that application U/s 258 Cr.P.C. filed by the petitioners-accused is absolutely wrong, mis-conceived and against the facts of the case. That the complainant is a respectable lady doctor and running a pediatric clinic in Kamla Nagar, Delhi-7 and her husband is an Orthopedic Surgeon and was working in Delhi Government Hospital at the relevant time and now, he is retired from the Govt. Service. That the accused persons had left no stone unturned in interfering in the working of renovation process of flat of the complainant. That initially, she tried her level best to resolve the issue but the accused persons made the things worst day by day and they all were not allowing the workers to enter in the own flat of complainant. That the complainant was compelled to call the PCR on many occasions and further by making written complaints in the concerned police station. That the complainant kept on recording those incidents in her mobile and the same C.R.No.779/2019 Radhey Shyam Vashist etc. v. State page 5 were also shown to the police at the time of registration of FIR. That the said recordings were also played before the police but the police was not ready to take the CD of those recording on record for the reason best known to them. That in fact the accused persons are very influential persons. That the accused persons were threatening the complainant for facing the dire consequences by using all contacts and political powers for the same. That although the complainant has filed number of complaints against the accused persons on different dates as and when they had restrained the workers of complainant to work in the flat and threatened them for facing dire consequence, but the police has not placed all those complaints with the charge sheet which are self-explanatory. That just like accused, Smt. Mridula Vashisth, the complainant also has equally proportionate share on the ground floor in the common passage which is 16 feet wide having area of 41.32 Sq. yards. That the said common passage is simply a common passage for the usage of all the flat owners which leads to the entrance to the ground floor duplex flat of the complainant and staircase for the duplex flat of the accused Smt. Mridula Vashisth, having no exclusive ownership right of alleged common passage. That the complainant never raised any illegal construction on the common portion of the property in question. That the said common portion is being used for common passage and for parking of cars for the occupants of ground floor as well for the occupants of duplex flat on the first floor and the said common portion is 'still intact untouched'. That as far as the construction of rear basement is concerned the real facts are contrary to the allegations of the accused persons. That initially the relations between the accused persons and complainant were normal because after the C.R.No.779/2019 Radhey Shyam Vashist etc. v. State page 6 purchase of the said duplex flat the complainant did not shifted there immediately for the reason that at that time they were residing in the government accommodation at Bunglow Road, Kamla Nagar, Delhi thus the said flat was kept under lock & key. That when the complainant started the renovation process in the said flat with the intention of shifting over there after the retirement of her husband from government job, during the renovation process, Shri Radhey Shyam Vashisth and his family members gave friendly advise that all the flat owners have extended the construction on the rear portion of the flat, thus the complainant should also do the same. That in view of their advise/suggestion and also looking into the alleged constructions in the adjoining flats, the complainant also covered some rear portion on the eastern side in order to extend the size of the kitchen. That after few days later, Radhey Shyam Vashisth and his family members started to pursue the complainant and her husband by saying that they should also built a room above the said extended portion for them. That in the reply the complainant told them that her portion is only at the ground floor, thus she will not raise any construction on the 1 st and 2nd Floor. That on this the accused persons felt offended, and they started interfering and obstructing in the renovation work of the complainant's flat. That the complainant and her workers were stopped to enter in the flat and they threatened them to face dire consequences. That if somehow the workers entered in the flat from the rear entrance, they did't allow them to come out from the flat. That thus, the complainant was compelled to call the police by dialing No.100. That the accused persons also used to threaten the complainant and labour by saying that if they try to enter in the house or try to work in the house then they will kill them. That the accused C.R.No.779/2019 Radhey Shyam Vashist etc. v. State page 7 persons by using their political connections were successful in demolishing the said rear portion structure and the complainant did not raise any objection to the said demolition because the complainant and her husband raised the said rear portion on the eastern side just only at the instance of accused Radhey Shyam Vashisth and his family members. That the said extended portion was demolished by the MCD much before the filing of said written petition (civil) bearing No. 2093/2014 before the Hon'ble High Court of Delhi. That at present there is no unauthorized construction. That vide order 29.05.2014 passed by the Hon'ble High Court the writ petition was disposed while recording the undertaking of the petitioners that the petitioners shall open the premises and hand over the key of the lock to the second respondent within one week from today and shall not impede / block the right of the second respondent to access his premises from the common entrance. That despite of giving undertaking in the Hon'ble High Court, accused persons did not comply with the said order dated 29.05.2014 passed by Mr. Justice Sudershan Kumar Mishra. That thus, the complainant moved a contempt petition CO.C. P. No. 479/2014 under Section 11 & 12 of Contempt of Courts Act 1971 on which after hearing the arguments Mr. Justice V. K. Shalli issued the show cause notice to the respondent Smt. Mridula Vashisth vide Order dated 15.07.2014. That vide order dated 30.07.2014 the said contempt petition was disposed of as satisfied on the undertaking of the Sr. Counsel of the respondent. That the door leading to the basement shall be removed within a period of one week. That the accused persons have illegally and wrongfully obstructed the complainant by using the physical force and her labourers from entering into her own flat which amounts to 'outrage of modesty of a women' and C.R.No.779/2019 Radhey Shyam Vashist etc. v. State page 8 further from doing the repair and renovation work in the flat of complainant at ground floor. That in her complaint, the complainant specifically stated that she was blocked forcibly by the accused persons from entering in to her own flat by sitting in front of entrance gate of the flat on the ground floor which is crystal clear from the photographs placed on record. That the accused persons have threatened the complainant with dire consequences to her and her husband Dr. Rama Kant Gupta and labourers by saying that if they try to enter in the house or try to work in the house then they will kill them. That the word facing of 'dire consequences' itself gives the crystal clear meaning i.e. grievous hurt. That this allegation is very clearly mentioned in the statement of the complainant Dr. Manju Gupta whereas in the statement of Dr. Rama Kant Gupta husband of complainant the allegation of 'threat to kill is also visible with naked eye'. Hence, the present complaint clearly discloses the essential ingredients of Section 341/506 IPC besides Section 354 IPC.
4. I have heard the Ld. Counsels for the parties and have perused the record.
5. FIR is registered on the complaint of Dr. Manju Gupta that on 27.02.2014 on 13.01.2014 at about 10.30 am accused R. S. Vashisht came down with his son Nishant and wife Mridula and sat in her entrance door not letting anyone to go in or out. He abused her and her workers and threatened with dire consequences upon which she had dialed 100 number helpline. Previously also she had made two complaints on 10.06.2013 and 13.01.2014 against Mr. R. S. Vashisht and family for interfering in repair and renovation work, intimidating threatening workers with dire C.R.No.779/2019 Radhey Shyam Vashist etc. v. State page 9 consequences. Statement of the complainant under Section 161 CrPC was also recorded alleging that property i.e. basement and ground floor of 4-A/6, Raj Narain Marg, Civil Lines Delhi was purchased by her on 06.02.2006 and she desired to shift therein with family in the year 2014 as her husband was due to retire in 2014 and therefore, she had started renovation work in January, 2013. The accused started obstructing the renovation work and whenever she would bring the labour for renovation and repair work, the accused would sit in front of the gate and restrain the worker/labourers from going into her portion and if they entered then they were not permitted to come out they also threatened the labourer that they will kill them if they enter the house. That the entry door to the portion is situated in front of the stair case, which is obstructed to by the accused. This portion is shown as common use portion in the sale deed. Besides the statement of the complainant, statements of Sh. Ishwar Chand Gupta and Dr. Rama Kant Gupta is also recorded.
6. The allegation is that the complainant was wrongfully restrained in as much as she was not permitted to enter her portion in the premises through the entry door in front of the stair case along the common area passage and that the accused had threatened her of dire consequences. It is contended by the petitioners that the FIR is a counterblast and that the allegations lacked bonafide, however, no fault could be found with the order dismissing the application under Section 258 CrPC and the proceedings on the basis of the material on record including the statement of the complainant and other witnesses. Section 258 CrPC is an enabling provision which empowering a Magistrate of the First Class or with the C.R.No.779/2019 Radhey Shyam Vashist etc. v. State page 10 previous sanction of the Chief Judicial Magistrate any other Judicial Magistrate, to stop the proceedings at any stage without pronouncing a judgment by recording the reasons for the same and can be applied only in unusual/extraordinary circumstances wherein, prima facie no case could be made out against the accused or for the reason that the prosecution was bound to fail due to a technical error. There is no such technical error pointed out on account of which the prosecution is bound to fail. The merit of the allegations and counter allegations can only be assessed after receiving evidence upon trial. It cannot in the facts and circumstances and the material on record including the statement of witnesses be held that there was no ground for proceeding against the accused for the offences under Section 341/506 IPC.
7. In view of above finding no irregularity or infirmity in the impugned order dated 23.09.2019, the present revision is hereby dismissed.
8. Trial Court Record be sent back with copy of judgment. Revision file be consigned to record room.
Announced in the open Court on this day 10th December, 2021.
(Neelofer Abida Perveen) Additional Sessions Judge : (Central) Tis Hazari Court:Delhi C.R.No.779/2019 Radhey Shyam Vashist etc. v. State page 11