Delhi District Court
Sant Singh Arora vs State on 15 December, 2012
IN THE COURT OF MS. SAVITA RAO, ADDITIONAL SESSIONS
JUDGE01, NORTH, DELHI
Crl. Revision No. : 43/2012
CC No. : 2612/08
P.S. : Subzi Mandi
Case ID No. : 02401R0531112010
IN THE MATTER OF :
Sant Singh Arora
S/o Late Sh. Honda Singh Arora
R/o 34/24, Old Rajinder Nagar,
New Delhi 110060
.................Petitioner
Vs.
1. State
(Through Govt. of NCT of Delhi)
2. Smt. Ved Prabha
W/o Sh. Madan Lal Tuteja
3. Sh. Rajan Kaushal
S/o Late Sh. Madan Lal Tuteja
Both R/o D15/100, sector - 7,
Rohini, Delhi 85
.............Respondents
Date of Institution : 23.11.2010
Date of Arguments : 27.4.2012, 15.5.2012, 1.6.2012, 9.10.2012,
7.11.2012, 9.11.2012, 27.11.2012, 1.12.2012 &
Crl. Rev. No.: 43/12 1/10
14.12.2012
Date of Order : 15.12.2012
ORDER
1. This is a revision petition filed on behalf of petitioner aggrieved by the order of Ld. Trial court dated 1.4.2010 whereby the petitioner was directed to be summoned in the complaint filed u/s 200 Cr.P.C.
2. Alongwith the revision petition, an application for condonation of delay has also been filed. The revision petition had been filed on 23.11.2011 against the impugned order dated 1.4.2010. However it is stated that the petitioner came to know about pendency of the criminal complaint in the month of September 2010 and put his appearance for the first time on 4.10.2010 before Ld. Trial court. But as the petitioner is an old man and was suffering from several ailments like viral fever and chicken Guniya, he could not go to the office of his counsel to sign the petition and therefore the delay occurred in filing the revision petition. However this fact was brought on record by the respondents that the petitioner herein had preferred a Criminal Mscl. (M) before Hon'ble High Court which was subsequently withdrawn, hence, it is stated that second revision petition filed before this court is not maintainable. I am unable to agree with the above contention of respondents since Criminal Mscl. (M) filed before Hon'ble High Court was not disposed off on merits but was withdrawn and therefore the instant revision petition cannot be termed as Crl. Rev. No.: 43/12 2/10 second revision petition, filing of which before this court is not barred. Of course the dates of filing of Criminal Mscl. (M) before Hon'ble High Court and the subsequent withdrawal are worth consideration to note that the petitioner was aware of the order of Ld. Trial court and had also pursued his remedy before Hon'ble High Court. It is submitted that the liberty was requested before Hon'ble High Court to prefer appropriate proceeding before the court of District & Sessions Judge but thereafter Ld. Counsel for petitioner conceded that no such liberty as given in favour of petitioner to file the revision petition is reflected in the said order whereby said Criminal Mscl. (M) was dismissed as withdrawn. As per the own submission of petitioner, he came to know about the pendency of criminal complaint in month of September 2010 and put his appearance for the first time on 4.10.2010, yet the revision petition was filed on 23.11.2011 without any justified explanation for non filing of the petition at least after September 2010 within the period of limitation when the benefit of any liberty by Hon'ble High Court is also not available with him. However, In IV (2010) SLT 797 Improvement Trust, Ludhiana Vs. Ujagar Singh & Ors., AIR 2012 Supreme Court 640 Abdul Ghafoor & Anr. Vs. State of Bihar, 167 (2010) Delhi Law Times 658 (SC) State Vs. Ahmed Jaan, AIR 1996 Supreme Court 1623 State of Haryana Vs. Chandra Mani & Ors., AIR 1987 Supreme Court 1353 Collector, Land Acquisition, Anantnag & Anr. Vs. Mst. Katiji & Ors.
and 129 (2006) Delhi Law Times 579 Kaptan & Ors. Vs. Ram Crl. Rev. No.: 43/12 3/10 Chander, interalia it was observed that " when substantial justice and technical consideration are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of non deliberate delay". Considering the abovesaid and the fact that not much prejudice would be caused to the complainants if the application seeking condonation of delay in filing the revision petition is allowed. Of course, the delay caused may be compensated in terms of money and accordingly the application is allowed with cost of Rs. 20,000/ .
3. Coming to merits of the case, the complainants who are the respondent no. 2 and 3 herein had filed a complaint against the petitioner herein alongwith one Sh. Om Prakash and Deepak Arora alleging there in that late Sh. Hotu Ram had executed a will dated 15.9.1979 bequeathing the property bearing 4A/29, Old Rajinder Nagar, in favour of Sh. Madan Lal Tuteja, husband of respondent no. 2 and father of respondent no. 3. After the death of Sh. Hotu Ram on 5.9.1981, Sh. Madan Lal Tuteja applied for mutation of property in the office on L& D.O. On 28.9.1981 on the basis of will and the daughters of Late Sh. Hotu Ram executed affidavits dated 5.10. 81 and 22.10. 81, confirming the validity and genuineness of the will besides giving their no objection to mutate the property in favour of Late Sh. Madan Lal Tuteja. However widow of Sh. Hotu Ram i.e. Smt. Govindi Bai and Om Prakash Tuteja filed a civil suit seeking declaration of the said will as null and void . Though no probate Crl. Rev. No.: 43/12 4/10 is necessary in Delhi, yet a probate petition was filed on 2.2.94 by the predecessorin interest of respondents no. 2 & 3 which was pending and the status quo order was passed by Ld. Judge in the said probate petition. The reply was filed by petitioner Sant Singh Arora in the said probate petition on 07.07.1994 stating that Smt. Govindi Bai was in possession of the said property. However late Sh. Om Prakash Tuteja who was arrayed as accused no. 1 in the complaint and Smt. Govindi Bai despite the restrain order, parted with the possession of the property in favour of petitioner herein Sh. Sant Singh Arora and Deepak Arora accordingly the application under order 39 rule 2 A of CPC for initiating contempt of court was moved before the court when the complainants came to know about the possession of petitioner Sant Singh Arora in the suit property on 15.11.96. Thereafter suit for possession was filed on 30.10.2005 wherein petitioner Sh. Sant Singh Arora moved an application under order 7 Rule 11 CPC on 6.2.2007 relying upon those forged and manipulated documents in connivance with accused no. 1 Om Prakash Tuteja. Accused no. 2/ petitioner Sant Singh Arora also moved an application seeking grant of anticipatory bail on 21.9.94 claiming himself to be the tenant in the property, though in the application under order 7 rule 11 CPC filed on 30.10. 2005 he had claimed himself to be the owner of the property based upon the documents dated 15.2.94. After the examination of complainants and their witnesses it was observed by Ld. Trial court that the status quo order had been passed by the court concerned vide order dated 21.9.94 Crl. Rev. No.: 43/12 5/10 and petitioner/accused Sant Singh Arora in his reply to the probate petition on 7.7.94 had stated that Smt. Govindi Bai was in possession of the property but in his application seeking anticipatory bail filed on 21.9.94, he claimed himself to be a tenant in the property whereas in the application under order 7 rule 11 CPC filed on 30.10.2005, he claimed himself to be owner of the property, thereby petitioner Sant Singh Arora had taken two rival contradictory stands in his reply to probate petition and in his application seeking anticipatory bail , therefore it was opined that the offences as alleged in the complaint were made out against petitioner Sant Singh Arora and accordingly summoning order was passed.
4. As per record, the complaint was filed before Ld. Trial court for trial of the petitioner u/s 177/181/182/191/192/196/199/200/ 209/423/425/463/464/468/470/471 IPC, whereas the summoning order was passed based upon the rival contradictions taken by petitioner Sant Singh Arora before the courts without observation of Ld. Trial court how the case for summoning was made out in all the sections as referred in the complaint only in view of the observations made is not clear from the order. Besides the point considered by Ld. Trial court for summoning of the accused persons, the respondents/ complainants before this court have urged and sought to draw the attention of this court to the sale documents by which petitioner Sant Singh Arora had purchased the property in question, copy of which did not contain all the particulars but the original Crl. Rev. No.: 43/12 6/10 documents which were placed on record of the court concerned were duly filled up. It was sought to be suggested that the abovesaid shows the manipulations in the documents and thereby the forgery was committed. However I agree with the submission of Ld. Counsel for petitioner that in the photocopy which was wrongly filed before the court , the particulars were not filled up since the said copy was merely a draft and the complete particulars were filled up in the original documents which were actually executed and the copy of the correct and original documents was also filed on record after realizing the said mistake. With respect to the observation that the petitioner Sant Singh Arora had taken rival pleas before the courts concerned with respect to his status in the property in question i.e. of tenant or owner, in terms of the documents placed on record by the complainants themselves, the said controversy was also subjudice before court concerned and rather in cross examination, the petitioner Sant Singh Arora sought to clarify that in the anticipatory bail application moved , his status was termed as tenant in the property which mistake was committed by his advocate and it was not his fault , since he had already purchased the property in question prior to that. The application u/s 340 Cr.P.C. , as stated, had also been moved by the respondents in that matter and therefore it was for the court concerned to decide whether explanation as submitted by petitioner Sant Singh Arora with respect to having taken the rival contention was accepted or not, failing which the court concerned could have taken action against Crl. Rev. No.: 43/12 7/10 petitioner Sant Singh Arora but the separate criminal proceedings in these circumstances are not warranted.
5. Further the respondents are claiming their rights by virtue of the will having been left in favour of their predecessorininterest by the owner of the property. Smt. Govindi Bai and Late Sh. Om Prakash as well as the other daughters of Late Sh. Hotu Ram as per record were otherwise the legal heirs of Late Sh. Hotu Ram and would be the joint owners in the property in question alongwith predecessorininterest of complainants but for the will. However, the probate petition filed by the predecessorininterest of respondents with respect to that will, as per record, has already been dismissed, thereby the genunity of the will itself was not proved. As per the claim of complainants/respondents, petitioner Sant Singh Arora and Deepak Arora never derived any right, title or interest in the property in question since the property in question had been purchased by committing forgery and manipulations. However the fact remains that the executants of those documents i.e. Smt. Govindi Bai and Sh. Om Prakash had never denied the execution of sale documents in favour of petitioner. Whether Smt. Govindi Bai or Sh. Om Prakash themselves had any right to sell their undivided share and the share of her daughters in the property in question in view of the will having been executed in favour of predecessorininterest of complainants or they continued to be coowner of the property in question was a matter of civil trial and the petitioner i.e. Sant Singh Arora as well as his son Deepak Crl. Rev. No.: 43/12 8/10 Arora definitely cannot get the better title or interest in that property than that of their predecessorininterest. In these circumstances by no stretch of imagination the said act of purchase on part of petitioner can be termed as forgery. The factum that the Petitioner had purchased the property in question from Smt. Govindi Bai and Sh. Om Prakash during the pendency of the status quo order by the court concerned is also a matter to be considered and decided by the same court if the violation of the status quo order had been done. As informed on record, the application under order 39 rule 2A CPC had also been filed with respect to the same. With the dismissal of the probate petition filed by the complainants/respondents (though appeal against said dismissal, as stated, is pending) and in view of the non denial of the executants of the documents in favour of the petitioner with respect to the property in question, but considering that undivided share of the LRs of Late Sh. Hotu Ram except for complainants was purchased by petitioner during the pendency of the status quo order, whether they derived any legal title or interest in the property in question continues to be a matter of civil trial and in these circumstances, continuation of the criminal proceedings against the accused persons Sant Singh Arora and Deepak Arora when the rights of even the predecessor ininterest of the complainants/respondents are yet to be crystalized, is not only a futile exercise but in view of the above, criminal trial is not at all warranted against the accused persons/petitioner. The respondent no. 2. & 3/complainants are at liberty to pursue the remedies available to them Crl. Rev. No.: 43/12 9/10 before appropriate court to get the respective rights of the parties decided by competent civil court as well as to seek action against the accused persons with respect to their plea of having purchased the property during the existence of status quo order but as already observed, no ground is made out for summoning of the accused persons/petitioner for the offence as alleged against them. In these circumstances, the order dated 1.4.2010 of summoning passed by Ld. Trial court is not sustainable and is accordingly set aside.
6. Revision petition is disposed off in above terms. However cost of Rs. 20,000/ as imposed upon the petitioner while allowing the application u/s 5 of Limitation Act shall be deposited/paid before Ld. Trial court in favour of opposite party. In case of failure to deposit the cost/payment to the opposite party within one week, the order passed by Ld. Trial court shall hold good . TCR alongwith copy of order be sent back to the trial court. Revision file be consigned to Record Room.
(SAVITA RAO) Additional Sessions Judge01 (North) Tis Hazari Courts, Delhi Announced in the open court today i.e. on 15.12.2012 Crl. Rev. No.: 43/12 10/10