Delhi District Court
Rahul Kaushik And Ors vs State on 13 May, 2025
IN THE COURT OF SH. PURSHOTAM PATHAK,
ADDITIONAL SESSIONS JUDGE-05,
SOUTH DISTRICT, SAKET COURTS : DELHI
DLST010065012023
Cr Rev/254/2023
RAHUL KAUSHIK AND ORS. Vs. STATE
1. Omesh Saigal,
S/o Late Sh. D. D. Saigal,
R/o N-130 B, Panchsheel Park,
New Delhi.
2. Rahul Kaushik
S/o Sh. Govind Kumar,
R/o H. No. 346, Shahpur Jat,
New Delhi-49
3. Akash Panwar
S/o Sh. Inderjeet Singh Panwar
R/o H. No. 110, Shahpur Jat,
New Delhi-49 ........ Revisionists
VERSUS
1. STATE,
Through Public Prosecutor
2. Deep Parikh
W/o Rahul Parikh
PURSHOTTAM
R/o B-3/52, Safdarjung Enclave, PATHAK
Digitally signed by
New Delhi-110029 ......... Respondents
PURSHOTTAM
PATHAK
Date: 2025.05.14
15:48:42 +0530
Cr Rev/254/2023 RAHUL KAUSHIK AND ORS. Vs. STATE Page no. 1 of 15
DATE OF INSTITUTION : 13.07.2023
ARGUMENTS HEARD ON : 02.04.2025
DATE OF JUDGMENT : 13.05.2025
JUDGMENT
1. The present criminal revision has been filed against the impugned order dated 31.03.2023, passed by Ld. MM-06, South, Saket Courts, New Delhi, in Cr. Cases No. 2033299/2016, titled as 'State vs Rahul Etc.' in case FIR bearing no. 320/2012, for the commission of offences punishable under Section 453/120B IPC and under Section 379/427/120B IPC against revisionists namely Omesh Saigal, Rahul and Akash.
2. Brief facts, as per the prosecution are that the complainant had entered into a Memorandum of understanding dated 30.07.2009, with Panchshila Cooperative House Building Society Limited and thereby, the said society has started services of complainant in gymnasium facility, in its club i.e. Panchshila Club for a period of 10 years. Thereafter, the complainant started providing gym facilities/beauty parlor/spa facility in the premises of the said society, under the name and style of R.P.M Gym. Later on, some dispute arose between the parties, which as per the MOU were to be referred to the arbitrator, but the accused persons did not refer the same for arbitration. Instead on 11.09.2012, the accused persons along with their goons namely Rahul and Akash, forcibly Cr Rev/254/2023 RAHUL KAUSHIK AND ORS. Vs. STATE Page no. 2 of 15 Digitally signed by PURSHOTTAM PURSHOTTAM PATHAK PATHAK Date:
2025.05.14 15:48:46 +0530 entered in the gym premises and started abusing the complainant and her staff. They also stated that the said place belong to them and the complainant should vacate the same. The complainant called the police on 100 number. Again on 12.09.2012 at about 6.30 PM, the accused persons along with their goons came to the gym, broke open the locks and forcibly entered in the gym. They removed the board of the gym from there and sold the same to a kabari. They also beaten the employees of the complainant and snatched the bag of one of the members of gym namely Rakesh Gupta. The incident happened in the presence of members of the club namely Brijesh Nanda, Shani Khullar and Vikrant Shibba. The complainant came to know about the incident at about 7.55 am and she immediately reached at the spot and called the police. When no action was taken on the complaint, the complainant moved an application u/s 156(3) Cr.P.C. which was allowed vide order dated 31.10.2012.
3. After investigation charge-sheet under Section 448/34 IPC was filed wherein, all the five alleged persons were kept in column no. 12. Cognizance of offence was taken on 20.04.2015 vide detailed order and accused Rahul and Akash were summoned to face trial for offences u/s 427/379/453 r/w 120 B IPC and accused Umesh Sehgal and Rohit Barman for offences u/s 453 IPC r/w 120B. During the proceedings, accused Rohit Berman expired and Digitally signed proceedings against him were abated.
by
PURSHOTTAM
PURSHOTTAM PATHAK
PATHAK Date:
2025.05.14
15:48:49
+0530
Cr Rev/254/2023 RAHUL KAUSHIK AND ORS. Vs. STATE Page no. 3 of 15
4. Ld. Trial Court vide impugned order dated 31.03.2023 found sufficient material for framing charge u/s 379/427/453 IPC r/w Section 120B of IPC against accused Rahul and Akash and u/s 453 IPC r/w Section 120B IPC against accused Omesh Saigal.
5. For the sake of convenience the relevant portion of impugned order passed by the Ld. Trial Court is reproduced as under:-
"Admittedly complainant was given licence to run gym in Panchshila Club by the accused persons on the land granted to them on lease by DDA. According to accused persons due to several mismanagement issues they had terminated the licence of complainant and on 11.09.2012 they had taken over the possession of club at 6:30 pm. Further on the same day a list of equipment taken over by the society was prepared by the society staff and a copy was pasted outside the gym premises. The allegation of complainant are that accused persons broke the locks of the gym and had forcefully trespassed into the gym which was in their possession. Further they had also removed the notice board.
Though in the present case, no exclusive possession was granted to the M/s Fucon Technologies as they were holding the possession of the premise for gym only on the basis of licence given to them vide MOU, but they were definitely in permissive possession of the premise. Though, notice was affixed by accused persons for removing the articles lying in the gym but there is nothing on record to show that the licence of complainant was terminated after giving due opportunity to the complainant to vacate the premise. Admittedly, accused persons had entered the premise and had taken over the management and operation of gym on 11.09.2012 but the fact that they had forcefully entered into the premise and had started removing the posters and notice is sufficient to show that accused persons had trespassed into the permissive possession of complainant. From the material available on record, it nowhere appears that the possession of complainant had at any point of time become that of encroacher. Rather complainant had themselves been the encroacher and had removed the gym articles from the premise. Thus, the contention of accused persons that at no point of time possession of premise was handed over the complainant is without merits. It is also worth mentioning that even the complainant were holding the said DDA premise for running Cr Rev/254/2023 RAHUL KAUSHIK AND ORS. Vs. STATE Page no. 4 of 15 Digitally signed by PURSHOTTAM PURSHOTTAM PATHAK PATHAK Date:
2025.05.14 15:48:53 +0530 Panchshila club on the basis of lease in their favor. It is relevant to mention that offence of trespass is only against possession and not ownership. The permissive possession of complainant is established in the case. Thus, prima-facie there is sufficient material available on record to show that accused persons had trespassed into the property in possession of complainant.
It is further evident from the record that the board of the club was also missing. There is a clear statement of witnesses on record who had seen accused Aakash and Rahul removing the board of the club. The fact that there is no recovery of the board from the scrap dealer is immaterial at this stage as the statement of scrap dealer himself confirms the fact that the board of the club was removed.
Thus, prima-facie there are sufficient ground for framing charge u/s 379/427/453 IPC r/w Section 120B IPC against accused Rahul and Aakash and also u/s 453 IPC r/w Section 120B IPC against accused Umesh Sehgal.
Vide separate statement of accused Rahul Kaushik and Aakash Panwar, the charge is framed against them u/s 453/120B IPC and u/s 379/427/120B IPC is explained to them in vernacular language to which they pleaded not guilty and claimed trial.
6. Being aggrieved by the order dated 31.03.2023, the revisionists have preferred this revision petition on following grounds:-
i. that the Ld. Trial court failed to appreciate the fact that in the present matter the closure report was filed against the revisionists after completion of investigation and in the final report all the revisionists were placed in column 12, which shows that the police after investigation did not find them to be accused in the case.
ii. that Ld. Trial Court not accepting the final report and closing the case against the revisionists, took cognizance of the offence under Section 190 (1)(a) on the basis of original complaint earlier filed and issued Cr Rev/254/2023 RAHUL KAUSHIK AND ORS. Vs. STATE Page no. 5 of 15 Digitally signed by PURSHOTTAM PURSHOTTAM PATHAK PATHAK Date:
2025.05.14 15:48:55 +0530 summons/framed charges against the revisionists, without following the procedure of examining the complainant u/s 200 Cr.P.C. and conducting an inquiry u/s 202 Cr.P.C. as laid down for cognizance of offence in complaint case.
iii. that the Ld. Trial Court failed to appreciate the fact that the final eviction notice dated 11.09.2012, was served upon the complainant M/s Fucon Technologies on 11.09.2012, which clearly implied the legal and exclusive possession of the Managing Committee which included the revisionists.
iv. that no charges are made out against the revisionists as they were only performing their duties being the members of the managing committee of the Panchshila Corporative House Building Society Ltd. and if at all the Ld. Trial Court wishes to proceed with the trial against the revisionists, it can only proceed and treat it as a complaint case under Section 200 of Cr.P.C. as laid down in judgment of Vasanti Dubey Vs. State of Madhya Pradesh 2012 CriLJ1309, (2012)2SCC 731.
v. that the essential ingredients of criminal trespass is not made out against the revisionists as the gym was in exclusive and rightful possession of the managing committee of Panchshila Cooperative House Building Society Ltd., which included the present revisionists.
vi. that Ld. Trial Court failed to appreciate the fact that Cr Rev/254/2023 RAHUL KAUSHIK AND ORS. Vs. STATE Page no. 6 of 15 PURSHOTTAM PATHAK Digitally signed by PURSHOTTAM PATHAK Date: 2025.05.14 15:48:59 +0530 even after filing of the closure report which was filed against the revisionists, there were several grounds which clearly depicts that the revisionists were just doing their duty being members of the managing committee of the Panchshila Society.
vii. that the MOU signed between the M/s Fucon Technologies Ltd. and Panchshila Club clearly established the fact that the society not only retained its possession over the space allowed to gym, but had overall control and lien over the belongings and properties of the company owned by the complainant.
viii. Since the society had lien on all the belongings of M/s Fucon and the properties kept/installed in the space/part of the premises, allotted for use as gym, no case of theft of board installed by the company in the premises of the society can be made out.
ix. since the space/ premises used for gym was in possession and control of the society, it had a right to lock the same and had one set of key in its possession, therefore question of breaking locks does not arise.
x. that there is no ground adduced in the final report for addition of section 120B IPC, nor it has been proposed hence, no case for criminal conspiracy could be made out against the accused persons.
7. Ld. Counsel for the revisionists in addition to above Cr Rev/254/2023 RAHUL KAUSHIK AND ORS. Vs. STATE Page no. 7 of 15 Digitally signed by PURSHOTTAM PURSHOTTAM PATHAK PATHAK Date:
2025.05.14 15:49:02 +0530 grounds has argued that no physical possession was given to M/s Fucon Technologies, whose only duty was the management of the gym and even the booking for the gym membership were made by the officers of the club. He argued that the M/s Fucon Technologies committed fundamental breaches of the MOU and the managing committee decided to cancel the contract directing it to forthwith vacate the premises of Panchshila Club, for which notices were also issued. He argued that when M/s Fucon Technologies did not remove the breaches, the management and operation of the gym was taken over by the society with effect from 6.30 PM on 11.09.2012. He submitted that the Ld. MM rejected the final report and took cognizance of the offence u/s 190(1) (a) on the basis of original complaint, but he did not followed the procedure laid down for cognizance of offence in complaint case and without examining the complainant u/s 202 Cr.P.C. issued summons. He submitted that M/s Fucon Technologies Ltd. had stopped paying the electricity and water charges which led the managing committee of society to terminate the MOU and the management of operation of the gym was taken over by the society. He argued that the M/s Fucon was never in the exclusive possession of any property or part there of belonging to the club.
8. On the strength of these arguments, revisionists pray for setting aside of the impugned order. Ld. Counsel for the revisionists has relied upon following judgments :-
Cr Rev/254/2023 RAHUL KAUSHIK AND ORS. Vs. STATE Page no. 8 of 15 Digitally signed by PURSHOTTAM PURSHOTTAM PATHAK PATHAK Date:
2025.05.14 15:49:06 +0530 i. (Bhupendra Singh Verma & Ors. Vs. The State (NCT of Delhi) & Anr. (2019) 3 JCC 2027, ii. Corporation of Calicut Vs. K. Sreenivasan (Agarwal J. ) (2002) 5 SCC 361}].
iii.Vasanti Dubey Vs. State of M.P 2012 Cri. LJ 1309,. iv. Dilbag Singh Vs. State of Punjab 2013 Online P & H 5348 v. Dilshad Sheikh Vs. Saba Sheikh MANU/JK/0288/2022, vi.Subhash Sharma Vs. Tula Ram and Ors. MANU/hp/1099/2016 vii.Dhanna Ram and Ors. Vs. State of Rajasthan MANU/RH/0378/2000;2000CriLJ204 viii.Nilesh Narayanarao Vs. Ramadas Bapurao Ghude AIR 1987 Bom 279 ix.Maya Ram Surma Vs. Nichalakatani & Ors. MANU/WB/0021/1888; (1888) ILR15Cal402 x. Jagroop Singh & Ors. Vs. State of Pubjab (2012) 11 SCC 768, xi.Parveen @ Sonu Vs. State of Haryana (Crl. Appeal No. of 2021) xii.Ram Sharan Chaturvedi Vs. State of MP 2022 SCC Online SC 1080.
9. Per contra, Ld. APP for State argued that there is no infirmity in the impugned order as the same has been passed keeping in view the facts and materials available on record and therefore, the instant revision petition is liable to be dismissed.
10. I have heard rival contentions and perused the record.
11. The law on the question of consideration of charge is well settled. If the criminal court, on consideration of the Cr Rev/254/2023 RAHUL KAUSHIK AND ORS. Vs. STATE Page no. 9 of 15 Digitally signed by PURSHOTTAM PURSHOTTAM PATHAK PATHAK Date:
2025.05.14 15:49:09 +0530 material submitted with the charge sheet finds that a grave suspicion exists about the involvement of the accused in the crime alleged, it is expected to frame the charge and put the accused on trial. At such initial stage of the trial, the truth, veracity and effect of the evidence which the prosecutor proposes to adduce are not required to be meticulously judged, nor is any weight to be attached to the probable defence of the accused.
12. In the case of State of Bihar Vs. Ramesh Singh, AIR 1977 SC 2018 Hon'ble Supreme Court observed as under :
"It is not obligatory for the judge at that stage of the trial to consider in any detail and weigh in a sensitive balance whether the facts, if proved, would be incompatible with the innocence of the accused or not. The standard of test and judgment which is to be finally applied before recording a finding regarding the guilt or otherwise of the accused is not exactly to be applied at the stage of deciding the matter under S. 227 or S. 228 of the Code. At that stage the court is not to see whether there is sufficient ground for conviction of the accused or whether the trial is sure to end in his conviction. XXXXX Strong suspicion against the accused, if the matter remains in the region of suspicion, cannot take the place of proof of his guilt at the conclusion of the trial. But at the initial stage if there is a strong suspicion which leads the Court to think that there is ground for presuming that the accused has committed an offence then it is not open to the Court to say that there is no sufficient ground for proceeding against the accused. XXXXX If the scales of pan as to the guilt or innocence of the accused are something like even at the conclusion of the trial, then, on the theory of benefit of doubt the case is to end in his acquittal. But if, on the other hand, it s so at the initial stage of making an order under S. 227 or S. 228, then in such a situation ordinarily and generally the order which will have to be made will be one under S. 228 and not under S. 227."
13. Further, in State of Delhi v. Gyan Devi & Others, [(2008) SCC 239], Hon'ble Supreme Court reiterated that at the stage of framing of charge, the Trial Court is not to examine and access in detail the materials placed on record Digitally Cr Rev/254/2023 RAHUL KAUSHIK AND ORS. Vs. STATE Page no. 10 of 15 signed by PURSHOTTAM PURSHOTTAM PATHAK PATHAK Date:
2025.05.14 15:49:13 +0530 by the prosecution nor is it for the court to consider the sufficiency of the materials to establish the offence alleged against the accused persons.
14. Similar are the observations in "State of Bihar Vs. Ramesh Singh, AIR 1977 SC 2018 Hon'ble Supreme Court"; "Union of India Vs. Prafulla Kumar Samal 1979 Crl. L.J.154, Hon'ble Supreme Court" & " State of M.P Vs. S. B Johari 2000 Crl. L. J. 944 (SC)".
15. Illumined by the case law referred to herein above, this Court has adverted to the entire record of the case.
16. Ld. Counsel for the revisionists has contended that the Gym was in possession and control of society and it had right to lock the same hence, after the breach of the MOU by the M/s Fucon Technologies, the managing committee cancelled the contract, directed it to vacate the premises and the management of Gym was taken over by society w.e.f. 6:30 pm on 11.09.2012. Whereas complainant has alleged that she was running the gym and on 12.09.2012, the accused persons broke the lock of the Gym, trespassed into it and also removed the notice board.
17. Perusal of record shows that the complainant had entered into a Memorandum of understanding with Panchshila Cooperative House Building Society Limited and thereby, the said society has started services of complainant in gymnasium facility, in its club i.e. Panchshila Club. Admittedly, the complainant was in Cr Rev/254/2023 RAHUL KAUSHIK AND ORS. Vs. STATE Page no. 11 of 15 Digitally signed by PURSHOTTAM PURSHOTTAM PATHAK PATHAK Date:
2025.05.14 15:49:16 +0530 possession of the premises in which Gym was situated. It is not disputed that the revisionists took over the possession of Gym and the management of the Gym was taken over by the society w.e.f. 6:30 pm on 11.09.2012.
18. The only dispute is in regard to the possession of the Gym premises. The Ld. Counsel for the revisionists has contended that there are no ingredients of criminal trespass against the revisionists as the Gym was in exclusive and rightful possession of managing committee of Punchshila Club Housing Building Society Ltd. I do not find any force in such contentions as the Ld. Trial Court in the impugned order has given detailed reasons to arrive at her conclusion. It has been rightly observed by the Ld. Trial court that though the M/s Fucon Technologies was holding the possession of the premises for Gym only on the basis of licence given to them vide MOU, but they were in permissive possession of the premises. Trial court has further rightly observed that the accused persons had forcefully entered into the premises and had started removing the posters is sufficient to show that accused persons had trespassed into permissive possession of complainant. Revisionists have claimed that the MOU signed between M/s Fucon Technologies Ltd. and Panchshila club, clearly establish the fact that the society not only retained the possession over the space allowed to Gym, but had also overall control and lien over properties and belongings of company owned by complainant. However, it becomes a matter of Trial and truth and Digitally Cr Rev/254/2023 RAHUL KAUSHIK AND ORS. Vs. STATE Page no. 12 of 15 signed by PURSHOTTAM PURSHOTTAM PATHAK PATHAK Date:
2025.05.14 15:49:20 +0530 veracity of their claim can not be adjudged at this stage. It is evident from record that the revisionists in furtherance of their criminal conspiracy forcefully entered into the premises and removed the posters and notices.
19. As far as offence under section 379 IPC is concerned, it has been specifically stated in the statement of witnesses that accused Rahul and Aakash removed the board of the club. Further the alleged incident is in itself a clear indication of the existence of conspiracy and the Ld. Trial court having reasonable ground to believe that the revisionists had entered into conspiracy to commit the offence was justified in directing for framing of charge u/s 120 B IPC.
20. Ld. counsel has also contended that the Ld. Trial Court instead of accepting the final report and closing the case against the revisionists, took cognizance of the offence under Section 190 (1)(a) on the basis of original complaint earlier filed, but he did not follow the procedure laid down for taking cognizance of offence in a complaint case. Ld. Trial Court has already dealt this point and vide order dated 21.11.2022 has observed that there is nothing to assume that the initial complaint filed u/s 200 Cr.P.C or application u/s 156 (3) Cr.P.C. has been treated as protest petition. It has been further observed that cognizance is taken on the basis of material already available on record as is filed in final report, thus, there is no irregularity in the procedure of the trial in this case. The revisionists have already taken Cr Rev/254/2023 RAHUL KAUSHIK AND ORS. Vs. STATE Page no. 13 of 15 Digitally signed by PURSHOTTAM PURSHOTTAM PATHAK PATHAK Date:
2025.05.14 15:49:24 +0530 this plea and once it is decided and being barred by limitation, they cannot be allowed to take the same again at this stage, in revision, which has been filed challenging the order on charge. The revisionists have also not challenged the order dated 20.04.2015 vide which cognizance was taken and they were summoned. Hence, I do not find any merit in such contention.
21. The witnesses have specifically deposed about the incident in their statements recorded under Section 161 Cr.P.C. Hence, at this stage, it is sufficient if the order shows that trial court has applied its mind to the facts of case and material on record. Neither the defence of accused nor the authenticity of claim of prosecution is required to be decided at the stage of the charge. The grounds taken by the revisionists call for adjudication on pure questions of fact which may be adequately adjudicated upon only by the trial court and while doing so, even the submissions made on points of law can also be more appropriately gone into by the trial court in this case.
22. This Court does not deem it proper, and therefore, cannot be persuaded to have a pre-trial before the actual trial begins. A threadbare discussion of various facts and circumstances, as they emerge from the allegations made against the revisionist, is being purposely avoided by the Court for the reason, lest the same might cause any prejudice to either side during trial. But it shall suffice to observe that in view of the material available on record Cr Rev/254/2023 RAHUL KAUSHIK AND ORS. Vs. STATE Page no. 14 of 15 Digitally signed by PURSHOTTAM PURSHOTTAM PATHAK PATHAK Date:
2025.05.14 15:49:28 +0530 including statement of complainant, a grave suspicion arises against revisionists for having committed offence under section 453/120B IPC and under Section 379/427/120B IPC and therefore, there is no jurisdictional error or patent illegality in the impugned order and same does not call for any interference by this Court.
23. There is no dispute with the legal proposition which the revisionists had sought out on the basis of judgment cited. However, they do not deal with the issue as raised in the present case. Therefore, they do not come to the aid of revisionists.
24. In view of above discussion, the revision petition being devoid of any merit is dismissed.
25. TCR be sent back to the Ld. Trial court along with copy of judgment.
26. Revision petition be consigned to record room after due compliance. Digitally signed by PURSHOTTAM PURSHOTTAM PATHAK PATHAK Date:
2025.05.14 15:49:32 +0530 ANNOUNCED IN THE OPEN COURT (PURSHOTAM PATHAK) TODAY ON THIS ASJ-05(SOUTH) 13th DAY OF MAY, 2025 SAKET COURTS: N.D (This judgment contains total 15 signed pages) Cr Rev/254/2023 RAHUL KAUSHIK AND ORS. Vs. STATE Page no. 15 of 15