Delhi District Court
Kirori Mal vs . State & Ors. on 29 September, 2015
IN THE COURT OF SH. DEVENDER KUMAR , LD. ASJ-03, NORTH
EAST, KARKARDOOMA COURTS, DELHI
Kirori Mal Vs. State & Ors.
CR No. 12/15
PS : Bhajan Pura
29.09.2015
Order :
Vide this order, I shall dispose off a revision petition filed by the
revisionist against the respondents.
Arguments on revision heard.
1. It is submitted by the counsel for the revisionist that the Ld. Trial Court has dismissed the application under Section 156 (3) Cr.PC of the revisionist and has taken the cognizance u/s 200 Cr.PC. It is further argued that the Ld. Trial Court has failed to appreciate that the respondents have illegally possessed the premises of the complainant after stealing the articles lying in the premises. It is further argued that the Ld. Trail has observed that there is no necessity of any investigation by the police and complainant can very well depose before the court. It is further argued that Ld. Trial court has observed that if need is arises for police investigation the same can be resorted under Section 202 Cr.PC. It is further argued that the Ld. Trial Court has failed to appreciate that the valuable articles have been stolen by the accused which could be recovered during investigation only and recoveries are to be effected under Section 27 of Indian Evidence Act after taking the custody of accused. It is further argued that the order passed by Ld. Trial Court is illegal and against the norms laid down by the Hon'ble Supreme Court of India in various judgments. In support of his argument, Ld. Counsel CR No. 12/15 Kirori Mal Vs. State & Ors. 1/4 for revisionist has relied upon the judgments i.e. Ramesh Kumari V. State & Ors., 2006 (1) JCC 468, 2001 CRL. L.J. 2587 titled Mohindro V. State of Punjab & Ors., 2002 II AD (Cr.) DHC 177 titled G.C. Nautiyal & Ors. V. State & Ors., 2002 II AD (Cr.) DHC 182 titled Shanker Sharma V. Directorate of Enforcement, 2001 CRL. L.J 954 titled Suresh Chand Jain V. State of Madhya Pradesh & Anr., 2001 CRL. L.J. 957 titled State of Jammu & Kashmir V. Vinay Nanda, 2002 CRL L.J. 2907 titled Gulab Chand Upadhyaya V. State of U.P and 2002 CRL. L. J 2911 titled Lallan Rai V. State of U.P & Ors. It is prayed that the order of Ld. Trial Court be set aside and SHO concerned be directed to lodge an FIR and to investigate the matter.
2. On the other hand, Ld. APP for State has strongly opposed this revision on the ground that the Ld. Trial Court has not ruled out the police investigation in this case, but it has been deferred till evidence of the complainant. It is further argued that Ld. Trial Court was well competent to choose one action out of two, either to direct to police to lodge an FIR or to take cognizance and second option has been resorted by the court which is not illegal. It is prayed that this revision petition is not maintainable and liable to be dismissed.
3. On the other hand, Ld. Counsel for respondents has submitted that parties have a long standing disputes with regard to possession of the property and even many tier litigations have been contested between the parties and when complainant failed to get succeed, then he has opted this option to implicate the respondents and to pressurize them to vacate the premises. It is prayed that no such incident as alleged by the complainant CR No. 12/15 Kirori Mal Vs. State & Ors. 2/4 took place and all the photographs produced by revisionist were taken from outside the premises and none of photograph has reflected the possession of revisionist in the premises. It is further argued that premises is containing two rooms and both were in possession of respondent and tenant as per the case of the revisionist and if revisionist was not in possession then how respondents had stolen the articles of the revisionist lying in the premises. It is prayed that this revision is liable to be dismissed.
4. I have heard the arguments and perused the record. It is not a disputed proposition of law that investigation is to be directed only in those cases where evidence is to be collected through investigation. If evidence is already with complainant then no investigation is to be directed. In this case, as per trial Court record, a number of litigations are pending between the parties. A suit for permanent and mandatory injunction was filed by the revisionist against the respondent Shaukat Ali. As per the plaint, two rooms were constructed in the premises as disclosed in site plan. One room stated to be in possession of respondent no. 1 and another in possession of one Suresh Kumar. That matter was settled before the court but proceedings besides one application was moved later on. As per the suit and site plan, it is not clear as to where the revisionist had put his articles when both rooms and common veranda were in possession of respondent and one Suresh Kumar.
5. The incident involved in this case was first time brought before the police when one Mamta lodged a complaint dated 30.6.2013 with concerned police in which she alleged that the articles of her sister in law had been stolen but where those were kept it is not clear. Thereafter, another CR No. 12/15 Kirori Mal Vs. State & Ors. 3/4 complaint was moved on 06.03.2014 on the basis of previous facts and with contents of complaint dated 30.06.2013 and thereafter a complaint case was filed before Ld. Trial Court.
6. By going through the applications and previous litigation between the parties, it is clear that the respondent has lodged an FIR against the revisionist in which he was arrested and confined to jail, and present relief seems counter blast to it. As such, in view of the facts, I am of the considered opinion that entire evidence is within the possession of revisionist and nothing is to be collected by investigation. As such, the judgments relied upon by the Ld. Counsel for revisionist are not helpful to him. Rather, they are on different facts.
7. Ld. Trial Court was well within its right to adopt one recourse, out of two, either to direct SHO to loge an FIR or to proceed under Section 200 Cr.PC, which has been done. Even otherwise, the Ld. Trial Court has already taken care of the grievance of revisionist and has just postponed the necessity of investigation upto the examination of revisionist and recourse under Section 202 Cr.PC is already opened. As such, I found no illegality or infirmity in the order passed by Ld. Trial Court. This revision petition is not maintainable, hence dismissed.
8. However, stated hereinabove shall not amount to the observations on the merit of the case. Trial Court record be sent back with copy of order. Revision file be consigned to record room.
(Devender Kumar)
ASJ-03/NE/KKD
29.09.2015
CR No. 12/15 Kirori Mal Vs. State & Ors. 4/4