Delhi District Court
Cr No. 170/13. Hc Bhanu Pratap vs . State & Another. on 9 October, 2014
CR No. 170/13. HC Bhanu Pratap Vs. State & Another.
IN THE COURT OF SH. ASHUTOSH KUMAR :
ADDL. SESSIONS JUDGE3 : DWARKA COURTS : DELHI.
In the matter of:
CR No. 170/2013.
HC Bhanu Pratap,
S/o Sh. Jai Singh,
R/o V & PO Mandothi,
Jhajjar, Haryana
(Head Constable Bhanu Pratap
No. 912/Communication PS J.P. Kalan). ... Revisionist.
Vs.
1. The State,
(Govt. of NCT of Delhi).
2. Mange Ram,
S/o Sh. Jage Ram,
R/o V & PO Dhansa,
New Delhi110073. ... Respondents.
Date of Institution. : 8.10.2013. Date of Arguments. : 7.10.2014. Date of Order. : 9.10.2014. 9.10.2014. Page No. 1. Contd... ... ...
CR No. 170/13. HC Bhanu Pratap Vs. State & Another. Present: None for revisionist (one accused out of the three accused persons against whom notice u/s 251 CrPC for the offences u/s 448/451/34 IPC was framed by the ld. Trial Court vide impugned order).
Sh. V.K. Swami, ld. Addl. PP for State/respondent no. 1.
None for respondent no. 2complainant.
The present criminal revision petition is fixed for order for today.
Arguments on the present criminal revision petition were addressed by Sh. Ashok Ahlawat, ld. counsel for revisionist, Sh. V.K. Swami, ld. Addl. PP for State/respondent no. 1 and Sh. Mohit Ramdev, ld. counsel for respondent no. 2, on 7.10.2014.
I have perused the entire record including TCR carefully.
:: ORDER ::
1. The challenge in the present criminal revision petition u/s 397 CrPC filed by the revisionist (one out of the original three accused persons against whom notice u/s 251 CrPC for the offences u/s 448/451/34 IPC was framed by the ld. Trial Court), is to the impugned order dated 4.9.2013 of Sh. Vikram, Page No. 2. Contd... ... ...
CR No. 170/13. HC Bhanu Pratap Vs. State & Another. ld. MM, Dwarka Courts, Delhi, in complaint case titled as "Mange Ram Vs. Hari Kishan & Others", bearing CC No. 75/1, u/s 448/451/34 IPC, PS J.P. Kalan, whereby notice u/s 251 CrPC for the aforesaid offences has been framed against all the accused persons including the revisionist.
2. The case of the revisionist is that he is the first IO in case FIR No. 82/11, u/s 323/354/506/34 IPC, and FIR No. 83/11, u/s 323/354/452/34 IPC of PS J.P. Kalan and the respondent no. 2 and his wife Ved Kaur were arrayed as accused in FIR No. 83/11 of PS J.P. Kalan. It is further the case of the revisionist that there is property dispute between the respondent no. 2 and his brother Hari Kishan and 73 complaints have been made against each other by both of them including 31 complaints against police officials. It is also the case of the revisionist that the case FIR No. 83/11 of PS J.P. Kalan was registered against the respondent no. 2 and his wife Ved Kaur on 8.9.2011. On 12.9.2011, WASI Sheela Devi (IO), who is accused no. 3 in the original complaint, alongwith the revisionist visited the place of incident i.e. Village Dhansa, Delhi, in connection with the investigation of the case and no incident of breaking the lock of the respondent no. 2 took place. It is further the case of the revisionist that the inquiry Page No. 3. Contd... ... ...
CR No. 170/13. HC Bhanu Pratap Vs. State & Another. conducted by the police officials upon the complaint of the respondent no. 2 revealed that the same was false, frivolous, concocted and baseless. It is also the case of the revisionist that the complaint made by the respondent no. 2 is a counter blast to the fair and proper investigation done by the revisionist in case FIR No. 83/11 of PS J.P. Kalan alongwith other co accused WASI Sheela Devi. It is further the case of the revisionist that the respondent no. 2 had not filed any document/evidence, which can show that the house in question, where alleged offence was reportedly committed by the revisionist, was in possession of the respondent no. 2. It is further argued that offence of criminal tresspass can be committed only if a person is in actual possession of it either himself or through his tenant or agent. It is further the case of the revisionist that the site plan of FIR No. 82/11 of PS J.P. Kalan duly signed by Ved Kaur, wife of the respondent no. 2, makes it clear that there were two houses, one belonged to Hari Kishan (original coaccused) and other belonged to the respondent no. 2 and this site plan makes it clear that Hari Kishan has his house at the spot and same also falsifies the claim of the respondent no. 2 that coaccused Hari Kishan has no house in Village Dhansa. It is further the case of the revisionist that the ld. Trial Court has failed to appreciate that Page No. 4. Contd... ... ...
CR No. 170/13. HC Bhanu Pratap Vs. State & Another. the respondent no. 2 had obstructed the way of house of Hari Kishan, for which case FIR No. 83/10 of PS J.P. Kalan was lodged against the respondent no. 2 and the site plan of place of incident of that case reveals that house in question, where the alleged incident took place, belongs to Hari Kishan and the house of the respondent no. 2 is situated opposite to that of the house of Hari Kishan. It is further the case of the revisionist that the respondent no. 2 has misled the ld. Trial Court by claiming the house of Hari Kishan to be his own and by mentioning that lock of his house was broken illegally, whereas it is clear from the numbers of site plans prepared in different criminal cases that the house, whose lock was broken by Hari Kishan belonged to him and in his possession, which is evident from the photographs taken in 1999 and 2013. Ld. counsel for revisionist had further argued that the respondent no. 2 did not produce draft man as witness, who prepared site plan Ex CW1/1 in pre summoning evidence and without corroboration by him, this document cannot be relied upon. He had further argued that the ld. Trial Court had committed gross error of law and illegality in as much it wrongly appreciated the document mark 'H' produced by the respondent no. 2, which was originally written by Hari Kishan (original coaccused) to Women Commission, Delhi, and wrongly observed that on 11.9.2011, Page No. 5. Contd... ... ...
CR No. 170/13. HC Bhanu Pratap Vs. State & Another. Sheela and the revisionist called Hari Kishan to inspect the site and then broke the lock of the door of house and handed over the possession. It is further the claim of the revisionist that nowhere in the document mark 'H' the lock of the house of the respondent no. 2 was mentioned as broken and there is no mention that Hari Kishan was handed over the possession of any house. It was further submitted that the document mark 'H' clearly shows that Hari Kishan broke open lock of his own house. It was further the claim of the revisionist that since the revisionist is a government servant, therefore permission u/s 197 CrPC was required for prosecuting the revisionist for the acts done in discharge of his official duty. No other material ground was taken on behalf of the revisionist. Ld. counsel for revisionist had relied upon the following judgments in support of his arguments:
(i) Brij Mohan Sharma Vs. State & Others, SB Criminal Revision Petition No. 316/2008, decided on 4.11.2009.
(ii) State (Delhi Administration) Vs. Mahinder Singh, Criminal Appeal No. 26/1983, decided on 22.11.2006. Page No. 6. Contd... ... ...
CR No. 170/13. HC Bhanu Pratap Vs. State & Another.
(iii) Sohan Lal Gupta (Mittal) Vs. State of Rajasthan & Another, SB Criminal Miscellaneous Petition No. 3713/2013, decided on 18.11.2013.
(iv) Gulab Vs. Anand & Another, 1987 WLN UC 498.
(v) State of Uttar Pradesh Vs. Paras Nath Singh, (2009) 6 SCC 372.
(vi) Anil Kumar & Others Vs. M.K. Aiyappa & Another, Criminal Appeals No. 15901591 of 2013, decided on 1.10.2013.
(vii) Jayasingh Vs. K.K. Velayutham & Another, 2006 (3) RCR (Criminal) 267.
(viii) Mukesh Kumar Vs. State, 2012 (1) JCC 457.
(ix) Narasingh Bhoi & Another Vs. State of Orissa & Another, 2005 (1) RCR (Criminal) 664.
(x) V.V. Nagarkar Vs. M.R. Dhawan, 20 (1981) DLT
203. Page No. 7. Contd... ... ...
CR No. 170/13. HC Bhanu Pratap Vs. State & Another.
3. Per contra, ld. counsel for respondent no. 2 had refuted the arguments of ld. counsel for revisionist and had submitted that there is no illegality or infirmity in the impugned order and the same has been passed on sound principles of law and that the counter version of revisionist and documents relied upon by him, which are not part of original record of the case, can be considered at the stage of framing of notice u/s 251 CrPC against the revisionist.
4. I find force in the arguments of ld. counsel for respondent no. 2 that the counter version of respondent no. 2 regarding the incident and the allegations levelled by him and also the documents relied upon by him (but not relied upon by the revisionist), cannot be considered at the stage of framing of notice u/s 251 CrPC. The revisionist has categorically claimed that the house, where the alleged tresspass was committed belonged to him as he had received the same pursuant to family settlement of ancestral property. Court had to take the same on face value at the stage of notice u/s 251 CrPC. No ownership documents or proof of possession was required to be proved by the respondent no. 2 till that stage, in view of specific claim on oath by the revisionist. Further the revisionist would get ample Page No. 8. Contd... ... ...
CR No. 170/13. HC Bhanu Pratap Vs. State & Another. opportunities to cross examine the respondent no. 2 on all aspects during trial, including on the question of ownership and possession of the house in question. Further admittedly the said property was initially in the "lal dora" and there was no separate ownership documents with respect to the same. Further it was not necessary for the respondent no. 2 to examine the concerned person (draftsman), who had prepared site plan Ex CW1/1 in pre summoning evidence since he (CW1) has deposed about the same in his pre summoning evidence. The said draft man would be needed only during post notice evidence in case the revisionist disputes the said site plan. Also the respondent no. 2 had relied upon mark 'H', wherein the original accused no. 1 (Hari Kishan) had admitted the breaking open of lock of the said house. It is the case of the respondent no. 2 that this revisionist alongwith original accused no. 1 and 3 broke open the lock of his house illegally and handed over the possession of the same to the original accused no. 2. The said alleged acts on the part of revisionist cannot be said to be in discharge of his official duty by any stretch of imagination, as by not doing the same, the revisionist would not have been guilty for dereliction of duty. Hence there was no question of prior sanction to prosecute the revisionist for the offences u/s 448/451/34 IPC. The other site plans and documents relied Page No. 9. Contd... ... ...
CR No. 170/13. HC Bhanu Pratap Vs. State & Another. upon by the revisionist cannot be looked into at the stage of notice u/s 251 CrPC in view of the ratio in the cases titled as "State of Orissa Vs. D.N. Padhi", 2005 SCC (Cri) 415 and "Onkar Nath Mishra & Others Vs. State (NCT of Delhi) & Another", 2008 (1) JCC 65.
5. The judgments cited by the ld. counsel for revisionist do not help his case in any way as the facts are quite distinguishable.
6. In view of the aforesaid discussions, it is clear that there is no illegality, infirmity or perversity in the impugned order of the ld. Trial Court. Only notice u/s 251 CrPC for the offences u/s 448/451/34 IPC has been framed against the revisionist and the revisionist would get ample opportunity to defend himself and to cross examine the witnesses of the respondent no. 2 in post notice evidence and also to lead evidence in his defence to falsify the case of the respondent no. 2. Accordingly the revisionist petition is dismissed.
7. A copy of this order alongwith TCR be sent back to the ld. Trial Court for information and further proceedings, for 18.10.2014 at 2.00 pm. Page No. 10. Contd... ... ...
CR No. 170/13. HC Bhanu Pratap Vs. State & Another.
8. Parties are directed to appear before the ld. Trial Court at the given date and time.
Announced in the open Court on 9.10.2014.
(ASHUTOSH KUMAR) ADDITIONAL SESSIONS JUDGE3 :
DWARKA COURTS : DELHI Page No. 11. Contd... ... ...