Delhi District Court
Ms. Harbeen Arora vs Smt. Jatinder Kaur on 22 January, 2015
IN THE COURT OF SH. RAJ KAPOOR, ADDITIONAL SESSIONS
JUDGE (03) , PATIALA HOUSE COURT, NEW DELHI
Criminal Rev. No.35/14
IN THE MATTER OF :
Ms. Harbeen Arora
d/o Anand Singh
r/o A-16/10, Vasant Vihar,
New Delhi.
..............Revisionist
Versus
1. Smt. Jatinder Kaur
d/o Lt. Giani Partap Singh
2. Smt. Satinder Kaur
w/o Paramjeet S. Kochar
3. Smt. Harleen Kochar Clair,
d/o Smt. Satinder Kaur
All are r/o A-16/10, Vasant Vihar,
New Delhi.
4. State
Complaint case no.39/02,
u/s 352/ 452/ 506(2) IPC.
................Respondents
22.01.2015
ORDER
1. This revision petition filed u/s 397 and 399 Cr. PC is directed against the order dated 14.01.2013 passed by ld. MM, (hereafter referred as impugned order) whereby ld. trial court ordered to discharge the respondents for the offences u/s 352/ 452/ 506(2) IPC.
2. Briefly the factual matrix of the case is that the Revisionist and the alleged respondent no.1 to 3 are relatives. Residential plot A-16/10, Cri. Rev. no.35/14 Harbeen Arora v. Jatinder Kaur & Ors.
1Vasant Vihar, New Delhi (hereinafter referred to as property in question) was subleased and a perpetual sublease agreement Ex.CW- 2/1 was executed in favour of Late Sh. Gyani Pratap Singh, Ms. Jatinder Kaur and Amrik Singh on 10.09.1971. The Revisionist was in possession of a portion of the first floor of the property and this is the main bone of contention amongst the litigating parties. It is alleged that the respondent no.1 to 3 had an evil eye on the said portion of the property and wanted to grab it by hook or by crook. That the said malafied intention let to the souring of relations between the Revisionist and the respondent no.1 to 3 . It is alleged that since November 2004 the respondent no.1 to 3 were harassing the Revisionist and on 28.11.2004 when the Revisionist was alone in her portion of the property, the respondent no.1 to 3 started forcing her to vacate the said portion and threatened her. Subsequently, on 29.11.2004 the respondent no.1 to 3 allegedly locked the garage in the property in question which was in occupation of the Revisionist and her family members. Later, on 30.11.2004 the Revisionist filed a complaint before the concerned police officer and on the same day when the Revisionist was alone in the said premises, the respondent no.1 to 3 barged into her room and threw away the articles and the belonging of the Revisionist. The PHD theses of the Revisionist was also torn and respondent no.1 pushed the Revisionist to the wall. It is alleged that the respondents were accompanied by some musclemen Cri. Rev. no.35/14 Harbeen Arora v. Jatinder Kaur & Ors.
2at that time. Revisionist was hurt in consequence of the illegal actions of the respondent no.1 to 3 . The respondent no.1 to 3 also threatened the Revisionist and abused her. Revisionist called the police and on the same day at about 09:00 p.m., Revisionist went to PS with her father to make a complaint but was shocked to see the hostile and the threatening behaviour of SHO of PS: Vasant Vihar towards her. SHO concerned had threatened the Revisionist and her father that if his directions were not complied with then he would implicate them in a false case. Finding no alternate way out, father of the Revisionist gave the keys to SHO and the possession of the premises in question was handed over to the respondent no.1 to 3 . It is alleged that the SHO was acting at the instance of and in conspiracy with the respondent no.1 to 3. Several complaints were made to the higher police officials but of no avail and hence the complaint case was filed before the ld. Trial Court.
3. Ld. Trial Court after following the due course of law and going through all the material available on record discharged the respondents no.1 to 3 for the offences u/s 352/ 452/ 506 (2) IPC, vide impugned order dated 14.01.2013. Feeling aggrieved with the impugned order of discharge dt. 14.01.2013 this revision petition has been filed by the revisionist.
Cri. Rev. no.35/14 Harbeen Arora v. Jatinder Kaur & Ors.
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4. Arguments were heard. They have also filed written submissions. During the course of arguments ld. Counsel for the revisionist argued and submitted that all the three respondents were discharged vide order of Ld. MM dated 14.01.2013. He further submitted that as per the mandate of Hon'ble Supreme Court of India in cases titled as "Sunil Mehta and Anr. Vs. State of Gujrat & Anr" (2013) 9 Supreme Court Cases 209, wherein it has been observed that:-
""Secondly, because evidence under Chapter XIX (B) has to be recorded in the presence of the accused and if a right of cross-examination was not available to him, he would be no more than an idle spectator in the entire process. The whole object underlying recording of evidence Under Section 244 after the accused has appeared is to ensure that not only does the accused have the opportunity to hear the evidence adduced against him, but also to defend himself by cross-examining the witnesses ............ It is elementary that the ultimate quest in any judicial determination is to arrive at the truth, which is not possible unless the deposition of witnesses goes through the fire of cross-examination. .
In another Amit Kapoor Vs. Ramesh Chander & Anr," (2012) 9 Supreme Court Cases 460, it has also been observed that :-
'Framing of a charge is an exercise of jurisdiction by the trial court in terms of section 228 Cr. PC, unless the accused is discharged under Section 227 Cr. PC....... Once facts and ingredients of the section concerned exists, then the court would be right in presuming that there is ground to proceed against the accused and frame the charge accordingly. "' On these grounds he submitted that order dated 14.01.2013 be set aside.Cri. Rev. no.35/14
Harbeen Arora v. Jatinder Kaur & Ors.4
5. Contrary to it, ld counsel for the respondents no.2 and 3 submitted that the pre-charge evidence was closed by the court of Ld. MM vide order dated 27.09.2012 at the instance of the revisionist observing that: "It is stated by the complainant that she does not want to lead any other evidence at the pre-charge stage." Ld. Counsel for the respondents submitted that the Ld. Magistrate discharged all the accused under section 245 Cr.PC in Criminal Complaint no. 39/2. It is submitted that the present revision petition has been filed in gross violation of the settled law and deserves to be dismissed. He further argued and submitted that during the course of arguments in the court on 15.01.2015 the revisionist restricted its challenge only to the ground that no pre-charge evidence was recorded by the Ld. Magistrate as per the mandate of the judgment of the Hon'ble Supreme Court in Sunil Mehta v. State of Gujrat (2013) 9 SCC 209 and Amit Kapoor v. Ramesh Chander (2012) 9 SCC 460. Ld. Counsel again argued and submitted that facts of the Judgments relied upon by the Ld. Counsel for the revisionist are distinguishable from the present case and same does not apply on the facts of the present case. The whole thrust of the case before the Hon'ble Supreme Court was that no adverse inference can be drawn against the accused without affording him an opportunity to cross examine the prosecution witness. And not where an opportunity has been granted to the complainant to lead evidence, she chooses to adopt her pre Cri. Rev. no.35/14 Harbeen Arora v. Jatinder Kaur & Ors.
5summoning evidence and when another opportunity is granted to her he/she chooses not to lead any further evidence.
6. Ld. Counsel for the respondents further argued and submitted that even if for the sake of arguments it is presumed that no evidence was recorded by the Ld. Magistrate under Section 244 of the Cr.PC and mere adoption of pre-summoning evidence of the complainant is not proper for discharge of an accused, even in that scenario it would be relevant to note that even after such adoption of the evidence by the complainant, the complainant was further granted an opportunity to lead pre-charge evidence but the complainant chose not to lead any further evidence as is clear from the order dated 27.09.2012.
7. Ld. Counsel for the respondents again submitted that Respondents were summoned u/s 352, 452 and 506(2) IPC vide order dated 03.07.2008 by the Ld. Magistrate on the complaint of the revisionist. Thereafter, the pre-charge evidence was led by the Revisionist and the Respondents were discharged since the ingredients of Sections 352, 452 and 506(2) were not made out against the Respondents which would have warranted their conviction if unrebutted. It is submitted that the Ld. Magistrate passed a detailed order after hearing and considering all the issues raised by the Complainant and the same does not suffers from any illegality or any jurisdictional error nor Cri. Rev. no.35/14 Harbeen Arora v. Jatinder Kaur & Ors.
6any such illegality or error has been pointed out by the Revisionist, which would warrant the setting aside of the impugned order. In support of his contentions ld. Counsel for the respondents has relied upon the judgment "Siri Chand Gupta v. Santosh Kumari 2008(4) AD( Delhi) 478 , wherein it has been observed that:-
"Warrant cases instituted otherwise than on a police report are governed by Sections 244 to 246 Cr.PC. .....
14. On the other hand when warrant cases which are instituted on a police report, the approach to be adopted by the Magistrate is covered by Section 239 and 240 which read as under:........
15. A comparison of these provisions show that in the event of a warrant case being instituted otherwise than on a police report, the Magistrate 'shall discharge' an accused if 'upon taking all the evidence referred to in Section 244, the Magistrate considers for the reasons to be recorded that no case against the accused is made out which, if unrebutted, would lead to his conviction.' This is different from the test to be adopted in a warrant case instituted on police report where Section 240 states that the Magistrate shall frame in writing a charge against the accused if he is of the opinion that 'there is ground for presuming that the accused has committed an offence triable under this Chapter'? Therefore while Section 245 envisages that where the Magistrate finds that the pre- charge evidence is not sufficient to warrant conviction then the accused 'shall' be discharged, in a case instituted on a police report is enough if there is 'a ground for presuming that the accused has committed an offence.' It is Therefore clear that where a warrant case is instituted otherwise than on a police report, the task of the Magistrate at the stage of framing charge is to undertake a greater degree of scrutiny of the materials brought because it is not an investigating agency that has filed a report which the Magistrate is required to consider. He is acting on a pre- charge evidence of the complainant and her witnesses and he has to be satisfied that what is presented before him, even if unrebutted, makes out a case for framing a charge. If that evidence, even if unrebutted, does not make out a case against the accused then the Magistrate 'shall discharge' the accused. Therefore the degree of scrutiny of the evidence of the prosecution is much stricter than in the case instituted on a police report."Cri. Rev. no.35/14
Harbeen Arora v. Jatinder Kaur & Ors.
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8. On these grounds ld. Counsel for the respondents no.2 and 3 submitted that the pre-charge evidence was rightly closed by the Ld. Magistrate after giving sufficient opportunities to the complainant. Hence there is no illegality or infirmity in the order passed by the Ld. Magistrate. He prayed that revision petition is liable to be dismissed.
9. Ld. counsel for the respondent no.1 has also filed written submissions. He submitted that present complaint was filed due to civil dispute between the parties. He further submitted that revisionist is the niece of respondents no.1 and 2, who wants to grab the property of her deceased grand father and oust the legal heirs, by hook or by crook. He further submitted that the respondent no.1 has not committed any offence. She is a resident of UK and has stayed in the property in question out of her own right, whenever she visits India. Ld. Counsel for respondent no.1 submitted that admittedly there is no written petition deed and the property has not been partitioned. On these grounds, ld. Counsel for the respondent no.1 submitted that in these circumstances there is no question of trespassing, hence, revision petition is liable to be dismissed with cost.
10.I have perused the impugned order dated 14.01.2013, wherein it has been observed that :-
"APPRECIATION OF EVIDENCE:-
1. One of the basic principles of criminal jurisprudence is "one who seeks relief in the court should approach the court with clean Cri. Rev. no.35/14 Harbeen Arora v. Jatinder Kaur & Ors.8
hands". In this case, the complainant did not appear before the court with clean hands.
CW-1 being the torch bearer of the case did not give a reliable and cogent testimony. She adopted her pre summoning evidence as pre charge evidence. But when cross examined, she did not give a cogent and believable answers as she was not sure about her right to occupy the premises in question. She was not sure about the fact whether any verbal partition of the property in question had at all taken place or not.
Therefore, not only possession but also ownership aspect pertaining to the premises in question remained unclear. This was relevant as she had claimed that accused persons had committed house trespass on her premises which required that the premises in question was infact occupied by the complainant legally. Further, there was no medical record of the complainant available on the file and so the allegations of being hurt by the complainant at the hands of the accused persons remained a bald allegation. It was also not explained as to why the complainant did not prefer to get herself medically examined after the incident.
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She also improved on certain other aspects in comparison to her previous stand:
1. She deposed that the security guards had accompanied the accused persons whereas in her complaint she had designated that security guards as musclemen.
2. Secondly, she stated that those security guards were carrying weapons which initially she had not stated.
3. She stated that she was in possession of the premises in question since birth whereas she had also taken a stand that she was in possession of that premises for the last four years prior to the incident.
4. In her evidence she alleged that all the accused persons had threatened, abused and beaten her but the said allegations were specific and limited to accused No.1 in her initial complaint made to the police Ex.CW-1/I. Apart from that complainant showed her ignorance pertaining to the knowledge of certain material facts related to the case. She did not remember as to whether she had mentioned the date or time of locking of the garage by the accused persons in her complaint or the date or time when she had taken the photographs of said garage. She had no knowledge about the ownership details of the garage and was also unaware of the prayer made in civil litigation pertaining to the property in question. She did not know as to who had accompanied her to the police station on 30.11.2004 and she was also not clear as to whether accused Satinder Kaur had gone to her college on the date of incident.
One cannot pick and choose while contesting a case. However, the complainant in this case picked and deposed the facts which Cri. Rev. no.35/14 Harbeen Arora v. Jatinder Kaur & Ors.
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basically embodied the contents of offences in question. She failed to give clear picture regarding the incident. Further, for want of knowledge regarding above mentioned facts only indicated that either she had no knowledge about those facts as she was not told about then by her father or she intentionally did not depose those facts.
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The complainant did not specifically allege as to what threats were advanced to her by the accused persons. Allegations of being threatened by the accused persons remained a bald and general allegation devoid of any clarity.
Therefore, her allegations were doubtful in nature. Further, there were many witnesses to the incident dated 30.11.2004 i.e. the security guards, other family members of the complainant who had witnessed the incident and the police officials who visited her house. They were mentioned in the list of witnesses filed by the complainant alongwith her complaint. Strangely, these witnesses were not examined when their testimonies could have easily strengthened the case of the complainant. In their absence also, the story of the complainant remained doubtful.
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LEGAL PROVISIONS:-
1. Section 352 IPC talks about punishment to be awarded to a person who assaults or uses criminal force on any person otherwise than on grave provocation. To establish this section it is necessary that the person i.e. the victim should have been assaulted or subjected to criminal force. In the present case, there is nothing on record to show that the complainant was infact assaulted by the alleged accused persons or any criminal force was used upon her. There is no medical report or the photographs of the complainant on record to prove the allegations. Further, it is the case of the complainant that she had deployed certain security guards outside her room due to apprehension of misdeeds by the accused persons. However, the services of these security guards were not availed by the complainant despite the alleged fact that she was assaulted by the accused persons as if she wanted the same to happen and had deployed the security forces only as a show piece. Further, none of the other family members or the security guards who were present at the spot at the time of incident were infact examined by the complainant in support of her case. CW-2 was not present at the spot at the time of incident and he is a mere hearsay witness to the said episode.
2. Section 452 IPC is also not made out against the accused persons as this section talks about house trespass after preparation for hurt, assault or wrongful restraint. Here, the complainant failed to prove that the alleged room was in her possession at the time of the commission of offence. She has Cri. Rev. no.35/14 Harbeen Arora v. Jatinder Kaur & Ors.10
relied upon an oral partition wherein she stated that there was an oral agreement between the family members allowing the complainant to occupy the alleged portion of the property in question No documentary proof regarding the partition and possession of 1⁄4 portion of the property in question has been filed. Further, as per CW-2 the said alleged portion i.e. the room which was allegedly in possession of the complainant at the time of the incident did not exist at the time of the oral agreement. Thus, without the proof of possession by the complainant of the said room in the property in question, the offence of house trespass cannot be made out against the accused persons.
3. Section 506 (2) IPC talks about punishment to be awarded to a person who criminally intimidates another person with an injury to his person, reputation or property with an intent to cause alarm to that person. Here, the allegation of criminal intimidation should be specific. But in the present case the complainant made vague allegations of criminal intimidation without specifying the kind of threats extended to her by the alleged accused persons. CONCLUSION:
But for all the aforesaid reasons accused cannot be made to blame and no case is made out against the accused persons which would lead to their conviction if it remains unrebutted. Thus, the present complaint if dismissed and the accused no.1, 2 and 3 are discharged u/s 245 Cr.P.C. for offence u/s 352/452/ 506(2) IPC. "
11.Having given careful consideration to the submissions of ld. Counsel for the revisionist and ld. Counsel for the respondents I am of the view that the determination of the fact on charge is the exclusive domain of the original court of jurisdiction yet this court has limited jurisdiction to enter the area of discretion of Ld. M.M. on the ground of propriety and correctness. This court is conscious of the fact that to arrive at a prima facie view for framing of charge is the sole discretion of the Court of ld. MM. The citations i.e. 1.Sunil Mehta and Anr. v. State of Gujrat & Anr. and 2.Amit Kapoor v. Ramesh Chander & Anr. relied upon by the ld. Counsel for the revisionist, the gist of which are that : "The Magistrate framed charges against the accused without providing an opportunity to the accused to cross examine the Complainant." and ''the Cri. Rev. no.35/14 Harbeen Arora v. Jatinder Kaur & Ors.11
recording of pre-charge evidence is mandatory and the revisionist were discharge without recording any pre-charge evidence. ' Perusal of the case file reveals that pre-summoning evidence was recorded and being the offences u/s 352// 452/ 506 (2) IPC as warrant trial cases so pre-charge evidence was also recorded. During the course of pre-charge evidence revisionist examined two witnesses namely CW1 Ms. Harbeen Arora and CW2 Anand Singh. CW1 adopted her pre- summoning evidence which were recorded on 04.07.2006 and 16.07.2007 as pre-charge evidence on 14.01.2011. CW1 Ms. Harbeen Arora was duly cross-examined at length by all the respondents vide orders dated 15.03.2011; 04.04.2011; 04.07.2011; 10.02.2012; and 01.03.2012. CW2 Anand Singh also adopted his pre-summoning evidence which was recorded on 16.10.2007 as his statement in pre-charge evidence on 14.01.2011. CW2 Anand Singh was also cross-examined at length vide orders dated 23.03.2012; 06.07.2012; and 27.09.2012. Revisionist's evidence was closed on her instance vide order dated 27.09.2012. In light of these facts and circumstances of the case citations as relied upon by the ld. Counsel for the revisionist are not applicable. Respondent has also relied upon the citation "Siri Chand Gupta v. Santosh Kumari 2008(4) AD( Delhi) 478 wherein it has been observed that: "Therefore while Section 245 envisages that where the Magistrate finds that the pre-charge evidence is not sufficient to warrant conviction then the accused 'shall' be discharged,..." Careful perusal of the impugned order dated Cri. Rev. no.35/14 Harbeen Arora v. Jatinder Kaur & Ors.12
14.01.2013 reveals that complainant / revisionist has alleged oral allegations and the most interesting aspect in this case is that neither the extent and nature of possession nor her ownership has been brought on record during her pre-summoning evidence as well as pre- charge evidence. Apart from this, witnesses who could have established the extent and nature of possession of the revisionist i.e. her family members and security guards but they have not been brought on record as witnesses, which brings the case of the revisionist under the shadow of doubt for establishing a prima facie case for the offences u/s 352/ 452/ 506 (2) IPC as perusal of impugned order dated 14.01.2013 carefully reveals that revisionist has not examined her family members and security guards who have been mentioned in the complaint, which could cogently have made out a prima facie case against the respondents for the offences u/s 352/452/506(2) IPC. In light of these facts and circumstances, I do not find it a fit case to allow the revision petition at this stage. Accordingly, the revision petition is dismissed and impugned order dated 14.01.2013 discharging the respondents is upheld. Trial Court record, if any, be sent back with a copy of the order. Revision petition/ proceedings be consigned to record room. ANNOUNCED IN THE OPEN COURT ON THIS 22.01.2015 (RAJ KAPOOR) ADDITIONAL SESSIONS JUDGE-03 PATIALA HOUSE COURTS NEW DELHI Cri. Rev. no.35/14 Harbeen Arora v. Jatinder Kaur & Ors.
13 Cri. Rev. no.35/14 Harbeen Arora v. Jatinder Kaur & Ors 22.01.2015 Pre: None for the revisionist.
Ld. Counsel Sh. Udaibir Singh Kochar for respondents. File perused.
Vide separate detailed order placed along side in the file, the revision petition is dismissed and impugned order dated 14.01.2013 discharging the respondents is upheld. Trial Court record, if any, be sent back with a copy of the order. Revision petition/ proceedings be consigned to record room.
(RAJ KAPOOR) ADDITIONAL SESSIONS JUDGE-03 PATIALA HOUSE COURTS NEW DELHI Cri. Rev. no.35/14 Harbeen Arora v. Jatinder Kaur & Ors.14