Delhi District Court
Deepak Arora vs State on 15 December, 2012
IN THE COURT OF MS. SAVITA RAO, ADDITIONAL SESSIONS
JUDGE01, NORTH, DELHI
Crl. Revision No. : 42/2012
CC No. : 2612/08
P.S. : Subzi Mandi
Case ID No. : 02401R0498842010
IN THE MATTER OF :
Deepak Arora
S/o Sh. Sant 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 : 19.9.2011
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.: 42/12 1/9
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 6.8.2010 whereby on an application u/s 362 Cr.P.C., Ld. Trial court passed the summoning order against the petitioner, on the complaint filed by the respondents wherein three accused persons were named out of which one accused Om Prakash Tuteja has reported to be expired and the other accused Sant Singh Arora was summoned initially but no order was passed against the petitioner herein. Thereafter realizing that the petitioner was also beneficiary as per the sale documents, the summoning order was passed against him vide impugned order dated 6.8.2010.
2. Ld. Counsel for petitioner challenged the said order in revision petition before Ld. ASJ and vide order dated 1.11.2010 the said order passed by Ld. Trial court was set aside. However on the revision petition against the said order of Ld. ASJ dated 1.11.2010, Hon'ble High Court allowed the revision petition of respondents since no notice was issued to them prior to allowing the revision petition which was termed as violation of the natural justice.
3. The parties have been heard again. It is submitted by Ld. Counsel for petitioner that the application u/s 362 Cr.P.C. could have been entertained only for the correction of clerical and arithmetical errors in the order and not for taking of the fresh cognizance. However perusal Crl. Rev. No.: 42/12 2/9 of the record reveals, as is already observed, that the complaint was filed against three accused persons . One of them had expired and the summoning order was passed against the other accused Sant Singh Arora. But no discussion was made with respect to the obligation/responsibility of the third accused who is petitioner herein. Though it is correct that in terms of section 362 Cr.P.C, only arithmetical or clerical errors can be corrected but it may be noted that since no order at all had been passed against the petitioner herein, therefore taking of cognizance against him subsequently neither be termed as review of the order already passed which is not permissible as per section 362 of Cr.P.C. , nor can be said to be alteration in the order already passed. Hence, no illegality or infirmity is found in the order of Ld. Trial court to the extent of taking cognizance against the petitioner herein, however it is yet to be seen whether the summoning order otherwise was appropriate against the petitioner and whether prima faice case is made out for his summoning alongwith other accused before Ld. Trial court for the offences alleged against them by the complainants.
4. Briefly stating, the facts relevant for disposal of instant revision petition are that 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 Sant Singh 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, Crl. Rev. No.: 42/12 3/9 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 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 Sh. 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 h. 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 Sant Singh Arora in the suit property on 15.11.96. Thereafter suit for possession was filed on 30.10.2005 wherein Sh. Sant Singh Arora moved an application under order 7 Rule 11 CPC on 6.2.2007 relying upon those forged and Crl. Rev. No.: 42/12 4/9 manipulated documents in connivance with accused no. 1 Om Prakash Tuteja. Accused no. 2/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 and 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 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 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 Sant Singh Arora before the courts without observation of Ld. Trial court how the case for Crl. Rev. No.: 42/12 5/9 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 Sant Singh Arora had purchased the property in question, copy of which did not contain all the particulars but the original 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 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, 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 , Crl. Rev. No.: 42/12 6/9 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 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 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, Sant Singh Arora and Deepak Arora i.e. petitioner herein 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 Crl. Rev. No.: 42/12 7/9 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 herein as well as accused Sant Singh 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 Sant Singh Arora and Deepak Arora 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 Crl. Rev. No.: 42/12 8/9 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 predecessorininterest 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 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 6.8.2010 of summoning passed by Ld. Trial court is not sustainable and is accordingly set aside.
7. Revision petition is disposed off in above terms. 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.: 42/12 9/9