Delhi District Court
Renu Kumari vs Savita Kumari on 10 November, 2022
IN THE COURT OF SHRI ANUJ AGRAWAL, ADDITIONAL
SESSIONS JUDGE-05, SOUTH EAST DISTRICT, SAKET
COURTS, NEW DELHI
REVISION PETITION NO. 456 of 2022
CNR No. DLSE01-010366-2022
IN THE MATTER OF:
Renu Kumari
D/o Late Gp. Capt. Ved Kumar,
R/o C-264, Ground Floor, Defence colony,
New Delhi-110024.
.......Revisionist
Versus
Savita Kumari
D/o Sh. Raghav Singh,
R/o C-264, First Floor, Defence Colony,
New Delhi-110024.
Also At:
H. No. 78, Geeta Apartment,
Near Lifeline Hospital, Geeta Colony,
Gandhi Nagar, Delhi-110031.
........Respondent
Instituted on : 07.11.2022
Reserved on : 07.11.2022
Pronounced on : 10.11.2022
Crl Rev. No. 456 of 2022 Renu Kumari Vs. Savita Kumari Page No. 1 of 10
Digitally signed by
ANUJ ANUJ AGRAWAL
AGRAWAL Date: 2022.11.10
13:14:47 +0530
JUDGMENT
1. Vide instant revision, revisionist takes exception to the order dated 30.09.2022, whereby her complaint u/s 200 CrPC in case bearing Ct Case No. 809/2022 titled as Savita Kumari Vs. Renu Kumari stood dismissed by Ld. Metropolitan Magistrate-09, South East District, Saket Court, New Delhi in terms of section 203 CrPC.
2. Brief facts as noted by Ld. Trial Court in the impugned order are not in dispute and the same are being reproduced for the sake of convenience:-
"The brief facts of the complaint are that the complainant is residing at C-264, ground floor, Defence Colony, New Delhi- 110024 along with her brother Mr. Vineet Kumar. It is the case of the complainant that in February 2018, the proposed accused had approached the complaint's brother to take the first floor of the above said property on rent and accordingly a rent agreement dated 11.02.2018 was entered into between the parties.
The said rent agreement was terminated vide a formal legal notice dated 10.11.2021 sent by the Lawyer of the complainant and the proposed accused was asked to vacate the premised within 15 days i.e. 24.11.2021. It is the case of the complainant that she had asked the proposed accused to pay the outstanding rent or to vacate the said property. However, on one pretext or the other the proposed accused delayed and till now she has not paid the outstanding dues. It is the case of the complainant that on one instance, the complainant was getting ready to leave for work when a plumber was called by the proposed accused and she was threatened to open the lock of her house against her will to allow the plumbing work to be done at the backyard. The complainant further alleged that she was abused, insulted and harassed in the presence of police officials, plumbers and maids by using derogatory remarks."
Crl Rev. No. 456 of 2022 Renu Kumari Vs. Savita Kumari Page No. 2 of 10 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2022.11.10 13:14:56 +0530
3. The complainant/revisionist examined herself as the only witness (CW-1) in pre-summoning evidence and reiterated the allegations made in the complaint. After conclusion of pre-summoning evidence and after hearing the revisionist, Ld. Magistrate, vide impugned order, dismissed the complaint of revisionist with following observations:-
"From the facts of the case, it is not in dispute that the proposed accused had entered lawfully into the premised by virtue of being a tenant. However, neither from the complainant nor from the testimony of the complainant before this court no material has come on record to satisfy the requirement of mens rea for the offence of criminal trespass i.e. either an intention to commit an offence or to intimidate, insult or annoy the complainant.
Merely not paying the rent or refusing to leave in absence of any specific allegation, which would show an intention to show to intimidate, insult or annoy cannot tantamount to such an intention, especially, where the complainant herself has already filed a civil suit for recovery of possession and arrears of rent along with permanent/ temporary injunction. I find that in the present case, the present complaint has been filed by the complainant only as an arm twisting tool to create pressure upon the proposed accused to clear the outstanding dues of rent, which the complainant would anyway receive, once she becomes successful in the civil suit.
From the allegations made in the complainant as well as the testimony, even if it is assumed that the proposed accused has refused to vacate the premises, merely by overshooting the tenure of the tendency, one can be termed, at best, as tenant-at- sufferance and in absence of any specific allegations which would show that the proposed accused has the requisite intention to commit offence or intention to intimidate or annoy the complainant, no offence u/s 447IPC could be said to have been committed.
From the allegations made in the complaint as well as the testimony, the offences of criminal trespass u/s 447 IPC or criminal intimidation u/s 506 IPC has not been made out. NO allegations qua the offence u/s 509 IPC has been made out from Crl Rev. No. 456 of 2022 Renu Kumari Vs. Savita Kumari Page No. 3 of 10 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2022.11.10 13:15:06 +0530 the complaint. I find that in the present complainant no grounds have been made out to summon the accused persons."
4. Revisionist is aggrieved with the said order and has assailed the impugned order on various grounds which can be summarized as under :-
i) That the impugned order suffers from the vice of non application of mind and errors apparent on the face of the record.
(ii) That Ld Trial Court failed to consider that there are specific allegations against the respondent for offence u/s 441 IPC.
(iii) That Ld Trial Court failed to consider that despite the rent agreement terminated on 10.11.2021 and despite several requests made by revisionist, respondent did not vacate the property.
(iv) That Ld. Trial Court failed to consider that the respondent is residing in the premises unlawfully and had made several structural changes in the same.
(v) That the impugned order is bad in the eyes of law and same is liable to be set aside.
5. Ld. Counsel for the revisionist advanced arguments on the line of grounds as taken in the instant revision petition. He forcefully argued that the impugned order is not sustainable in the eyes of law as the facts averred disclose commission of offence u/s 448 IPC and respondent is liable to be summoned for said offence. It is argued that respondent is continuing in possession of the tenanted premises despite termination of tenancy to the annoyance of revisionist bringing his act within ambit of ' Crl Rev. No. 456 of 2022 Renu Kumari Vs. Savita Kumari Page No. 4 of 10 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2022.11.10 13:15:16 +0530 criminal trespass'.
6. I have heard contentions of Ld counsel for revisionist and perused the record.
7. In the matter of Taron Mohan v. State & Anr 2021 SCC OnLine Del 312 Hon'ble Delhi High Court has observed as under:-
"9. The scope of interference in a revision petition is extremely narrow. It is well settled that Section 397 CrPC gives the High Courts or the Sessions Courts jurisdiction to consider the correctness, legality or propriety of any finding inter se an order and as to the regularity of the proceedings of any inferior court. It is also well settled that while considering the legality, propriety or correctness of a finding or a conclusion, normally the revising court does not dwell at length upon the facts and evidence of the case. A court in revision considers the material only to satisfy itself about the legality and propriety of the findings, sentence and order and refrains from substituting its own conclusion on an elaborate consideration of evidence."
8. Further, Hon'ble Apex Court in Sanjaysinh Ramrao Chavan vs. Dattatray Gulabrao Phalke and others, 2015 (3) SCC 123 observed as under:
"14.....Unless the order passed by the Magistrate is perverse or the view taken by the court is wholly unreasonable or there is non-consideration of any relevant material or there is palpable misreading of records, the Revisional Court is not justified in setting aside the order, merely because another view is possible. The Revisional Court is not meant to act as an appellate court.The whole purpose of the revisional jurisdiction is to preserve the power in the court to do justice in accordance with the principles of criminal jurisprudence. The revisional power of the court under Sections 397 to 401 CrPC is not to be equated with that of Crl Rev. No. 456 of 2022 Renu Kumari Vs. Savita Kumari Page No. 5 of 10 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2022.11.10 13:15:25 +0530 an appeal. Unless the finding of the court, whose decision is sought to be revised, is shown to be perverse or untenable in law or is grossly erroneous or glaringly unreasonable or where the decision is based on no material or where the material facts are wholly ignored or where the judicial discretion is exercised arbitrarily or capriciously, the courts may not interfere with decision in exercise of their revisional jurisdiction."
14. In the above case also conviction of the accused was recorded, the High Court set aside the order of conviction by substituting its own view. This Court set aside the High Court's order holding that the High Court exceeded its jurisdiction in substituting its views and that too without any legal basis."
9. Therefore, in view of the settled position of law, this court in its revisional jurisdiction, is not expected to substitute its own view with that of Ld. Trial Court until and unless the order passed by Ld. Trial Court suffers from jurisdictional error or patent infirmity/illegality. In the instant case, as evident from record, Ld. Magistrate while narrating (in detail) the facts, passed a well reasoned detailed order, thereby dismissing the complaint and therefore, this court cannot and rather ought not substitute its own view with that of Ld. Magistrate (while exercising its revisional jurisdiction) and thereby arriving at a different conclusion.
10. Suffice it would be to say the facts as averred do not constitute any offence much less the offence of criminal trespass for want of basic ingredient i.e. mens rea. In my view, simply remaining in possession despite termination of tenancy cannot considered to be an offence of criminal trespass as defined under section 441 IPC. To constitute the essence of the offence of criminal trespass under section Crl Rev. No. 456 of 2022 Renu Kumari Vs. Savita Kumari Page No. 6 of 10 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2022.11.10 13:15:34 +0530 441(substituted) the basic ingredient is the intention and not simple occupation after service of notice to vacate as possession of a tenant by sufferance or by 'holding over' is a juridical possession and is protected by law. Thus, possession of a tenant after determination of tenancy and service of a notice to quit, cannot be considered to be that of a trespasser. In my considered view, the matter is purely civil in nature pertaining to non payment of rent and vacation of tenanted premises and have been filed as a pressure tactic. Failed obligation and frustrated expectations cannot and rather must not give rise to any criminal liability.
11. Even Superior Courts have time and again deprecated the initiation of false criminal proceedings in cases having the elements of civil dispute. The quick relief offered by a criminal prosecution as opposed to a civil dispute incentives the litigant to initiate false and vexatious proceedings. Moreover, in a country suffering the scourge of world's largest backlog of cases, litigants often view criminal proceedings as a tool to pressurize and obtain a favourable settlement from other side. The Hon'ble Apex Court in G. Sagar Suri Vs State of UP, Crl Appeal No.91/2000, date of decision 28.01.2000 has categorically observed as under :-
"It is to be seen if a matter, which is essentially of civil nature, has been given a cloak of criminal offence. Criminal proceedings are not a short cut of other remedies available in law. Before issuing process a criminal court has to exercise a great deal of caution. For the accused it is a serious matter. This court has laid certain principles on the basis of which High Court is to exercise its jurisdiction under section 482 Cr.P.C. Jurisdiction under this section has to be exercised to prevent abuse of the process of any court or otherwise to Crl Rev. No. 456 of 2022 Renu Kumari Vs. Savita Kumari Page No. 7 of 10 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2022.11.10 13:15:44 +0530 secure the ends of justice".
12. Further, in case titled as M/s Indian Oil Corporation VS M/s NEPC India Ltd & Ors, in Appeal (Crl) No. 834/2002 date of judgment 20.07.2006, Hon'ble Apex court has observed as under:-
"While on this issue, it is necessary to take notice of a growing tendency in business circles to convert purely civil disputes into criminal cases. This is obviously on account of a prevalent impression that civil law remedies are time consuming and do not adequately protect the interests of lenders/creditors. Such a tendency is seen in several family disputes also, leading to irretrievable break down of marriages/families. There is also an impression that if a person could somehow be entangled in a criminal prosecution, there is a likelihood of imminent settlement. Any effort to settle civil disputes and claims, which do not involve any criminal offence, by applying pressure though criminal prosecution should be deprecated and discouraged."
13. Furthermore, summoning of any person as an accused in a criminal case is a serious matter as held by Hon'ble Apex Court in M/s. Pepsi Foods vs. Special Ltd. vs. Special Judicial Magistrate, AIR 1998 SC 128. The relevant observations of Hon'ble Apex Court is being reproduced as under:-
"Summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. It is not that the complainant has to bring only two witnesses to support his allegations in the complaint to have the criminal law set into motion. The order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. He has to examine the nature of allegations made in the complaint and the evidence both oral and documentary in support thereof and that would be sufficient for the complainant to succeed in bringing charge home to the accused. It is not that the Magistrate is a silent spectator at the Crl Rev. No. 456 of 2022 Renu Kumari Vs. Savita Kumari Page No. 8 of 10 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2022.11.10 13:15:54 +0530 time of recording of preliminary evidence before summoning of the accused. Magistrate has to carefully scrutinize the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations or otherwise and then examine if any offence is prima facie committed by all or any of the accused".
14. Similar are the observations of Apex Court in a recent judgment titled as Ravindranatha Bajpe Vs Mangalore Special Economic Zone Ltd., LL 2021 SC 505, Crl. Appeal No. 1047-1048/2021, decided on 27.09.2021.
15. If the present case is tested upon the touchstone of the principles as laid down in aforesaid cases, no ground is made out for summoning of the respondent and therefore the view as taken by Ld. Magistrate cannot be faulted with in the factual matrix of present case. Ld. Counsel for revisionist has failed to point out any patent illegality/ infirmity or jurisdictional error in the impugned order and therefore, present petition is liable to be dismissed.
16. With these observations, it is held that there is no patent illegality, impropriety or jurisdictional error in the impugned order. The revision petition stands dismissed accordingly being devoid of any merit.
17. TCR be sent back to the Ld. Trial Court along with copy of this judgment.
Crl Rev. No. 456 of 2022 Renu Kumari Vs. Savita Kumari Page No. 9 of 10
Digitally signed by
ANUJ ANUJ AGRAWAL
AGRAWAL Date: 2022.11.10
13:16:05 +0530
18. Revision file be consigned to Record Room after due compliance. ANUJ Digitally signed by ANUJ AGRAWAL AGRAWAL Date: 2022.11.10 13:16:14 +0530 Announced in the open (ANUJ AGRAWAL) Court on 10th November, 2022 Additional Sessions Judge-05, South East, Saket Courts, New Delhi Crl Rev. No. 456 of 2022 Renu Kumari Vs. Savita Kumari Page No. 10 of 10