Delhi District Court
Ashok Sikka vs . A. K Nigam And Ors. on 25 January, 2016
CC No. 21/1/13 PS ; Neb Sarai Ashok Sikka Vs. A. K Nigam and ors. 25.01.2016
Present: Complainant in person with counsel.
Vide this order, I shall decide as to whether case for summoning the proposed accused persons which are 10 in numbers is made out or not.
In brief the facts of the case are that father of complainant had constructed the house bearing no. B5 at Sanik Farm, Neb Sarai, New Delhi. At that time construction was not allowed at Sainik Farm. However, since large number of houses had come up in Delhi, in order to avoid hardship from legal action and to safeguard such persons who had constructed unauthorized houses, the Parliament passed, Delhi Laws ( Special Provisions ) Act, 2006 whereby the enforceability of punitive action under the relevant provisions of DMC Act, 1957 or any other law, was stayed.
The contention of complaint is that his aforesaid property was protected under the provisions of Delhi Laws ( Special Provisions ) Act 2006, and could not have been demolished even under any court order. But, despite that complainant was the only person whose house was demolished continuously for 5 days on May 23 to 30th May to the extent of complete demolition from top to bottom for reasons best known to the MCD and accused persons. It is further alleged that property of complainant was in existence even in 2000, thus was protected under under the provisions of Delhi Laws ( Special Provisions ) Act 2006. It is alleged that Hon'ble Delhi High Court had constituted a committee which had submitted its report on 23.01.2001 wherein it was mentioned that only front canopy and underneath of the house of complainant was demolished, Cont.......
2 which proves that rest of portion was in existence prior to 2000. It is further alleged that after 2007, 400 new houses have been built till date. It is submitted that these houses are not protected under the provisions of Delhi Laws ( Special Provisions ) Act 2006, but same are not demolished. It is further stated that proposed accused persons no. 9 and accused no.10 in order to protect accused 1 to 8, have given wrong statements before the Hon'ble High Court in Writ Petition ( Crl) 1558/2011. Therefore, it is alleged that accused no. 9 & accused no. 10 are liable to be prosecuted u/s 217, 218 & 219 of IPC . It is also alleged that on 20.05.2007 despite having knowledge of special law proposed accused no. 6 to 8 namely Sh. R. P Meena, Sh. Anil Kumar and Sh. Sunil Dawar barged into the house of the complainant and demanded extortion money of Rs. 5 lac and they threatened the complainant that if he did not pay the said extortion amount they would demolish the house entirely. It is further alleged that this committee of MCD also misled Hon'ble Delhi High Court and thus entered into criminal conspiracy to mislead the Hon'ble Delhi High Court. It further alleged accused Sh. R. P Meena accepted allegedly a packet from Mrs. Khemka, whose house no. J 250 was also recorded to be demolished completely but was not touched at all. It is further alleged that on 23.05.2007 accused persons 6, 7 and 8 barged into the house of the complainant and again extorted Rs. 5 lac cash. It is further alleged that said accused persons alongwith labourers, demolition machines and the local police without giving prior notice or any warning to the women and child who were occupying the house of the complainant, started demolishing the entire house of the complainant. It is further alleged that complainant made complaint to PS Ambedkar Nagar, but no action was taken against the accused persons. On these facts, complainant want that accused persons 1 to 10 be summoned to face the trial u/s 217, 218,219,341,342,379,380, 384,427,448,452 3 & 120B of Indian Penal Code.
During presummoning evidence complainant appeared in witness box and examined himself as CW1. He also examined 6 other witnesses. CW1 deposed on line of his complaint.
In the present case, without discussing the evidence on merit, in order to decide the case it would be pertinent to discuss the maintainability of this complaint. This complaint was filed in the court on 09.05.2013. As per complainant the alleged incident took place in year 2007. Complainant prayed in his complaint that proposed accused persons be summoned to face the trial u/s 217, 218,219,341,342,379,380,384,427,448,452 & 120B of Indian Penal Code.
However, during argument he also stated the section 200,455,420,427,466,468,479 IPC are also attracted.
The offences u/s 342,167,166,341,427,448,217,218,379,417,384 IPC are punishable with imprisonment upto 3 years . Since, the complaint was filed after passing of more than 3 years without application for condonation of delay, cognizance of all these offences is barred by limitations, thus denied.
For taking cognizance u/s 193, 199 & 200 IPC complaint from the concerned court where false evidence was given or false report was filed is required. There is no such complaint from the court in which false report was filed and in which false evidence was given. Thus, this court cannot proceed even u/s193, 199 & 200 IPC .
Complainant also want that accused persons be summoned to face the trial u/s 420 IPC . However, all the allegations even if taken to be true on its face value, it does not fulfill the requirement of section 420 IPC.
Section 420 IPC punishes whosoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, 4 alter or destroy the whole or any part of valuable security. In the present case there is no deception played upon anyone, no one was cheated and no property was delivered. Therefore, no offence u/s 420 IPC is made out.
Section 468 IPC deals with a person who make forged document for purpose of cheating. In the present case, there are allegations that false report were made and has been filed before Hon'ble Delhi High Court. Telling false facts is not forgery within the meaning of section 463 & 464 IPC as same cannot be said to be either forged document or false document. Thus, no summoning u/s 468,471 IPC can be done.
Complainant has also alleged that offence 455 IPC is attracted . Section 455 IPC punishes a person whosoever commit lurking housetrespass, or house breaking, having made preparation for causing hurt to any person, or for assaulting any person, or for wrongfully restraining any person, or for putting any person in fear of hurt, or of assault, or wrongful restraint .
In the present case, lurking house tress pass is defined by section 443 IPC. As per section 443 IPC, whosoever commits housetresspass having taken precautions to conceal such house tresspass from some person who has a right to exclude or eject the trespasser from the building, is said to commit offence u/s 443 IPC. In the present case, admittedly the member of demolishing team did not take any precautions to conceal therefore, there act cannot be said to be an act with the meaning of section 443 IPC. Section house breaking is defined under section 445 IPC. As per section 445 IPC criminal tresspass if affected by way of 6 ways given in section 445 IPC, then the housetresspass is house breaking with the meaning of section 445 IPC. In the present case, there is no allegations that any of proposed accused entered or quits through the passage made by themselves or through the passage not intend to be used by person or 5 through the passage which was opened by tresspasser or by any abettor, neither the allegations are that the alleged house trespass was committed by opening any lock or by using criminal force or by opening anything which he knows to be fastened against the entrance. Furthermore, there is no allegations that proposed accused persons, police officials or labourers had come after making preparation for causing hurt, wrongful restraint or fear of hurt restraint or assault. Thus, all the ingredients of section 455 IPC are missing, hence no case for proceedings under 455 IPC is made out. Similarly, as there is no evidence that proposed accused persons, police officials or labourers had come after making preparation for causing hurt, wrongful restraint or fear of hurt restraint or assault, no case for proceedings under 452 IPC is made out. In evidence, complainant stated that his family members were detained. No family members were produced as witness during presummoning evidence. It is also not mentioned where they were detained. The section 452 IPC deals with situation where the tresspasser come after already having made preparation to cause hurt, wrongful restraint etc. There is no such evidence that prior preparation were made for causing wrongful restraint. It is also not mentioned who out of 1 to 10 accused persons had restrained the family members of complainant. Section 452 IPC does not cover a situation where tresspass is made and thereafter wrongful restraint is used, it deal with situation where tresspass is made after already having made preparation to cause such restraint, which is missing in the present case. Therefore, no offence u/s 452 IPC is made out from the facts mentioned by the complainant.
In the present case, complainant has also alleged that his household items were stolen by the proposed accused persons. What articles were stolen are not mentioned in the complaint. It is mentioned in the evidence that proposed 6 accused are R. P Meena, Anil Kumar and Sunil Dabar in connivance with labourers stolen the valuable and precious items from his house. However, this statement is vague statement. In absence of clarifications on the points what articles were stolen, who stole the articles, who saw it, on which date same were stolen, no reliance can be placed upon this vague statement, accordingly no summoning can be made for offence u/s 380 IPC.
The allegations for asking for bribe of Rs. 5 lac is an offence under Prevention of Corruption Act, however this court is not competent to take cognizance for the offences committed under P.C Act.
In the present case, it is prayed by the complainant that proposed accused persons 9 and 10 are liable to be prosecuted under section 219 beside 217 and 218 IPC. As per allegation made in para 7 VII, proposed accused 9 and 10 in order to protect accused persons 1 to 8 gave affidavit containing false statements that construction of property of complainant was new whereas proposed no. 3 had already given statement in February 2007 i.e prior to demolition that construction was old. Admittedly, these statements were made before Hon'ble High Court. The territorial jurisdiction of this court does not extent to the area where the building of Hon'ble High Court is situated. Thus, this court cannot proceed u/s 219 IPC , therefore the complaint as far as section 219 IPC is concerned is returned u/s 201 CrPC on filing of certified copies of documents.
Accordingly, in view of above discussions, this court is of the opinion that no ground for summoning any of proposed accused is made out, accordingly complaint as far as all the offences except 219 IPC is dismissed.
File be consigned to record room.
(Ankit Singla) MM03/SD/Saket 25.01.2016