Delhi District Court
Vijay Singh vs . The State on 10 October, 2018
Vijay Singh Vs. The State
CR No:359/2017
IN THE COURT OF SH. HARISH DUDANI, SPECIAL JUDGE,
(PC ACT) CBI-I DWARKA COURTS: NEW DELHI.
1. Sh. Vijay Singh
2. Sh. Raj Singh
3. Sh. Jasraj
All sons of Late Sumer Singh
R/o Village Pochan Pur
New Delhi- 110078.
.............Revisionists
VERSUS
1. State of NCT of Delhi.
2. Sh. Lalit Kumar Betala
S/o Sh. Sayar Chand Betala,
R/o B-25, 1st Floor, Kirti Nagar,
New Delhi.
........Respondents
CR No. 359/2017
Date of Institution 04.08.2017
Police Station Dwarka, Sector-23
Reserved for orders on 04.10.2018
Judgment announced on 10.10.2018
JUDGMENT
CR No:359/2017 Page 1 of 21 D.O.J.10.10.2018 Vijay Singh Vs. The State CR No:359/2017
1. This revision petition under Section 397 Cr.P.C.
is directed against the impugned order dated 04.07.2017 passed by Ld. ACMM (SW), Dwarka Courts, New Delhi whereby Ld. ACMM (SW) has been pleased to frame charge for offences under Sections 448/34 IPC against the revisionist.
2. The revision petition arises out of FIR no.
283/16, under Sections 448/427/34 IPC registered at PS Sector 23, Dwarka on the basis of complaint dated 23.01.2016 of Complainant Lalit Kumar Betala(respondent no. 2 herein).
3. Statement of the complaint was recorded wherein he stated that on 03.03.1999 he had purchased the plot no. 139 admeasuring 120Sq Yds in Khasra No. 7/3, Village Pochanpur, Pochanpur Extension, New Delhi for the sum of Rs. 40,000/- from Sh. Sumer Singh S/o Sh. Kehar Singh and Sh. Sumer Singh S/o Sh. Kehar Singh had executed General Power of Attorney, WILL, Agreement to Sell, Affidavit, Possession Letter in his favour and had given the receipt of Rs. 40,000/- to him. In his statement, the complainant has further stated that Sh. Sumer Singh S/o Sh. Kehar Singh had also registered the GPA & the WILL in his favour and handed over the possession of the property to him. It is stated that the Sh. Sumer Singh S/o Sh. Kehar CR No:359/2017 Page 2 of 21 D.O.J.10.10.2018 Vijay Singh Vs. The State CR No:359/2017 Singh had purchased the said property from Sh. Sumer Singh S/o Sh. Hukmi on 04.02.1999 . It is further stated that on 23.01.2016 complainant was informed by his acquaintance Sh. Rameshwarji that one JCB Machine is working on his plot and on enquiry complainant came to know that Vijay Singh S/o Sh. Sumer Singh, Raj Singh S/o Sh. Sumer Singh and Jasraj S/o Sh. Sumer Singh with intent to grab his plot brought the JCB Machine had demolished the boundary wall of the property. It is further stated in the complaint that thereafter when the complainant started for constructing the wall again then Vijay Singh, Raj Singh and Jasraj Singh came there and abused the labours and gave beatings to them and again demolished the wall and thereafter on account of illness, he could not construct the wall of the property. It is further stated in the complaint that on 06.09.2016 when the labours and Mason were doing construction work on the said plot, Vijay Singh, Raj Singh and two-three females came at the said plot and abused them with intent to grab the plot.
4. After conclusion of the investigation, charge sheet for offences under Sections 448/427/34 IPC was filed. After hearing the parties, vide impugned order dated 04.07.2017, Ld. MM was pleased to frame charge under Section 448 IPC r/w Section 34 IPC CR No:359/2017 Page 3 of 21 D.O.J.10.10.2018 Vijay Singh Vs. The State CR No:359/2017 against the accused persons ( revisionists herein).
5. By way of the revision petition, the revisionists have challenged the impugned order dated 04.07.2017 whereby charge for offences under Section 448/34 IPC was framed against the accused persons stating therein that respondent no. 2 wants to grab the property of the revisionists by way of pressurizing them through the present false case. It is stated in the revision petition that the residential plot no. 139, out of Khasra No. 7/3, situated at village Pochanpur, New Delhi was allotted to father of the revisionists namely Sh. Sumer Singh by Gram Sabha vide allotment letter dated 18.11.1987 and the said plot was mutated in the name of father of the revisionists in the revenue records. It is stated in the revision petition that father of the revisionists expired on 19.10.2000 and thereafter the said plot was mutated in the name of revisionists vide Khatoni dated 25.02.2016 and revisionists are in the possession of the said plot. It is stated that respondent no. 2 had never remained in possession of the said plot at any point of time. It is stated in the revision petition that respondent no. 2 had made a false complaint at PS Dwarka, Sector-23 against the revisionists. It is stated that a civil suit bearing CS No. 27242/2016 has been filed by the revisionists CR No:359/2017 Page 4 of 21 D.O.J.10.10.2018 Vijay Singh Vs. The State CR No:359/2017 which is pending in the court of Ld. Civil Judge, Dwarka Courts, New Delhi and despite receiving the notice in the said suit by respondent no. 2, respondent no. 2 started carrying unauthorized and illegal construction over the said plot on 25.09.2016. It is stated in the revision petition that vide order dated 27.09.2016 Ld. Civil Judge had directed the parties to maintain status quo in respect of the property in question. It is stated in the revision petition that impugned order has been passed in a totally monotonous and a routine fashion. It is stated that Ld. Trial Court has ignored the true facts of the case. It is stated that revisionists are the recorded owners and are in possession of the said plot and therefore no charge under Section 448/34 IPC can be framed against the revisionist . It is stated that Ld. Trial Court has ignored the fact as well as law of the land that where there is a vacant plot of land, the title follows possession and the revisionists are the recorded owners in possession of the said plot. It is stated in the revision petition that names of the revisionists are not mentioned in the complainant of respondent no. 2 which was lodged with PS Dwarka, Sector 23 vide DD no. 40B dated 24.01.2016. It is stated that in his complaint dated 24.01.2016 respondent no. 2 has stated that his known CR No:359/2017 Page 5 of 21 D.O.J.10.10.2018 Vijay Singh Vs. The State CR No:359/2017 Rameshwar had informed him about the JCB work over the said plot in question by some persons but said Rameshwar in his statement has not named the revisionists as the persons who were carrying out JCB work over the said plot. Ld. Counsel for the revisionists has prayed for setting aside the impugned order dated 04.07.2014.
6. Respondent no. 2 has filed reply stating therein that he had purchased the plot no. 139 admeasuring 120Sq Yds in Khasra No. 7/3, Village Pochanpur, New Delhi on 03.03.1999 from the father of the revisionists namely Sh. Sumer Singh S/o Hukmi through Sumer Singh S/o Kehar Singh and father of the revisionist had received the sum of Rs. 75,000/- as total sale consideration from Sumer Singh S/o Sh. Kehar Singh and had executed necessary papers in his favour and Sumer Singh S/o Kehar Singh further sold the plot in question to respondent no. 2 vide sale document i.e. General Power of Attorney which was duly registered before Sub Registrar on 03.03.1999 and after the execution of the sale documents of the suit property, he ( respondent no. 2) raised boundary wall over the property and since then the respondent no. 2 is in possession of the property. It is stated in the reply that on 23.01.2016 respondent no. 2 came to know CR No:359/2017 Page 6 of 21 D.O.J.10.10.2018 Vijay Singh Vs. The State CR No:359/2017 that some person had brought JCB machine over the suit property and demolished the wall of the property and is trying to forcibly take possession of the property then respondent no. 2 called the police and both the parties were directed to submit the ownership papers and respondent no. 2 had submitted the ownership papers and police had verified the documents from Sub registrar and found the same as true. It is stated in the reply that on the basis of complaint of respondent no. 2, police had registered a case against the revisionists. It is stated that revisionists have made a false report for loss of documents. It is stated that revisionists had got mutated the said property in their favour on false representation alleging that the father of the revisionists had neither sold nor executed will or not sold the property to anyone before the Tehsildar however they had not applied for the mutation within the period of limitation. It is stated in the reply that impugned order passed by Ld. Trial Court is appreciable and justified. It is stated that plot in question was well surrounded by boundary wall and the same is demolished by the revisionists. It is stated in the reply that there is sufficient material to prosecute the revisionist and the statements corroborate that the plot was not a vacant plot. It is CR No:359/2017 Page 7 of 21 D.O.J.10.10.2018 Vijay Singh Vs. The State CR No:359/2017 stated that names of the revisionists came during investigation and Rameshwar had just informed him about the encroachment. It is stated that revision petition is liable to be dismissed.
7. I have heard Ld. Counsel for the revisionists and Ld. Addl. PP for the State.
8. Respondent no. 2 has not submitted arguments despite opportunities.
9. The contention of Ld. Counsel for the revisionists is that the property in question was allotted to Sh. Sumer Singh S/o Sh. Hukmi who is father of revisionists vide Land Distribution Certificate dated 18.11.1987 and as per the condition of the said certificate, the land in question could not have been transferred by Sh. Sumer Singh , father of the present revisionists. Ld. Counsel for the revisionist has further contended that the complainant has alleged that he had purchased the land in the year 1999 from the father of the revisionists through one Sumer Singh S/o Sh. Kehar Singh. Ld. Counsel for the revisionists has contended that the alleged transfer of land in favour of the complainant(respondent no. 2) is bad in the eyes of law and moreover the land in question was transferred in the name of the revisionists in the revenue records and the revisionists continue to be CR No:359/2017 Page 8 of 21 D.O.J.10.10.2018 Vijay Singh Vs. The State CR No:359/2017 in possession of the plot in question. Ld. Counsel for the revisionists has contended that the revisionists are the owners and in possession of the plot in question, hence the charge could not have been framed against the accused persons (revisionists herein). Ld. Counsel for the revisionists has contended that the revisionists have also filed a civil suit which is pending in the court of Ld. Civil Judge at Dwarka Courts and vide order dated 27.09.2016, Ld. Civil Judge has directed the parties to maintain status quo in respect of the property in question. Ld. Counsel for the revisionists has relied on the decision in Murlidhar Dayandeo Kesekar Vs. Vishwanath Pandu Barde & Anr, 1995 SCC Supl.(2) 549.
10. Ld. Addl. PP for the State has contended that after considering all the submissions of the accused persons and after going through the records, Ld. Trial Court has passed the speaking order dated 04.07.2017 wherein Ld. Trial Court has been pleased to hold that prima facie charge under Section 448 /34 IPC is made out against the accused persons. Ld. Addl. PP for the State has contended that for framing of charge under Section 448 IPC, the title of the land is material and at this stage it was only to be seen that the complainant was in possession of the property and the accused persons have committed CR No:359/2017 Page 9 of 21 D.O.J.10.10.2018 Vijay Singh Vs. The State CR No:359/2017 criminal tress-pass in the said property. Ld. Addl. PP for the State has contended that the decision Murlidhar Dayandeo Kesekar Vs. Vishwanath Pandu Barde & Anr (Supra) as relied by the accused persons is no help to them as it is in the civil proceedings it shall be determined that whether transfer of the property in favour of the complainant was valid or not.
11. The present case was registered on the basis of complaint of Sh. Lalit Kumar Betala wherein he has stated that he had purchased the plot no. 139 admeasuring 120Sq Yds in Khasra No. 7/3, Village Pochanpur, Pochanpur Extension, New Delhi vide registered documents dated 03.03.1999 from Sh. Sumer Singh S/o Sh. Kehar Singh who had purchased the same from the original allotee Sh. Sumer Singh S/o Sh. Hukmi and after the purchase, the physical possession of the said plot was also handed over to him and since then he was in physical possession of the plot. In his complaint dated 23.01.2016, the complainant(respondent no. 2 herein) alleged that on 23.01.2016 he was informed by Sh. Rameshwarji that one JCB Machine is working on his plot and somebody else is doing work on his plot without his consent and is trying to encroach his plot.
12. During the course of investigation, statement CR No:359/2017 Page 10 of 21 D.O.J.10.10.2018 Vijay Singh Vs. The State CR No:359/2017 under Section 161 of Cr.P.C. of Sh. Rameshwar was recorded wherein he stated that he has been visiting the concerned area to look after his plot and Sh. Lalit Kumar Betala who is his acquaintance also owns plot no. 139 in the same colony and Sh. Lalit Kumar Betala had instructed him to keep an eye on his plot also whenever he visits his property. In the statement under Section 161 Cr.P.C., Sh. Rameshwar stated that on 23.01.2016 when he was going to his plot, he found some JCB Machine working on the plot and he informed Sh. Lalit Kumar Betala.
13. The statements under Section 161 Cr.P.C. of Sh. Kishori Lal and Sh. Harish Chand who were doing work at Plot no. 139 on 25.09.2016 have been recorded and in their statements under Section 161 Cr.P.C., they stated that they are the Masons and on 25.09.2016 they were doing construction work on the said plot and at about 12.30 PM, Raj Singh, Jasraj Singh and two females came at the said plot and gave them beatings.
14. The accused persons have claimed that they are the owners and in possession of the plot in question and the alleged sale of the plot by their father Sh. Sumer Singh S/o Sh. Hukmi was not a valid sale. In support of their contention, the accused persons have relied on Land Distribution Certificate CR No:359/2017 Page 11 of 21 D.O.J.10.10.2018 Vijay Singh Vs. The State CR No:359/2017 dated 18.11.1987 and Khatoni.
15. It is to be noted that for seeking discharge , the accused persons have claimed that the alleged transfer of land / property in question by their father was not valid and they continue to be owners of the land/property in question and in order to support their contentions, the accused persons have placed reliance on Land Distribution Certificate dated 18.11.1987 and Khatoni. However, the perusal of the Trial Court Record and the impugned order shows that the accused persons had not placed before the Trial Court the documents i.e. Land Distribution Certificate dated 18.11.1987 and Khatoni which have been filed before this court. The accused persons have placed reliance on the documents i.e. Land Distribution Certificate dated 18.11.1987 and Khatoni for the first time before the revisional court. Although the accused persons had not filed the documents i.e. Land Distribution Certificate dated 18.11.1987 and Khatoni before the Trial Court at the time of consideration of charge but the question which requires to be determined is whether the court can look into the documents filed by the accused at the time of framing of charge and this question has been considered by Hon'ble Suprme Court in State of Orissa Vs. Debendra Nath Padhi, CR No:359/2017 Page 12 of 21 D.O.J.10.10.2018 Vijay Singh Vs. The State CR No:359/2017 MANU/SC/1010/2004 and the Hon'ble Supreme Court has been pleased to hold:
16. All the decisions, when they hold that there can only be limited evaluation of materials and documents on record and sifting of evidence to prima facie find out whether sufficient ground exists or not for the purpose of proceeding further with the trial, have so held with reference to materials and documents produced by the prosecution and not the accused. The decisions proceed on the basis of settled legal position that the material as produced by the prosecution alone is to be considered and not the one produced by the accused. The latter aspect relating to the accused though has not been specifically stated, yet it is implicit in the decisions. It seems to have not been specifically so stated as it was taken to be well settled proposition. This aspect, however, has been adverted to in State Anti-Corruption Bureau, Hyderabad and Another v. P. Suryaprakasam [1999 SCC (Crl.) 373] where considering the scope of Sections 239 and 240 of the Code it was held that at the time of framing of charge, what the trial court is required to, and can consider are only the police report referred to under Section 173 of the Code and the documents sent with it. The only right the accused has at that stage is of being heard and nothing beyond that (emphasis supplied)._____________________________ __________________________________________________ CR No:359/2017 Page 13 of 21 D.O.J.10.10.2018 Vijay Singh Vs. The State CR No:359/2017 XXXXXXX XXXXXXX
23. As a result of aforesaid discussion, in our view, clearly the law is that at the time of framing charge or taking cognizance the accused has no right to produce any material. Satish Mehra's case holding that the trial court has powers to consider even materials which accused may produce at the stage of Section 227 of the Code has not been correctly decided.
16. In the impugned order dated 04.07.2017, Ld. MM has been pleased to hold :
As per the case of the complainant, he had purchased the property from Sumer Singh S/o Sh. Kehar Singh on 03.03.1999 and was in possession since then. He specifically has named the accused persons in his complaint. As per the documents placed on record Sumer Singh S/o Hukmi had executed a registered will in favour of one Sumer Singh s/o Kehar Singh. Whether there is any valid transfer or not is immaterial as possession has to be seen for purposes of framing of notice. The documents so placed on record shows that complainant was in possession. Hence , notice u/s 448 IPC r/w sec 34 IPC is framed against all the accused persons to which they pleaded not guilty and claimed trial.
17. The question as raised by the accused persons CR No:359/2017 Page 14 of 21 D.O.J.10.10.2018 Vijay Singh Vs. The State CR No:359/2017 that the alleged sale of plot in question by their father Sh. Sumer Singh S/o Sh. Hukmi vide document dated 03.03.1999 is bad in the eyes of law and that they are the actual owner of the property in question and were in the possession of the property are the defences which are to be proved by the accused persons at appropriate stage of trial. In the circumstances, the decision in Murlidhar Dayandeo Kesekar Vs. Vishwanath Pandu Barde & Anr (Supra) as relied by the revisionists is of no help to them.
18. Section 240 Cr.P.C. reads as :
Framing of charge.- (1) if, upon such consideration, examination, if any, and hearing, the Magistrate is of opinion that there is ground for presuming that the accused has committed an offence triable under this Chapter, which such Magistrate is competent to try and which, in his opinion, could be adequately punished by him, he shall frame in writing a charge against the accused.
(2) The charge shall then be read and explained to the accused, and he shall be asked whether he pleads guilty of the offence charged or claims to be tried.
19. In CBI Vs. K. Narayana Rao, CA No. 1460 of CR No:359/2017 Page 15 of 21 D.O.J.10.10.2018 Vijay Singh Vs. The State CR No:359/2017 2012 , Hon'ble Supreme Court was pleased to hold:
12. While considering the very same provisions i.e. framing of charge and discharge of accused, again in Sajjan Kumar ( supra), this Court held thus:
-------------------------
-------------------------
-------------------------
21. On consideration of the authorities about the scope of Sections 227 and 228 of the Code, the following principles emerge:
(i) The Judge while considering the question of framing the charges under Section 227 CrPC has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out. The test to determine prima face case would depend upon the facts of each case.
(ii) Where the materials placed before the court disclose grave suspicion against the accused which has not been properly explained, the court will be fully justified in framing a charge and proceeding with the trial.
(iii) The court cannot act merely as a post office or a mouthpiece of the prosecution but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the court, any basis infirmities, etc. However, at this stage, there cannot be a roving enquiry into the pros and cons of the matter and weigh the evidence as if CR No:359/2017 Page 16 of 21 D.O.J.10.10.2018 Vijay Singh Vs. The State CR No:359/2017 he was conducting a trial.
(iv) If on the basis of the material on record, the court could form an opinion that the accused might have committed offence, it can frame the charge, though for conviction the conclusion is required to be proved beyond reasonable doubt that the accused has committed the offence.
(v) At the time of framing of the charges, the probative value of the material on record cannot be gone into but before framing a charge the court must apply its judicial mind on the material placed on record and must be satisfied that the commission of offence by the accused was possible.
(vi) At the stage of Sections 227 and 228, the court is required to evaluate the material and documents on record with a view to find out if the facts emerging therefrom taken at their face value disclose the existence of all the ingredients constituting the alleged offence. For this limited purpose, sift the evidence as it cannot be expected even at that initial stage to accept all that the prosecution states as gospel truth even if it is opposed to common sense or the broad probabilities of the case.
(vii) If two views are possible and one of them gives rise to suspicion only, as distinguished from grave suspicion, the trial Judge will be empowered to discharge the accused and at this stage, he is not to see whether the trial will end in conviction or acquittal.
CR No:359/2017 Page 17 of 21 D.O.J.10.10.2018 Vijay Singh Vs. The State CR No:359/2017
20. In the impugned order dated 04.07.2017, Ld. MM has considered all the material placed by the Investigating Agency and has arrived at the conclusion that Prima Facie charge for commission of offences under Section 448/34 IPC is made out against all the accused persons.
21. The scope of exercise of revisional jurisdiction has been considered by Hon'ble Supreme Court in Chandra Babu alias Moses v. State and others (2015) 8 SCC 774 and Sanjaysinh Ramrao Chavan v. Dattatray Gulabrao Phalke and others (2015) 3 SCC 123.
22. In Chandra Babu alias Moses v. State and others (2015) 8 SCC 774, the Hon'ble Supreme Court of India has been pleased to observe that:
11. First, we shall dwell upon the issue whether the High Court, in exercise of the revisional jurisdiction, should have adverted to the merits of the case in extenso. As the factual matrix would reveal, the learned Single Judge has dwelled upon in great detail on the statements of the witnesses to arrive at the conclusion that there are remarkable discrepancies with regard to the facts and there is nothing wrong with the investigation.
In fact, he has noted certain facts and deduced CR No:359/2017 Page 18 of 21 D.O.J.10.10.2018 Vijay Singh Vs. The State CR No:359/2017 certain conclusions, which, as we find, are beyond the exercise of revisional jurisdiction. It is well settled in law that inherent as well as revisional jurisdiction should be exercised cautiously. Normally, a revisional jurisdiction should be exercised on a question of law. However, when factual appreciation is involved, then it must find place in the class of cases resulting in a perverse finding. Basically, the power is required to be exercised so that justice is done and there is no abuse of power by the Court. [see Amit Kapoor v. Ramesh Chander (2012) 9 SCC 460].
23. In Sanjaysinh Ramrao Chavan v.
Dattatray Gulabrao Phalke and others (2015) 3 SCC 123, the Hon'ble Supreme Court of India has been pleased to observe that:
14. In the case before us, the learned Magistrate went through the entire records of the case, not limiting to the report filed by the police and has passed a reasoned order holding that it is not a fit case to take cognizance for the purpose of issuing process to the appellant. 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 CR No:359/2017 Page 19 of 21 D.O.J.10.10.2018 Vijay Singh Vs. The State CR No:359/2017 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. Revisional power of the court under Sections 397 to 401 of Cr.PC is not to be equated with that of 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.
24. In Chandra Babu alias Moses v. State and others (2015) 8 SCC 774 and Sanjaysinh Ramrao Chavan v. Dattatray Gulabrao Phalke and others (2015) 3 SCC 123, the Hon'ble Supreme Court has been pleased to hold that revisional jurisdiction should be exercised cautiously and normally, a revisional jurisdiction should be exercised on a question of law and the finding of the court is not to be interfered unless the same is shown to be CR No:359/2017 Page 20 of 21 D.O.J.10.10.2018 Vijay Singh Vs. The State CR No:359/2017 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.
25. Looking at the nature of allegations as made in the charge sheet and the documents filed before Ld. Trial Court and in view of aforesaid pronouncements, I am of the view that judicial discretion has been exercised by Ld. Trial Court properly and in accordance with provisions of law. I find no infirmity in the impugned order dated 04.07.2017. The revision petition is devoid of merits and same is dismissed.
26. TCR be sent back to the court concerned along with copy of this judgment. Revision file be consigned to record room.
Announced in the open ( HARISH DUDANI) Court on 10.10.2018 Special Judge (PC Act) CBI-I Dwarka Courts, New Delhi.
Digitally signed by HARISH HARISH DUDANI
DUDANI Date: 2018.10.10
15:57:26 +0530
CR No:359/2017 Page 21 of 21 D.O.J.10.10.2018