Delhi District Court
Suraj Bhan vs State on 27 February, 2021
IN THE COURT OF SH. JAGDISH KUMAR
ADDITIONAL SESSIONS JUDGE-FAST TRACE COURT (NORTH)
ROHINI COURTS DELHI
Criminal Revision No. 73/2020
DLNT01-005192-2020
1.Suraj Bhan
S/O Late Sh Kehar Singh
2.Smt Sushila
W/O Suraj Bhan
3.Sandeep
S/O Suraj Bhan
4.Sanjeet
S/O Suraj Bhan
5.Smt Manju Devi
W/O Sanjeet
All R/O Village Ramjanpur,
Delhi-110036
.... Revisionist.
Versus
1. State
2. Smt Santosh
W/O Late Sh Samay Singh
3. Sh Sanjeet
S/O Late Sh Samay Singh
4. Sh Vishal
S/O Late Sh Samay Singh
5. Sh Chanderhas
S/O Late Sh Kehar Singh
6. Smt Kanta
W/O Sh Chanderhas
7. Sh Vikas
S/O Sh Chanderhas
Suraj Bhan Vs State & ors 1 /8
8.Sh Malkhan
Through his LRs
i. Mrs Saroj Daughter
ii. Mrs Kavita Daughter
iii. Mrs Neema Daughter
iv. Mrs Munni Daughter
9. Sh Vedpal
Through LR s
i. Master Rahul Son
ii. Rashi Daughter
10. Smt Renu
W/O Late Sh Vedpal
All R/O Village Ramjanpur,
Delhi-110036
...Respondent.
Appearance(s): Sh. Bijendra Kr Gautam Ld Cl. for the revisionist.
Sh V.K Negi Ld Addl PP for State R.1
Sh. Sunil Chauhan, Ld. Cl for R.2 to R.7
Date of Institution : 28.08.2020
Date of Assignment : 28.08.2020
Date of Arguments : 27.02.2021
Date of Judgment : 27.02.2021
JUDGMENT
1. Brief facts of the case are the revisionists and respondent No.2 to 10 are related to each other being the legal heirs of Late Sh Kehar Singh and they are the residents of village Mohmadpur Ramzanpur,Delhi. Late Sh Kehar Singh expired on 04.12.2982 leaving behind Sh Malkhan Singh, Chanderhas, Samay Singh and Suraj Bhan as his legal hairs. The revisionist No.1 was appointed as Teacher and pursuant to which he mostly resided outside the village Mohmadpur Ramzanpur,Delhi. Taking advantage thereof the brothers of Suraj Bhan Vs State & ors 2 /8 revisionist No.1 in collusion with each other had secure mutation in their name in the revenue record regarding land in place of late Sh Kehar Singh to the exclusion of revisionist No.1. Upon this the revisionist No.1 has filed an application before the Ld Tehsildar, Narela Delhi seeking rectification/modification in the mutation order dt 20.02.1983. And vide order dt 21.07.2010 the name of revisionist No.1 was directed to be recorded in the revenue record being the son of Late Sh Khehar Singh. Aggrieved upon the abovesaid order the respondents No.2 to 10 have filed a appeal bearing No.206/2010 before the Hon'ble Finance Commissioner, Delhi and have also filed a suit for injunction bearing No.61/12 before the Ld Senior Civil Judge,Delhi.
2. Vide DD No.25A dated 15.06.2013 P.S Alipur Delhi a Kalandra U/S 145 Cr P C was filed before the Ld Trial Court on the complaint of Vishal that revisionist No.1 has got recorded mutation by his name fraudulently. And when respondents No.2 tdo 10 goes for cultivations revisionist No.1 made call at 100 number to Police. It is alleged in the Kalandara that in future any cognizable offence may be committed. On the basis of Kalandara the proceedings U/S 145 Cr PC were initiated by the Ld Trial Court vide order dated 16.07.2013 and notice was issued to the revisionists.
3. In the present revision the revisionists have challenged the proceeding before Ld Trial Court mainly on two grounds, firstly, that the proceedings before the Ld Trial Court are against the law as no order U/S 145(1) Cr P C was passed by the Ld Trial Court before proceeding on the Kalandara, being filed U/S 145 Cr P C. Secondly, the revisionists sought set aside of order dated 26.08.2020 whereby the application for summoning of the witnesses of the revisionists Suraj Bhan Vs State & ors 3 /8 was rejected by the Ld SDM and case was fixed for Final Arguments on 28.08.2020.
4. I have heard the Ld. Counsel for revisionists as well as Ld. Counsel for the respondent No.2 to 10 through Video conferencing and have also gone through the written submission being filed by the revisionists and Ld Counsel for the respondents No.2 to 10.Though the revisionist have challenged the proceeding in the petition also on the ground that their application for summoning of the witnesses was dismissed without considering the facts and circumstances but they have not argued on this point before this Court. It is argued that without passing an order U/S 145(1) Cr PC the Ld Trial Court could not had proceed further and hence proceedings are bad from abi-intio.
5. On the other hand Ld Counsel for respondent No.2 to 10 has argued that application for summoning of witness is not a revisionable order in view of Section 397(2) Cr PC. It is further argued that Ld Trial Court can pass order U/S 145(1) Cr P C even during the proceedings of the case which may relate back to the institution of the proceedings U/S 145 Cr P C. It is prayed that revision petition may be dismissed.
6. Before further adverting to the facts of the case I would like to mention the provision of Section 145 Cr P.C and precedent relating to Section 145 Cr P C . The intention of the Section is to provide a speedy remedy for the prevention of a breach of the peace arising out of dispute in respect of immovable property. Before making a preliminary order, the enquiry, which is contemplated, may not be detailed. The enquiry contemplated is for purpose of satisfaction of the Magistrate, which may be either from a police report or other Suraj Bhan Vs State & ors 4 /8 information suggesting the necessity for taking action. The purpose of Section 145 and allied provisions is to prevent the immediately apprehended breach of the peace which purpose in all likelihood, may be defeated by a prolonged enquiry extending over several hearing. If for any reason the enquiry is delayed and a preliminary order is not passed, the whole object of this section may be frustrated. In Thamaraiammal V. Executive Magistrate, 2007 Cr L J 1885(Mad) it has categorically held that the mandatory requirements of s.145(1) Cr P.C is the passing of preliminary order under S. 145(1) Cr P C and then issuing of notice to the opposite party. So,non-passing of preliminary order vitiates the entire proceedings. Merely sending of notice to the party is not itself sufficient to comply the mandatory requirements of S.145(1) Cr P C.
7. The law delivered by Hon'ble Punjab & Haryana High Court in case titled Faqir Chand Sultani Ram & Ors Vs Bhana Ram Mansa Ram & Ors 1957 STPL 1178 P&H is also relevant where it is held that " It is the only preliminary order Under Sub Section (1) is passed that further proceeding can be initiated. The Magistrate,however has to state in the preliminary order the grounds for his being satisfied as to the likelihood of a breach of the peace. The provision as to stating the grounds of the Magistrate being satisfied as to there being an apprehension of breach of the peace is mandatory. Despite the fact that Section 145 is adapted to cases of urgency it is not possible to lay down any hard and fast rule as to the sufficiency of Suraj Bhan Vs State & ors 5 /8 the material which has to be produced before a Magistrate for his satisfaction. "
8. There is one another fact in the present case that civil litigation is pending between the parties. Though filing of a civil suit ipso facto does not preclude the jurisdiction of Executive Magistrate to initiate proceedings U/S 145 Cr P C.But the Hon'ble Supreme Court of India in case titled Ram Sumer Puri Vs State of U.P. AIR 1985 SC 472 had quashed proceedings U/S 145 Cr PC in respect of the possession of the same property when civil suit over the same was pending. So in the light of the proposition and case law, let us discuss the fact of the present case.
9. So far as not allowing the application of the revisionists for summoning of witness is concerned. Though, Ld Counsel for the revisionists has not pressed or argued on this aspect during the course of arguments and has also not raised the issue in his written submissions. But I would like to mention here the judgments of Hon'ble High Court of Delhi in case titled Neelam Mahajan & Ors Vs State & ors decided on 08.04.2016, Varun Aggarwal Vs State of NCT of Delhi & Ors Crl MC No.2424/2017, and the Judgment titled Sethuraman Vs Rajamanickam (2009) 5 SCC 153 of Hon'ble Supreme Court. In the judgments the Hon'ble Superior Court have held that non-summoning of the witnesses is interlocutory order. Accordingly, the order challenged for not summoning of witness is hit by Section 397 (2) Cr P C.
10. So far as not passing of order U/S 145(1) Cr P C is concerned, here in the present case on perusal of Trial Court order it reveals that Ld Trial Court has not passed the order U/S 145 (1) Cr PC Suraj Bhan Vs State & ors 6 /8 while proceeded further. As per the judgment ( Supra) the order U/S 145(1) Cr P C has to be passed by the Ld Trial Court before further proceeding U/S 145 Cr P C. So the proceedings initiated by Ld Trial Court is not sustainable in eyes of the law because it has to pass an order U/S 145(1) Cr PC.
11. So far as the submission of Ld Counsel for Respondent No.2 to 10 that the order U/S 145(1) Cr P C can be passed at any stage. I am not agree with the submissions of Ld Counsel for the respondent No. 2 to 10. The simple reason that the subsequent order can not be passed to ascertain that on that day ( day of initiation of proceed U/S 145 Cr P C) there was apprehension of breach of peace. Because the breach of peace qua the property has to be related to the date on which the proceeding U/S 145 Cr P C has to be initiated. The subsequent order being passed on a subsequent date ( for example for today) cannot relate back to the date of institution of proceeding. Particularly in view of the fact that police was having apprehension that a cognizable offence may be committed in future, as mentioned in the Kalandara itself. In that circumstances the order U/S 145(1) Cr P C was necessitated to the satisfaction of Ld Trial Court regarding breach of peace on that day.
12. Here in the present case admittedly there are civil litigations are pending before the various authorities including the Courts. The respondents No.2 to 10 have also filed suit for injunction against the revisionists praying that they should not be dispossessed from the property in dispute of present proceedings. It is worth mentioning here that revisionists have not pressed the application under order 39 rule 1 and 2 Cr PC in Suit No.21/2012 which was filed prior to present proceedings. Accordingly the proceedings pending before the Ld Trial Suraj Bhan Vs State & ors 7 /8 Court U/S 145 Cr P C are bad in law.
13. In view of the above discussion , the revision petition of the revisionist is partly allowed.
14. Let the copy of this order be sent to Ld. Trial Court/Successor Court with TCR.
15. Revision records be consigned to record room after due completion.
ANNOUNCED IN THE OPEN (Jagdish Kumar)
On 27 th
Feb, 2021 ASJ: Special FTC (North)
Rohini Courts: Delhi
Suraj Bhan Vs State & ors 8 /8
Suraj Bhan Vs State & ors 9 /8