Delhi District Court
Neeru Mehra vs Astha Ghai Walia on 7 October, 2024
IN THE COURT OF MS. SADHIKA JALAN,
ADDITIONAL SESSIONS JUDGE (FTSC)(RC),
DWARKA COURTS, SOUTH-WEST DISTRICT, NEW DELHI.
In the matter of:
CNR No. DLSW01-010629-2023
Criminal Appeal No. 607/2023
(Under section 200 Cr. PC.)
CC No. 42015/2019
Police Station Vikas Puri
Neeru Mehra,
Resident of 28/8, Third Floor,
Punjabi Bagh Extension,
New Delhi - 110 046
... Appellant
Versus
1. Astha Ghai Walia,
Principal, Happy Model School,
B/2 Block, Janakpuri,
New Delhi - 110 058.
Also at--
C/o Bhavneet Walia,
C-3/145, First, Floor,
Janakpuri West,
Delhi-110 058.
2. Bhavneet Walia
C-3/145, First, Floor,
Janakpuri West,
Delhi-110 058.
....Respondents
Neeru Mehra v. Astha Ghai Walia & Anr.
CA No. 607/2023, Police Station Vikas Puri Page No. 1 of 11
Date of Institution of Revision : 03.11.2023
Date on which Order reserved : 27.08.2024
Date of Order : 07.10.2024
ORDER
1. The present appeal is directed under Section 386 Code of Criminal Procedure (hereinafter referred to as CrPC) against the impugned order dated 05.10.2023 passed by learned Metropolitan Magistrate (NI Act)- 05, South-West District, Dwarka Courts, New Delhi in Complaint Case bearing No.42015/2019 under section 200 CrPC, in case titled as 'Neeru Mehra v. Astha Ghai Walia' whereby the learned Trial Court has dismissed the complaint filed by the appellant/complainant.
2. Before proceeding further, during the course of arguments, it is has been submitted that the present matter has wrongly been filed as an appeal and it be treated as a revision. The issue does not go to the merits of the case, the present petition is thus treated as a revision petition.
3. Brief facts as noted by learned Trial Court are that on 11.09.2019 at about 6:10 pm, respondent no.1/proposed accused no. 1 along with other accused persons had conspired to cut the lock of the main door of the house. The background of the case is that the proposed accused no. 1 Ms. Astha Ghai Walia is the owner of the ground floor of property bearing Neeru Mehra v. Astha Ghai Walia & Anr.
CA No. 607/2023, Police Station Vikas Puri Page No. 2 of 11 no. M-7, Vikas Puri, New Delhi 110018 and the complainant is the owner of the first floor of the said property and second floor of the said property is jointly owned by the proposed accused no.1 and complainant. It has been further stated that the complainant is not residing at the said address and residing at Janak Puri and she had kept one servant namely Ravi on the ground floor of the said property of Vikas Puri.
4. Complainant and proposed accused no.1 are stated to be real sisters and the said property is stated to have been received by way of Will made in their favour by their mother.
5. It has been alleged that proposed accused no. 1 along with other proposed accused persons had tried to cut the lock installed at the main door of the common entrance of the said house. It has been further alleged by the complainant that they had tried to commit lurking house breaking in the property and tried to criminally intimidate the complainant and her husband. In the complaint, it has further been stated that they had manhandled the husband of the complainant who had opposed the proposed accused persons in committing the act.
6. Respondents were noticed in the present matter. Trial Court Record was also summoned.
7. Arguments on behalf of the revisionist and respondents were heard at length.
Neeru Mehra v. Astha Ghai Walia & Anr.
CA No. 607/2023, Police Station Vikas Puri Page No. 3 of 11
8. It has been argued by the Counsel for the revisionist that the learned trial Court has passed the order in a mechanical manner. The learned Counsel for the revisionist argued that the respondents residing at Janakpuri, and, dozens of goons committed the offences of cutting the lock installed at the main gate, trespassing, criminally intimidating the complainant and her husband and mishandled her husband as is evident from the complainant dated 05.10.2019, statements of the CW-1 and CW-2 dated 10.03.2022, photographs and CCTV footage. These evidences however are stated to not have been considered by the learned Trial Court. It is further stated that the learned Trial Court has misconstrued the facts and the statement of CW-1 and CW-2. It is stated that there is no inconsistency in their statements. It is submitted that the criminal intimidation was also mentioned in the earlier complaint to the police and can be inferred from the complaint, if the first paragraph is of the said complaint is referred to.
9. Learned Counsels for the respondents has argued that the order passed by the learned Trial Court is well reasoned and does not require any further intervention.
10. The order in challenge before this Court is a summoning order in a complaint case. Before proceeding further, the legal position qua summoning is discussed. It has been held in a catena of judgments that a Neeru Mehra v. Astha Ghai Walia & Anr.
CA No. 607/2023, Police Station Vikas Puri Page No. 4 of 11 summoning order does not require the Court to pass detailed orders however it should reflect the conscious examination of facts.
11. The Supreme Court in a recent judgment in Deepak Gaba v. State of U.P., (2023) 3 SCC 423 held as follows--
" ...30. Even though at the stage of issuing process to the accused the Magistrate is not required to record detailed reasons, there should be adequate evidence on record to set the criminal proceedings into motion. The requirement of Section 204 of the Code is that the Magistrate should carefully scrutinise the evidence brought on record. He/She may even put questions to complainant and his/her witnesses when examined under Section 200 of the Code to elicit answers to find out the truth about the allegations. Only upon being satisfied that there is sufficient ground for summoning the accused to stand the trial, summons should be issued.
31. Summoning order is to be passed when the complainant discloses the offence, and when there is material that supports and constitutes essential ingredients of the offence. It should not be passed lightly or as a matter of course. When the violation of law alleged is clearly debatable and doubtful, either on account of paucity and lack of clarity of facts, or on application of law to the facts, the Magistrate must ensure clarification of the ambiguities. Summoning without appreciation of the legal provisions and their application to the facts may result in an innocent being summoned to stand the prosecution/trial. Initiation of prosecution and summoning of the accused to stand trial, apart from monetary loss, sacrifice of time, and effort to prepare a defence, also causes humiliation and disrepute in the society. It results in anxiety of uncertain times." (emphasis supplied)
12. The Supreme Court in Mehmood Ul Rehman v. Khazir Mohammad Tunda, (2015) 12 SCC 420 held as follows--
"21. Under Section 190(1)(b) CrPC, the Magistrate has the advantage of a police report and under Section 190(1)(c) CrPC, he has the information or knowledge of commission of an offence. But under Section 190(1)(a) CrPC, he has only a complaint before him. The Code hence specifies that "a complaint of facts which constitute such offence". Therefore, if the complaint, on the face of it, does not disclose the commission of any offence, the Magistrate shall not take cognizance under Section 190(1)(a) CrPC. The complaint is simply to be rejected.
Neeru Mehra v. Astha Ghai Walia & Anr.
CA No. 607/2023, Police Station Vikas Puri Page No. 5 of 11
22. The steps taken by the Magistrate under Section 190(1)(a) CrPC followed by Section 204 CrPC should reflect that the Magistrate has applied his mind to the facts and the statements and he is satisfied that there is ground for proceeding further in the matter by asking the person against whom the violation of law is alleged, to appear before the court. The satisfaction on the ground for proceeding would mean that the facts alleged in the complaint would constitute an offence, and when considered along with the statements recorded, would, prima facie, make the accused answerable before the court. No doubt, no formal order or a speaking order is required to be passed at that stage. The Code of Criminal Procedure requires speaking order to be passed under Section 203 CrPC when the complaint is dismissed and that too the reasons need to be stated only briefly. In other words, the Magistrate is not to act as a post office in taking cognizance of each and every complaint filed before him and issue process as a matter of course. There must be sufficient indication in the order passed by the Magistrate that he is satisfied that the allegations in the complaint constitute an offence and when considered along with the statements recorded and the result of inquiry or report of investigation under Section 202 CrPC, if any, the accused is answerable before the criminal court, there is ground for proceeding against the accused under Section 204 CrPC, by issuing process for appearance. The application of mind is best demonstrated by disclosure of mind on the satisfaction. If there is no such indication in a case where the Magistrate proceeds under Sections 190/204 CrPC, the High Court under Section 482 CrPC is bound to invoke its inherent power in order to prevent abuse of the power of the criminal court. To be called to appear before the criminal court as an accused is serious matter affecting one's dignity, self-respect and image in society. Hence, the process of criminal court shall not be made a weapon of harassment.
23. Having gone through the order passed by the Magistrate, we are satisfied that there is no indication on the application of mind by the learned Magistrate in taking cognizance and issuing process to the appellants. The contention that the application of mind has to be inferred cannot be appreciated. The further contention that without application of mind, the process will not be issued cannot also be appreciated. Though no formal or speaking or reasoned orders are required at the stage of Sections 190/204 CrPC, there must be sufficient indication on the application of mind by the Magistrate to the facts constituting commission of an offence and the statements recorded under Section 200 CrPC so as to proceed against the offender. No doubt, the High Court is right in holding that the veracity of the allegations is a question of evidence. The question is not about veracity of the allegations, but whether the respondents are answerable at all before the criminal court. There is no indication in that regard in the order passed by the learned Magistrate." (emphasis supplied) Neeru Mehra v. Astha Ghai Walia & Anr.
CA No. 607/2023, Police Station Vikas Puri Page No. 6 of 11
13. In the instant matter, there are two primary contentions of the appellant, first that the respondents had committed lurking house trespass or house breaking after preparation for hurt, assault or wrongful restraint. In the instant matter, admittedly both the complainant/revisionist and respondent no. 1 are real sisters and are both co-owners of the property.
14. In the instance matter, as rightly noted by the learned Trial Court, it cannot be argued that an owner to enter his own property would not be allowed to break open the locks. A property jointly owned, cannot have a lock to which all owners do not have access. A person then wanting to enter his own property cannot be saddled with a criminal intent.
15. The CCTV footage as well as the photographs have been seen. The persons can be seen removing the lock and leaving. There is no evidence there in of pushing or shoving the revisionist or her husband. Infact, the revisionist can be seen in the CCTV footage, as having gone down from her balcony at the time of the incident to where all the respondents were standing and can be seen making a video on her phone.
16. The ingredients of house trespass are not made out in the initial matter.
No fault can be found with the reasoning of the learned Trial Court in this regard.
17. It is further contended, that the complainant and her husband have both stated in evidence that they were threatened by the respondents. CW-1 Neeru Mehra v. Astha Ghai Walia & Anr.
CA No. 607/2023, Police Station Vikas Puri Page No. 7 of 11 stated in her evidence, that one person lucky called for the carpenter and told him to give him the cutter saying that he would first kill CW-2 and then cut the lock. She stated that she ran downstairs upon hearing this threat. She further stated that Lucky pushed her husband CW-2, who fell to the ground. She further stated that she was trying to resist the goons from cutting the lock, when one of them threatened her saying that "tere ko do thapad marunga aur yahi jinda gad dunga." She stated they called on 100 number, but the police came at around 7 PM after the complete incident had happened.
18. CW-2 further stated that Lucky threw him to the ground and then asked the carpenter to give him the cutter to kill him. He also deposed that the respondents threatened them with dire consequences if they continued living there. He stated that they also put two locks on the front gate so that it could not be closed and they had to live in the premises without any locks.
19. The essential ingredients to establish an offence under Section 506 IPC are as follows--
1. That the accused threatened some person.
2. That such threat consisted of some injury to his person, reputation or property (or of a person in whom the person is interested).
3. That this was done with the intention
a) to cause alarm; or Neeru Mehra v. Astha Ghai Walia & Anr.
CA No. 607/2023, Police Station Vikas Puri Page No. 8 of 11
b) to cause that person to do any act which he is not legally bound to do as the means of avoiding the execution of such threat; or
c) to cause that person to commit to do any act which that person is legally entitled to do on the means of avoiding execution of such threat.
20. Therefore, in order to attract the ingredients of Section 506 IPC, it is essential for the offence of criminal intimidation that it must come on record that the intention of the accused must be to cause alarm to the victim. Mere expression of words, without any intention to cause alarm would not suffice. To constitute an offence under Section 506 IPC, it must be shown that the person actually threatened another with injury to his person, reputation and property or to the person or reputation of anyone in who the person is interested, with the intention to cause alarm.
21. In the instant matter, it is stated that after the incident on 11.09.2019, the first action taken by the complainant was to file a police complaint on 12.09.2019. In the said complaint, there is no mention made of the threat extended to the husband of the revisionist. Had alarm been caused to the revisionist or her husband, it would have surely found mention in the complaint. The only averments in the complaint to the police are that they started hooliganism despite their resistance. The offence mentioned therein that have been committed are trespassing and house breaking. No mention was made of the alleged threats or the alarm caused due to that. Neeru Mehra v. Astha Ghai Walia & Anr.
CA No. 607/2023, Police Station Vikas Puri Page No. 9 of 11
22. As stated above, to constitute an offence under Section 506 IPC, it must be shown that the person actually threatened another with injury to his person, reputation and property, with the intention to cause alarm.
23. Further, in the complaint filed in the Court, there are inconsistences in the versions of CW-1 and CW-2. Also, in the initial complaint, it was stated that one lucky pushed the husband of the revisionist to corner to prevent him from reaching the door. Thereafter other respondents started to manhandle him. However, this is not the version given by CW-1 or CW-2.
24. There are several inconsistencies and improvements in the version of the complainant. A summoning order cannot be passed lightly or as a matter of course. In the instant matter, the order clearly reflects that the Magistrate has applied his mind to the facts and the statements and is satisfied that there is no ground for proceeding further and has therefore dismissed the present complaint.
25. In the facts and circumstances as discussed, the order passed by the learned Trial Court is found to be in consonance with the scheme postulated in CrPC. There is no illegality, infirmity or impropriety in the impugned order. There is nothing to show that the judicial power was applied in an arbitrary manner. Revision Petition is found to be without merit and is hereby dismissed.
Neeru Mehra v. Astha Ghai Walia & Anr.
CA No. 607/2023, Police Station Vikas Puri Page No. 10 of 11
26. A copy of this order be given to Revisionist and be also sent to the learned Trial Court along with the trial court record.
27. File be consigned to Record Room after due compliance. Announced in Open Court on this 07th day of October, 2024.
(SADHIKA JALAN) Addl. Sessions Judge (FTSC) (RC) South West District, Dwarka Court New Delhi, 07.10.2024 Neeru Mehra v. Astha Ghai Walia & Anr.
CA No. 607/2023, Police Station Vikas Puri Page No. 11 of 11