Delhi District Court
Narinder Sethi vs The State on 5 February, 2018
1
IN THE COURT OF SHRI RAJESH KUMAR SINGH
SPECIAL JUDGE-NDPS/ASJ (SOUTH)
SAKET COURTS COMPLEX, NEW DELHI
Crl. Rev. No. 227/2017
CNR No.- DLST01-004637-2017
Narinder Sethi ..........Revisionist
s/o Late Sh. H. C. Sethi
R/o 11/149, Malviya Nagar
New Delhi - 110017
versus
The State ..........Respondent
Govt. of NCT of Delhi
Crl. Rev. No. 228/2017
CNR No. DLST01-004641-2017
Bhartendu Rai ..........Revisionist no. 1
S/O Late Ram Chander Rai
r/o Flat near Sant Niwas
Chhatarpur, new Delhi - 74
Sh. Mukesh Sharma ..........Revisionist no. 2
s/o Late Rajpal Sharma
r/o Room No. 12, Sant Niwas
Chhatarpur, new Delhi - 74
Narinder Sethi vs State (CR NO. 227/2017) page no. 1 of 26
Bharatendu Rai etc. vs State (CR No. 228/2017)
Kamal Kishore Bhatia & ors. Vs State (CR NO. 233/2017)
2
Laxman Dass ..........Revisionist no. 3
s/o Late Sadhu Ram
r/o 890/8, Mehrauli Sarai
Mehrauli, New Delhi-30
Vishnu Kant ..........Revisionist no. 4
s/o HariHar Prasad
r/o Room No. 103,
Chhatarpur, New Delhi - 74
Brameshwar Ram ..........Revisionist no. 5
s/o late D Ram
r/o Ayurvedic Dispensary Bhawan
Chhatarpur Mandir, new Delhi - 74
versus
The State ..........Respondent
Govt. of NCT of Delhi
Crl. Rev. No. 233/2017
CNR No. DLST01-004740-2017
Kamal Kishore Bhatia ..........Revisionist no. 1
S/O Late F. C. Bhatia
r/o Shivani Vidya Niketan
Chhatarpur, New Delhi - 74
Ram Kishan ..........Revisionist no. 2
s/o late Khacheru Ram
Narinder Sethi vs State (CR NO. 227/2017) page no. 2 of 26
Bharatendu Rai etc. vs State (CR No. 228/2017)
Kamal Kishore Bhatia & ors. Vs State (CR NO. 233/2017)
3
r/o 113, Chhatarpur,
New Delhi - 74
Sukhdev Khattar ..........Revisionist no. 3
s/o Laxman Dass
r/o 890/8, Mehrauli Sarai
Mehrauli, New Delhi - 30
versus
The State ..........Respondent
Govt. of NCT of Delhi
FIR No. 828/1998
PS-Mehrauli
U/s. 147/149/365/323/341/
342/385/452/506 IPC
Date of institution : 04.07.2018 (CR No. 227/2017 &
228/2017)
: 06.07.2017 (CR No. 233/2017)
Date of reserving judgment : 25.01.2018
Date of pronouncement : 05.02.2018
ORDER
1. By this common order I shall decide the three revision petitions filed by the revisionists against impugned order dated 17.05.2017 and 03.06.2017 passed by the Court of Ld. MM-05 Narinder Sethi vs State (CR NO. 227/2017) page no. 3 of 26 Bharatendu Rai etc. vs State (CR No. 228/2017) Kamal Kishore Bhatia & ors. Vs State (CR NO. 233/2017) 4 (South) in FIR No. 828/1998, PS-Mehrauli, titled State vs. Bhartendu Rai & ors. By the impugned order dated 17.05.2017, Ld. MM ordered that charge is liable to be framed against the revisionist and the other co-accused u/s. 147/149/365/323/341/342/385/452/506 IPC. By the impugned order dated 03.06.2017, the charge was drawn in terms of order dated 17.05.2017.
Brief facts :
2.1 On 04.07.2008, a complaint was received by PS-
Ambedkar Nagar from Sh. Adya Katyayni Shakti Peeth Mandir, Chatarpur Karamchari Welfare Association. The complaint was signed by Sh. Anjani Kumar Mishra as Secretary of the association. In nut shell the allegation was that on the said day, the complainant Sh. Anjani Kumar Mishra and some other persons, who were working in the Mandir in different capacities, were forcibly removed from the Mandir. They were made to sign blank papers. Their documents and other valuable articles were robbed. They were threatened that they would be killed. After being abducted from the Mandir premises, they were dropped at different places. 2.2 Matter was investigated and police prepared a charge sheet for offences u/s. 147/149/448/120B IPC. The charge sheet was submitted for scrutiny and objections were raised by the Ld. Prosecutor. On examination of the matter again, police filed the closure report dated 29.11.2000. Vide order dated 24.08.2001, Ld. Narinder Sethi vs State (CR NO. 227/2017) page no. 4 of 26 Bharatendu Rai etc. vs State (CR No. 228/2017) Kamal Kishore Bhatia & ors. Vs State (CR NO. 233/2017) 5 MM declined to accept the closure report and summoned the accused persons u/s. 147/149/365/506/323/448/120B IPC. The accused Bhartendu Rai filed CRL. Misc. (M) No. 3507/01 in Hon'ble High Court against the order dated 24.08.2001. The petition was disposed by Hon'ble High Court vide order dated 19.10.2001. Hon'ble High Court observed that from the order dated 24.08.2001, it was not clear as to who had been summoned and on what basis. Ld. MM was directed reapply his mind to the material on record. 2.3 In compliance of order dated 19.10.2001 passed by Hon'ble High Court, Ld. Trial Court considered the matter again and passed order dated 18.01.2003. Ld. Trial Court examined the allegations in respect of each accused individually and summoned the accused Mr. Shashi Bhushan Sharma, Mr. Narinder Sethi, Mr. Ram Kishan, Mr. Tilak Raj, Mr. Kamal Kishor, Mr. Sukhdev, Mr. G.P. Sharma, Mr. Mukesh Sharma, Mr. Laxman Das, Mr. Bhartendu Rai, Mr. Vishnu Kant and Mr. Brameshwar Ram for offence u/s. 147/149/ 365/356/323/341/342/385/386/448/506 IPC. The accused Bhartendu Rai challenged order dated 18.01.2003 by filing Crl. M.C. 786/2003 before Hon'ble High Court, which was dismissed vide order dated 23.07.2013. Thereafter, the successor to the Ld. Trial Court ordered for framing of charge by the impugned order as already mentioned above.
Narinder Sethi vs State (CR NO. 227/2017) page no. 5 of 26 Bharatendu Rai etc. vs State (CR No. 228/2017) Kamal Kishore Bhatia & ors. Vs State (CR NO. 233/2017) 6 Grounds Taken by the Petitioners :
3.1 The petitioner Narinder Sethi (C.R. No. 227/17) has mentioned the grounds for challenging the impugned orders under sub-para A to P in para 8 of the petition. The petitioners Bhartendu Rai and Others (C.R. No. 228/17) and the petitioner Kamal Kishore Bhatia and Others (C.R. No. 233/17) have mentioned the grounds in sub-para A to Q of para 8 of their petition. The grounds taken by them were also same as the grounds taken by the petitioner Narinder Sethi. The grounds may be summarized as follows :
3.2 The managing committee of the Mandir had published notice regarding termination of the services of the victims wherein it was also mentioned that they were barred from entering the temple premises. During investigation, police recorded the statements of independent witnesses which showed that the victims had left the temple voluntarily on termination of their services. Ld. MM did not consider those statements and relied upon the vague and omnibus statements of the victims in which there were material improvements. There was no material on record to create grave suspicion against the accused persons. Ld. MM relied upon the contents of the summoning order without actually evaluating the material on record. Ld. MM failed to appreciate that charge should not be framed where two views are Narinder Sethi vs State (CR NO. 227/2017) page no. 6 of 26 Bharatendu Rai etc. vs State (CR No. 228/2017) Kamal Kishore Bhatia & ors. Vs State (CR NO. 233/2017) 7 equally possible. There was no material on record for framing the charges u/s. 148/149/323/341/342/365/385/452 and 506 IPC.
Arguments of Ld. Counsel for the petitioner Mr. Narendra Sethi :
4.1 Mr. Ramesh Gupta, Ld. Senior advocate appeared for the petitioner. He argued that Ld. MM did not actually go through the statements of the witnesses while forming the opinion to frame the charge and he copied the observations made by his Ld. Predecessor in the summoning order. At page 6 of the impugned order dated 17.05.2017, Ld. Trial Court observed that PWs Anjani Kumar, Sachin Tiwari, Kaptan Singh, Ram Milan, Yogender Kumar and Naresh Kumar stated that the accused Narinder Sethi was also present at the spot and he too played active role in evicting the victims.
4.2 Statement of the complainant/victim Sh. Anjani Kumar Mishra was recorded u/s. 161 Cr.P.C. on 21.12.1998. In his statement, he did not name the petitioner Sh. Narinder Sethi as one of the persons, who allegedly forcibly took him away on the day of the alleged incident. In later part of his statement, he stated that the accused Narinder Sethi and others came to the PS to catch him. The statement of Sh. Anjani Kumar Mishra shows that the accused Narinder Sethi was not present at time of the alleged incident. In his statement u/s 161 Cr.P.C., the victim Sachin Narinder Sethi vs State (CR NO. 227/2017) page no. 7 of 26 Bharatendu Rai etc. vs State (CR No. 228/2017) Kamal Kishore Bhatia & ors. Vs State (CR NO. 233/2017) 8 Tiwari did not name accused Narinder Sethi. The victim Kaptan Singh also did not say that he had seen the accused Narinder Sethi in the mandir with others committing the alleged offences.
However, in the impugned order, Ld. MM has observed that the victims Sachin Tiwari and Kaptan Singh also named the accused. The victim Kaptan Singh stated that he had been told by Sh. Anjani Kumar Mishra that Sh. Narinder Sethi was part of the criminal conspiracy but the summoning order was not in respect of conspiracy and charge of conspiracy has also not been framed against the accused persons.
4.3 The allegations of robbery were not substantiated. The other allegations also were not corroborated by any independent evidence. The ingredients of unlawful assembly were also not fulfilled. The independent witnesses examined by the police deposed that the victims themselves left the temple after termination of their services. In the cancellation report filed by the police, detailed reasons were given for not believing the statements made by the victims but they were not considered by the Ld. Trial Court. There was no grave suspicion against the accused persons to justify framing of charges.
4.4 In support of his arguments, Ld. Sr. counsel relied upon judgement by Hon'ble Supreme Court in the matter of Niranjan Narinder Sethi vs State (CR NO. 227/2017) page no. 8 of 26 Bharatendu Rai etc. vs State (CR No. 228/2017) Kamal Kishore Bhatia & ors. Vs State (CR NO. 233/2017) 9 Singh Karam Singh Punjabi vs. Jitendra Bhimraj Bijja 1990 Cri.L.J. 1869 and judgement by Hon'ble Delhi High Court in the matter of Prashant Bhaskar vs. State (Govt. of NCT of Delhi) 2014 [1] JCC 750. Relying upon the first judgement, it was submitted that there should be very strong suspicion to justify the framing of charge against the accused in respect of commission of the alleged offences. The Court is required to evaluate the material and charge cannot be framed unless there is strong suspicion. Court is not expected even at the 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. Relying upon the second judgement, it was submitted that if two versions or two inferences can be reasonably drawn, the version favourable to the accused has to be accepted by the Court.
Arguments of Ld. Counsel for the petitioners Bhartendu Rai & others and Kamal Kishore Bhatia & others.
5.1 Sh. Ajay Burman, Ld. Sr. Advocate appeared for the above mentioned petitioners. He also argued that there was no grave suspicion to justify framing of charge, the Ld. Trial Court did not consider the material on record including the notice of termination of the services of the victims and the statements made by the independent public witnesses. Though not specifically mentioned in the grounds for filing the revision, Ld. Sr. counsel also Narinder Sethi vs State (CR NO. 227/2017) page no. 9 of 26 Bharatendu Rai etc. vs State (CR No. 228/2017) Kamal Kishore Bhatia & ors. Vs State (CR NO. 233/2017) 10 submitted that registration of the FIR on the complaint dated 04.07.1998 made by Sh. Anjani Kumar Mishra on the letter head of the association, was bad in law as the first information had already been received earlier when Sh. Anjani Kumar Mishra went to PS- Mehrauli and got recorded his statement regarding the alleged incident and also requested that his medical examination be got conducted. In pursuance of the said information, he was medically examined vide MLC No. 58124/98. In addition to the submission that there was no grave suspicion to justify framing of charges, Ld. Sr. counsel also submitted that the ingredients for unlawful assembly and house trespass were not made out.
5.2 Ld. Sr. counsel for the petitioner referred extensively to the documents on record and the statements of witnesses who according to petitioners supported their version. Ld. Sr. counsel also relied upon many authorities. Ld. Sr. counsel submitted that the victims were mere licensees and they had no independent possession. In this regard Ld. Sr. counsel relied up on the judgement by Hon'ble Supreme Court in Chandulal vs. MCD AIR 1978 Delhi 174. In support of his argument that charge should not be framed unless there is grave suspicion and when two views are possible out of which one favours the accused, Ld. Sr. counsel relied upon the judgements reported as 2016 (4) JCC 2201, 2007 (2) JCC 1415, 2002 (1) JCC 172, 1979 SCC (cri.) 609, AIR Narinder Sethi vs State (CR NO. 227/2017) page no. 10 of 26 Bharatendu Rai etc. vs State (CR No. 228/2017) Kamal Kishore Bhatia & ors. Vs State (CR NO. 233/2017) 11 1977 SC 1489.
5.3 In support of his argument that the ingredients of unlawful assembly and house trespass are not present, Ld. Sr. counsel relied upon AIR 1949 Cal 107, 1907 SCC online Cal 198 and 1964 (2) Cri.L.J. 57. Ld. Sr. counsel submitted that the intention required to constitute the offence of house trespass, was missing and therefore, the charge for house trespass, could not be framed. In this regard, reliance was placed on 1999 SCC (Cri.)
691. 6.1 Ld. Addl. PP was assisted by Ld. Counsel for complainant and victims. It was submitted that the judgements relied up by the petitioners are distinguishable on facts. There is no error in the impugned order and the documents filed by the petitioners themselves with the petition justify framing of charge. Analysis :
7.1 The judgements cited at bar by Ld. Sr. counsel for the petitioners, are on section 227 and 228 Cr.P.C. The provisions, which would apply in this case are section 239 and 240 Cr.P.C. There is difference in language of the two sets of provisions. Question arises whether there is any difference in the standards to be applied by the Court of Sessions and by the Court of Metropolitan Magistrate at the time of framing of charge. This issue has been answered by Hon'ble Supreme Court in the matter Narinder Sethi vs State (CR NO. 227/2017) page no. 11 of 26 Bharatendu Rai etc. vs State (CR No. 228/2017) Kamal Kishore Bhatia & ors. Vs State (CR NO. 233/2017) 12 of State of Tamilnadu vs. N. Suresh Rajan & Ors. and State vs. Ponmudi & Ors. (2014) 11 SCC 709. In para 31.3 of the judgement Hon'ble Supreme Court held that notwithstanding the difference in the language of the provisions u/s. 227, 239, 245 and whichever provision may be applicable, the Court is required to see at the stage of framing of charge that there is prima facie case for proceeding against the accused. In the same judgement, Hon'ble Supreme Court held in paragraph 29 that at the time of consideration of the applications for discharge, the Court cannot act as mouthpiece of the prosecution or act as a post office and may sift evidence in order to find out whether or not the allegations made, are groundless so as to pass an order of discharge. It is trite that at the stage of consideration of an application for discharge, the Court has to proceed with an assumption that the materials brought on record by the prosecution are true and evaluate the said materials and documents with a view to find out whether the facts emerging there from taken at their face value disclose the existence of all ingredients constituting the alleged offence. 7.2 It is not necessary to discuss all judgement cited at bar on the scope of Section 227 and 228 Cr.P.C. by Ld. Sr. counsel for the petitioners. However, some observations which are important may be reproduced here. In AIR 1997 SC 1489, it was held by Narinder Sethi vs State (CR NO. 227/2017) page no. 12 of 26 Bharatendu Rai etc. vs State (CR No. 228/2017) Kamal Kishore Bhatia & ors. Vs State (CR NO. 233/2017) 13 the Hon'ble Supreme Court that for the purpose of determining whether there is sufficient ground for proceeding against an accused, the Court possesses a comparatively wider discretion in the exercise of which it can determine the question whether the material on record, if unrebutted, is such on the basis of which a conviction can be said reasonably to be possible. In 1979 SCC (Crl.) 609, Hon'ble Supreme Court held that the test to determine a prima facie case would naturally depend upon the facts of each case and it is difficult to lay down a rule of universal application. 7.3 While deciding whether charge is to be framed, entire material brought on record by the prosecution is to be considered. The question, whether the documents and the statements of witnesses relied upon by the petitioners helps them, will be considered by me. But before that it would be pertinent to mention the observations made by Hon'ble Supreme Court in State of Maharashtra & Ors. vs. Somnath Thapa & Ors., AIR 1996 SC 1744. In this case, Hon'ble Supreme Court held that, if the Court were to think that the accused might have committed the offence, it can frame the charge, probative value of the material on record cannot be gone into; the materials brought on record by the prosecution has to be accepted as true at that stage. Relying upon this judgement, Hon'ble Supreme Court in State of Madhya Pradesh vs. Sheetla Sahay & Ors., (2009) 8 SCC 617, held in Narinder Sethi vs State (CR NO. 227/2017) page no. 13 of 26 Bharatendu Rai etc. vs State (CR No. 228/2017) Kamal Kishore Bhatia & ors. Vs State (CR NO. 233/2017) 14 paragraph 54 that, if upon perusal of entire material on record, the Court arrives at an opinion that two views are possible, charges can be framed, but if only one and one view is possible to be taken, the Court shall not put the accused to harassment by asking him to face a trial.
7.4 Before adverting to the facts of the case, it would be also be in place to examine the scope of revisional powers of the Court. In Amit Kapoor vs. Ramesh Chander & Anr., (2012) 9 SCC 460, Hon'ble Supreme Court has held that the object of the provision is to set right a patent defect or an order of jurisdiction or law. There has to be a well founded error and it may not be appropriate for the Court to scrutinize the orders, which upon the face of it, bears a token of careful consideration and appear to be in accordance with law. Revisional jurisdiction can be invoked where the decisions under challenge are grossly erroneous, there is no compliance with the provisions of law, the finding recorded is based on no evidence, material evidence is ignored or judicial discretion is exercised arbitrarily or perversely. 8.1 The legal position may be summarized as follows. At the stage of framing of charge prima facie view is to be taken. If it is possible that the accused might have committed the offence, charge should be framed. Mini trial is not permissible at the stage of charge and the revisional Court should interfere only when there Narinder Sethi vs State (CR NO. 227/2017) page no. 14 of 26 Bharatendu Rai etc. vs State (CR No. 228/2017) Kamal Kishore Bhatia & ors. Vs State (CR NO. 233/2017) 15 is manifest error of law or fact which has resulted into grave prejudice to the party concerned.
9.1 One of the issues raised by Ld.Sr. Counsel for the petitioners Bhartendu Rai and others & Kamal Kishor Bhatia & Ors., is that the registration of the FIR on the basis of the written complaint dated 04.07.1998 submitted by Sh. Anjani Kumar Mishra, is illegal as his statement had already been recorded vide a DD entry and the FIR should have been lodged on that DD entry. On this point Ld. Sr. counsel relied upon judgement by Hon'ble Supreme Court in Damodaran P. & Ors. vs. State of Kerala AIR 2001 SC 2637. The facts of the said case were totally different. In paragraph 18 of the judgement, Hon'ble Supreme Court observed that an information given under sub-section (1) of Section 154 Cr.P.C. is commonly known as First Information Report (FIR), though this term is not used in the Code. It is very important document. And as its nick name suggests it is earliest and the first information of a cognizable offence recorded by an officer in- charge of a police station. It sets the criminal law into motion and marks the commencement of the investigation which ends up with the formation of opinion under sections 169 or 170 of Cr.P.C., as the case may be and forwarding of a police report under section 173 of Cr.P.C. It is quite possible and it happens not infrequently that more informations than one are given to a police officer in-charge of a Narinder Sethi vs State (CR NO. 227/2017) page no. 15 of 26 Bharatendu Rai etc. vs State (CR No. 228/2017) Kamal Kishore Bhatia & ors. Vs State (CR NO. 233/2017) 16 police station in respect of the same incident involving one or more than one cognizable offences. In such a case, he need not enter every one of them in the station house diary and this is implied in section 154 of Cr.P.C. apart from a vague information by a phone call or cryptic telegram, the information first entered in the station house diary, kept for this purpose, by a police officer in-charge of police station, is the First Information Report-FIR postulated by Section 154 of Cr.P.C. All other information made orally or in writing after the commencement of the investigation into the cognizable offence disclosed from the facts mentioned in the First Information Report and entered in the station house diary by the police officer or such other cognizable offences as may come to his notice during investigation, will be statements falling under section 162 of Cr.P.C. 9.2 In the present case, no FIR was registered on the statement of Sh. Anjani Kumar Mishra which was recorded by a DD entry. Statement of the witness shows that after being forcibly dispossessed and removed from the temple premises, they were left at different places. For example, the victim Ramvir Singh claims that he was dropped at IIT Gate, the victim Kaptan Singh claims that he was dropped ahead of Sangam Vihar, the victim Ram Mehar claims that he was dropped Maidan Garhi, though according to the instruction given by the opposite party, he was to be dropped at Bhati Mines. When the victims were being allegedly Narinder Sethi vs State (CR NO. 227/2017) page no. 16 of 26 Bharatendu Rai etc. vs State (CR No. 228/2017) Kamal Kishore Bhatia & ors. Vs State (CR NO. 233/2017) 17 taken away and dropped at different places, one might not know what had happened with the other. Later on they came together and made written complaint dated 04.07.1998. the said complaint was received but no FIR was registered. FIR was finally registered on 30.11.1998 after a petition was filed by the victims before Hon'ble High Court. This is not a case where second FIR has been registered in pursuance of receipt subsequent information. Police could have registered the FIR on the information received from Sh. Anjani Kumar Mishra through a DD Entry or on the subsequent written complaint. There is no illegality in this for which any benefit can be given to the petitioners. Moreover, this point was not raised by the petitioners in the petitions filed before Hon'ble High Court. Ld. Addl. PP has rightly submitted that this issue cannot be raised before this Court.
10.1 The complainant/victim Sh. Anjani Kumar Mishra stated that Ganga Prasad, Sukhdev and 10-15 unknown persons entered his room and started beating him severely. He was forced to collect his belongings and move out of the room. The victim Sachin Tiwari stated that room no. 115 had been given to him in the staff quarters. On the day of the incident Shashi Bhushan Sharma & others entered his room and took the keys of Hanuman mandir. When he came down from his room to go to the mandir for pooja, he was forced to sign some blank papers. Thereafter, he Narinder Sethi vs State (CR NO. 227/2017) page no. 17 of 26 Bharatendu Rai etc. vs State (CR No. 228/2017) Kamal Kishore Bhatia & ors. Vs State (CR NO. 233/2017) 18 was taken in a car and locked in a room. He was not allowed to take away his belongings. The victim Ramvir also stated that he was living in the mandir. On the day of incident, when he went to Sh. Ram mandir and Hanuman mandir, he saw that Shahsi Bhushan Sharma & Others were standing there and they were armed with heavy sticks. They were beating pujaris and karamcharis and were also forcing them to go out of the mandir. He became scared and went to inform his counsel. When he returned, he was called and made to sign as well as affix his thumb impression on many papers. His cash and camera were taken away. He was threatened and thereafter, left at IIT Gate with his belongings in car no. DIC
101. The victim Kaptan Singh alleges that he was taken away in car no. HR 30 1717 and dropped at Sangam Vihar Red Light. He has also made similar allegations as made by the victim Ramvir Singh. The victim Govind Ram Thapliyal also stated that he was living in the staff quarter in the mandir. On 04.07.1998, Kamal Kishor Bhatia and 4-5 unidentified persons forcibly entered his room and thereafter, he was also given same treatment as others. The victim Dadan Kumar Singh also made allegation that Sh. Jitender Anand and others forcibly entered his room and he was dispossessed. He has also made the allegations as made by the other victims regarding assault and obtaining his signatures on documents. He claims that he was left at Andheria Mod. Narinder Sethi vs State (CR NO. 227/2017) page no. 18 of 26 Bharatendu Rai etc. vs State (CR No. 228/2017) Kamal Kishore Bhatia & ors. Vs State (CR NO. 233/2017) 19 10.2 The issue which arises is whether entry by the trustees and their associates in the rooms of the victims to forcibly dispossess them does not fulfil the ingredients of criminal house trespass as the victims were mere licensees and had no independent possession of the rooms in which they were living. There is also connected issue whether the assembly of the accused and their associates can be called unlawful assembly. 10.3 The distinction between lease and license is well understood and, therefore, there is no need to discuss the judgement cited by Ld. Senior Counsel on this point. Criminal trespass is defined u/s 441 IPC. In the present case, we are concerned with the first part of Section 441 IPC which provides that whoever enters into or upon property in the possession of another with intent to commit an offence or intimidate, insult or annoy any person in possession of such property is said to commit "criminal trespass".
10.4 In para 16 of Corporation of Calicut Vs Sreenivasan (2002) 5 SCC 361, Hon'ble Supreme Court observed that occupation of the licensee is permissive by virtue of grant of licence in his favour, though he does not acquire any right in the property and the property remains in the possession and control of the grantor, but by virtue of such a grant he acquires a right to remain in occupation so long the licence is not revoked and/or he is Narinder Sethi vs State (CR NO. 227/2017) page no. 19 of 26 Bharatendu Rai etc. vs State (CR No. 228/2017) Kamal Kishore Bhatia & ors. Vs State (CR NO. 233/2017) 20 not evicted from its occupation either in accordance with law or otherwise.
10.5 The observations made by Hon'ble Supreme Court in the judgement mentioned above shows that even a licensee can be in possession of the licensed premises till he is evicted in accordance with law or otherwise. Therefore, at the moment when the accused and their associates entered the rooms of the victims and till the victims were evicted, the victims were in possession of their respective rooms.
10.6 While dealing with the issue of possession u/s 145 CrPC, Hon'ble Gauhati High Court in the matter of Bishwanath Biswas Vs. Gauranga Sarkar 1985 SCC online Gau36 held that distinction is not to me made on the issue of possession on the ground that the person in actual possession is licensee and the opposite party is the owner of the property. Even a licensee cannot be evicted by force and the eviction has to be in accordance with law. U/s 441 IPC, the term "possession" has been used without making any distinction between constructive and actual possession. The observations made by Hon'ble Supreme Court and Hon'ble Gauhati High Court support the view that criminal trespass can be committed by the owners/ licensor also if they enter into or upon property in possession of the licensee with the intention as mentioned in the provision.
Narinder Sethi vs State (CR NO. 227/2017) page no. 20 of 26 Bharatendu Rai etc. vs State (CR No. 228/2017) Kamal Kishore Bhatia & ors. Vs State (CR NO. 233/2017) 21 10.7 The victims have clearly stated that the intention of the accused and their associates was to criminally intimidate them and to evict them by use of criminal force. Therefore, the ingredients of Section 441 IPC were satisfied. Since the trespass was made in the rooms in possession of the victims, Section 448 IPC would apply. 10.8 Section 141 IPC defines unlawful assembly. In the present case, there were more than 5 people involved in the commission of the offence. The fourth category u/s 141 IPC provides that an assembly of 5 or more than 5 persons would be unlawful assembly if the common object of the persons forming the assembly is to take or obtain possession of any property by means of criminal force or to enforce any right or supposed right by use of criminal force. The definition makes it clear that even if the accused had a right to evict the victim, their assembly consisting of 5 or more people would be unlawful assembly as its object was to enforce the right and to obtain the possession by use of criminal force.
10.9 The judgements cited at bar by Ld. Senior counsel for the petitioners are distinguishable on facts. In the case of Smt. Mathri & Ors. Vs. State of Punjab 1964 (2) Cri. L.J. 57 , the accused had entered the property to take possession on the basis of a warrant of possession issued in execution proceedings but the Narinder Sethi vs State (CR NO. 227/2017) page no. 21 of 26 Bharatendu Rai etc. vs State (CR No. 228/2017) Kamal Kishore Bhatia & ors. Vs State (CR NO. 233/2017) 22 validity of the warrant had expired. Whether the accused had the intention to commit the offence or not has to be decided on the basis of the facts of the present case. In Satish Chandra Modak Vs. The King 1948 SCC Online Calcutta 187, the landlord broke open the lock and took possession of the tenanted premises in the absence of the tenant who was away from the tenanted premises for long time. These facts are also altogether different from the facts of the present case. In Addaita Bhula & Ors. Vs. Kali Das De 1907 SCC Online Cal198, the accused were asserting their right bonafide and preventing unlawful interference with their khal. Facts of this case are also entirely different from the facts of the present case. Therefore, there is no substance in the argument that ingredients or criminal trespass or unlawful assembly were not present.
11.1 Now I shall examine whether there was grave suspicion to justify framing of the charges. The incident was reported on the day of the incident itself but the police took about 4 months to register the FIR. The statement of the so called independent witnesses has been placed with the earlier charge sheet separately under the category of "statements of culprits and management". They were obviously not going to support the victims. It is also to be noted that in the statement of those witnesses, there is general averment that they saw the pujaris and the sevadars voluntarily Narinder Sethi vs State (CR NO. 227/2017) page no. 22 of 26 Bharatendu Rai etc. vs State (CR No. 228/2017) Kamal Kishore Bhatia & ors. Vs State (CR NO. 233/2017) 23 leaving the mandir with their belongings after termination of their services. They have not specifically stated that they saw any of the victims individually leaving the premises voluntarily. In letter dated 13.10.1999 written by the Managing Committee to the DCP (South), it is mentioned that on 04.07.1998, the 10 sevadars and dozen of others left the mandir complex on their own. The witnesses on whom the petitioners want to rely, have not named the victims. If they are truthful, it is possible that they saw the other sevadars who left the mandir on their own. We cannot say that the statement of those witnesses falsifies the victims so that they are to be disbelieved at the stage of framing of charge. 11.2 The statements on which the petitioners want to rely are signed. On being asked by the court, Ld. Senior counsel for the petitioners submitted that those statements were recorded u/s 161 CrPC. The statements recorded u/s 161 CrPC are not to be signed. In the matter of Razik Ram Vs. Jaswant Singh Chouhan (1975) 4 SCC 769, Hon'ble Supreme Court has explained that signatures of the witnesses are not to be obtained on the statements u/s 161 CrPC so that they can depose freely before the court. 11.3 The statement u/s 161 CrPC is not substantive evidence. It is also to be noted that the statements u/s 161 CrPC can only be used to the extent and manner provided u/s 162 CrPC. The witnesses on whom the petitioners want to rely have signed Narinder Sethi vs State (CR NO. 227/2017) page no. 23 of 26 Bharatendu Rai etc. vs State (CR No. 228/2017) Kamal Kishore Bhatia & ors. Vs State (CR NO. 233/2017) 24 their statements and it is doubtful whether they were making those statements voluntarily without any inducement or fear. Ld. Counsel for the victims also submitted that those witnesses are associated with the management of the mandir. Be that as it may, no reliance can be placed on those statements at this stage for the reasons mentioned above. Reliance by Ld. Senior counsel for the petitioners on the judgement by Hon'ble Delhi High Court in the matter of Sunil Bansal Vs. The State of Delhi 2007 [2] JCC 1415 is also misplaced as in that case, the contradiction was in the two statements of the family members of the victim whereas in the present case the contradiction is sought to be demonstrated with the help of the statements of other witnesses regarding whom it has already been observed above that no benefit can be given to the petitioners on the basis of their statement at this stage. 11.4 Dispute was going on between the parties. Complaints and cross complaints were made. The petitioners were aware that the victims were not going to leave the mandir voluntarily. They published a notice dated 03.07.1998 and pasted it in the mandir. This notice stated that the 10 sevadars had been debarred from entering the mandir or the mandir complex w.e.f. 04.07.1998. The notice did not state that they had also been asked to vacate the mandir. It is clear that ground was being prepared to evict the victims without following the process of law. In the first charge Narinder Sethi vs State (CR NO. 227/2017) page no. 24 of 26 Bharatendu Rai etc. vs State (CR No. 228/2017) Kamal Kishore Bhatia & ors. Vs State (CR NO. 233/2017) 25 sheet, police rightly concluded that offences were committed as the victims had been dispossessed by use of criminal force but the police took a u-turn and filed the cancellation report on the basis of same material. Even if, some allegations of the victims were not substantiated, it does not mean that the entire story was false. If some victims could not mention the registration number of the vehicle used to remove them, it does not mean that their allegations are false or baseless. Absence of visible injury on the person of the victims also does not ipso facto makes them false. 11.5 Considering the manner in which the object was carried out by the accused and their associates, it is natural that each victim did not name each accused in his statement. While reading the statement of the complainant/ victim Sh. Anjani Kumar Mishra, Ld. Senior Counsel left the word "bhi". If we read the statement of Sh. Anjani Kumar Mishra with the word "bhi" the inference is that the accused/ petitioner Narender Sethi was present at the temple premises also at the time of the incident. Presence of the police force in the temple does not rule out the incident. It is pertinent to mention that the fact that police was present in the temple was known even at the time of preparation of the first report u/s 173 CrPC in which it was concluded that offences u/s 147/149/448/120B IPC had been committed. The order passed by Ld. MM does not become perverse because some of the witnesses mentioned by Narinder Sethi vs State (CR NO. 227/2017) page no. 25 of 26 Bharatendu Rai etc. vs State (CR No. 228/2017) Kamal Kishore Bhatia & ors. Vs State (CR NO. 233/2017) 26 him in the order did not actually name the petitioner Sh. Narender Sethi. He has been named by many witnesses/ victims such as Sh. Anjani Kumar Mishra, Sh. Inder Prakash Raghuvanshi, Sh. Raghunath Jha and Sh. Ram Mehar etc. 11.6 The material on record created grave suspicion against the accused / petitioners. Prima facie offences are disclosed against the petitioners for which charge has been framed by the Ld. MM vide order dated 17.05.2017. The petitions are devoid of merit. All three petitions are dismissed. The observations made above are only prima facie view expressed on the basis of the material on record and shall not be construed as a final observation on the merit of the case.
11.7 Copy of the order be sent to the Ld. Trial Court with the TCR and revision files be consigned to Record Room.
Announced in Open Court on (Rajesh Kumar Singh)
05th February 2018 Special Judge (NDPS)/ASJ
South District: Saket
Narinder Sethi vs State (CR NO. 227/2017) page no. 26 of 26
Bharatendu Rai etc. vs State (CR No. 228/2017)
Kamal Kishore Bhatia & ors. Vs State (CR NO. 233/2017)