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Delhi District Court

Parmod Kumar Soni vs State on 29 August, 2014

        IN THE COURT OF SH. SANJAY JINDAL, ADDL. SESSIONS  
            JUDGE WEST - 04, TIS HAZARI COURTS, DELHI

                                   CRIMINAL REVISION No. 41/3


IN THE MATTER OF :

           Parmod Kumar Soni
           S/o Late Sh. H.L. Soni,
           R/o WZ­12, Asalatpur,
           Near A­3 Block, Janakpuri,
           New Delhi - 110058

                                                                                             ............PETITIONER
                                                              versus 

1          State 
           (Govt. of NCT of Delhi)
           Through Public Prosecutor Delhi 


2          Virender Kumar Sharma,
           S/o Late Sh. Kanwar Singh,
           R/o WZ­62­F/A, Possangirpur,
           Janak Puri, New Delhi - 110058

                                                                                             ........RESPONDENTS 


DATE OF FILING                                :           02.05.2012
DATE OF ARGUMENT :                                        29.08.2014 
DATE OF ORDER    :                                        29.08.2014 



CR No. 41/3                                               Parmod Kumar Soni vs. State & Anr.                               Page No.  1/7
                                                             O R D E R

1 This is a revision petition filed by petitioner Sh. Parmod Kumar Soni against the impugned Order dated 22.03.2012 passed by the Ld. SDM u/s 145 Cr.P.C.

2 The brief facts necessary for disposal of the present petition are that kalandra u/s 145 Cr.P.C dt. 04.02.2008 was filed by ASI Hari Chand of P.S Janak Puri against respondent no. 2 Virender Kumar and the petitioner Parmod Kumar Soni with observation that both the parties were claiming their right on the concerned property and cognizable offence can be committed. The petitioner was a tenant in respect of WZ­62­F/A­3, Possangipur, Janak Puri, Delhi. Petitioner claimed that there was a settlement in October 2003 for vacating the suit property and the respondent no. 2 gave Rs. 50,000/­ and agreed to pay the balance amount of Rs. 2,00,000/­. As per petitioner it was also agreed that after reconstruction a shop measuring 9 x 30 feet shall be handed over to the petitioner. It is alleged that although possession of newly constructed shop was given to the petitioner but the balance payment has not been made. Further that now the new shop has also been taken into possession by the respondent no. 2 after trespass. Further that case FIR No. 247/08 P.S Janak Puri u/s 380/406/420/448/451/506/120B IPC was CR No. 41/3 Parmod Kumar Soni vs. State & Anr. Page No. 2/7 registered against the respondent and his father. Further that in view of dispute between the parties the local police registered a Kalandra u/s 145 Cr.P.C as mentioned above.

3 On the other hand, case of respondent no. 2 is that complete payment has already been made to the petitioner and the shop was peacefully handed over to him by the petitioner.

4 Ld. Trial Court vide order dt. 22.03.2012 disposed of the proceedings u/s 145 Cr.P.C after taking evidence, with observation that party no. 1 (respondent no. 2 herein) was in possession of the shop in dispute.

5 By way of present petition, it is contended on behalf of the petitioner that the impugned Order is liable to be set­aside as the said order is bad in law and not sustainable. Further that the trial court has committed grave error while appreciating the evidence led by the complainant. It is contended that the Ld. SDM was not competent to dispose of the Kalandra and proper opportunity has also not been given to the petitioner. During course of arguments it is further argued that in view of relationship of landlord and tenant the SDM was not competent to deal with the matter. Further that the SDM has not passed order u/s 145 (1) Cr.P.C, hence, the final order is not sustainable.

Certain other contentions are also made. The counsel for petitioner has relied upon 2007 Crl. J 1885, 1997 Crl. J. 1947, 2001 Crl. J. 2943, AIR 2009 SC 2827, 2009 Crl. J 1770, 2008 Crl. J 4500, 1998 Crl. J 2096 & 2003 Crl. J 2709 in support of his contention.

6 Notice of petition was sent to respondent and reply and written arguments has been filed on his behalf. The petition has been strongly opposed and it is stated that the impugned order is not liable to be interfered with.

7 I have heard ld. counsel for petitioner and Ld. Addl. PP and carefully perused the record in the light of submissions made before me including written arguments filed by parties.

8 The first contention made on behalf of petitioner is regarding non compliance of section 145 (1) Cr.P.C. It is argued that preliminary order has not been passed by the SDM and without having any apprehension regarding breach of peace etc., the matter could not have been proceeded further. In this regard, a careful perusal of the trial court record shows that the first order of the Ld. SDM is dt. 08.02.2008 and on that date, appearance was made on behalf of parties and after certain observations an order regarding status qua was passed.

Thereafter, pleadings were completed, evidence was collected and the proceedings were concluded vide order dt. 22.03.2012 with observations that as per evidence party no. 1 i.e respondent no. 2 herein Sh. Virender Kumar was in possession of shop in dispute.

9 During course of consideration in the present petition, the concerned clerk from the office of SDM Patel Nagar was called for clarification regarding the record and by way of his statement dt. 07.07.2014 as CW­1 Sh. Arvind Kumar UDC apprised the court that the first order passed by Ld. SDM in this case is order dt. 08.02.2008 and there was no order prior to that date. The order dt. 08.02.2008 does not reflect any satisfaction on part of the Ld. SDM regarding likelyhood of any breach of peace as per clause (1) of section 145 Cr.P.C and there is also no order in writing showing the grounds of his satisfaction and requiring the parties to attend the court. In this regard the counsel for petitioner has relied upon the judgment of Hon'ble Allahabad High Court in Sangam Kumar vs. SDM 1998 Cr.L.J 2096, judgment of Hon'ble Madras High Court in Ms. Thamaraiammal & Anr. vs. The Executive Magistrate 2007 Cr.L.J 1885, judgment of Hon'ble Andhra Pradesh High Court in Janga Mariamma vs. Revenue Divisional Officer 2008 Cr.L.J 4500 & judgment of Hon'ble Madras High Court in Lucas & Ors. vs. Father CR No. 41/3 Parmod Kumar Soni vs. State & Anr. Page No. 5/7 Bilavendran & Ors 1997 Cr.L.J 1947.

10 If the proceedings carried out by Ld. SDM, which culminated into final order u/s 145 Cr.P.C dt. 22.03.2012, are analyzed in light of the provisions of section 145 Cr.P.C and different judgments referred by Ld. counsel for petitioner, it is clear that the final order is not sustainable as no preliminary order under clause (1) of section 145 Cr.P.C has been passed by the Ld. SDM which is a mandatory requirement of law. Mere issuance of notice on the Kalandra filed by the police does not amount to recording of satisfaction by the SDM. There must be a clear and specific order in writing regarding satisfaction of the SDM in terms of section 145 (1) Cr.P.C, which is not available on the record of the trial court in this case.

11 Although, certain other contentions are also made on behalf of petitioner but in my view the lack of preliminary order u/s 145 (1) Cr.P.C in itself is sufficient to invite intervention by this court.

12 In view of above observations, the present revision petition is allowed and order of the Ld. SDM dt. 22.03.2012 is setaside and the matter is remanded back for fresh consideration and disposal in accordance with the provisions u/s 145 Cr.P.C.

13 TCR be sent back alongwith copy of this Order and the parties are directed to appear before the Ld. Trial court on 15.09.2014.

File of the revision petition be consigned to Record Room.

ANNOUNCED IN THE OPEN COURT                              (SANJAY JINDAL)
TODAY i.e.ON 29  August, 2014                       ASJ:04:WEST:THC:DELHI
               th

                                                             29.08.2014




CR No. 41/3                                               Parmod Kumar Soni vs. State & Anr.                               Page No.  7/7