Delhi District Court
(4) Pranay Jain W/O Sachin Jain D/O Late ... vs . on 16 November, 2017
In the court of Additional Session Judge04, District Shahdara,
(Model/Pilot Project Court), Room No.51, Second Floor, Karkardooma
Courts, Delhi
Smt. Shachi Mahajan & Others
Vs.
State (NCT of Delhi) Through APP & Anr.
CNR No. DLSH010049852017
Crl. Rev. No. 06/17 date of institution : 04.08.2017
U/ss : 397 Cr.P.C. decision reserved on: 01.11.2017
I.D. No. 148/17 date of decision: 16.11.2017
In the matter of
(1) Smt. Shachi Mahajan w/o Sh. Aditya Mahajan
d/o Late Sh. Rajesh Jain R/o D113, Anand Vihar, Delhi92.
(2) Sh. Deepak Jain S/o Late Rajesh Jain
R/o A12, Suraj Mal Vihar, Delhi92.
(3) Smt. Nirupama Jain w/o Late Rajesh Jain
R/o A12, Suraj Mal Vihar, Delhi92.
(4) Pranay Jain w/o Sachin Jain d/o Late Rajesh Jain
R/o 35, Beedan Pura, Karol Bagh, New Delhi.
...Petitioners
Versus
(1) The State (NCT of Delhi)
Through Addl. P.P. for the State. ...Respondent no.1
(2) Smt. Santosh Mahajan W/o Late Avinash Mahajan R/o D113, Anand Vihar, Delhi92.
Presently at D46, Kalkaji, Extension, Delhi ... Respondent no.2 Cr. Rev. No. 06/17 Shachi Majahan & Others. Vs. State & Anr. Page 1 of 10 J U D G M E N T [On revision petition u/s 397 Cr.P.C. qua order dated 17.05.2017 by the court of Metropolitan Magistrate, Shahdara, Delhi directing for framing of formal notice].
1.1 (Introduction) - Respondent no. 2 Smt. Santosh Mahajan/ complainant filed a written complaint against Smt. Shachi Mahajan/petitioner no.1 and against Deepak Jain, Nirupama Jain and Pranay alias Lovely (other petitioners no. 2 to 4) besides another person, however, by order dated 20.4.2013 by the court of Additional Chief Metropolitan Magistrate, Shahdara District (hereinafter referred as the trial court), the petitioners (no. 1 to 4) have been summoned u/s 451/427/34 IPC. The petitioners put their appearance before the trial court.
1.2 On 17.5.2017, after hearing both the sides, the then court of Additional Chief Metropolitan Magistrate, Shahdara District (briefly the trial court) passed a detailed order by holding that notice u/s 427 IPC is made out against petitioner no. 1 and u/s 451/427/34 IPC against other petitioners no. 2 to 4. The substance of allegation is that on 16.10.2012, the petitioners forcibly break opened the door and entered into the house of complainant/respondent no. 2. It is also observed by the trial court that petitioner no. 1 is daughter in law of respondent no. 2/complainant but she had no right to cause damage to the doors/property for making forcibly entry into the house, the other petitioners are relative of petitioner no. 1.
Cr. Rev. No. 06/17 Shachi Majahan & Others. Vs. State & Anr. Page 2 of 10Petitioners are feeling aggrieved by the impugned order dated 17.5.2017 while holding to frame formal notice u/s 251 Cr.P.C. and the said order has been challenged in revision petition. 2.1 (Background) - The respondent no. 2/complainant is motherin law of petitioner no. 1; petitioner no. 2 Deepak Jain is brother of petitioner no. 1 and petitioner no. 3 is mother of petitioner no. 1 and petitioner no. 4 is sister of petitioner no. 1. The case of complainant is that her daughterinlaw Shachi Mahajan had left the matrimonial home on 30.09.2012 of her own and did not came back. On 16.10.2012, she alongwith other petitioners made forcibly entry into the house by breaking the door with cutter and damaged the property and complainant/respondent no. 2 had bolted the house from inside despite that the forcible entry was made. To prove these aspects, the respondent no. 2 filed a complaint and also got examined herself and other two witnesses.
2.2 On the other side, the petitioners have filed certain record that in fact the summoning order dated 20.4.2013 was assailed before Hon'ble High Court of Delhi, however, as per directions, the submissions were directed to be made, which were also made so before the trial court but the same were not considered and appreciated and that is why the order dated 17.5.2017 of directing framing of formal notice u/s 251 Cr.P.C. is challenged in the present revision petition.
The revision petition is accompanying various record inclusive of a chart of events in a chronological manner ( annexure P3, pages 47 to 54 of paper book besides paragraph no. 12 of the revision petition) that she had gone to see her ailing mother (without disclosing Cr. Rev. No. 06/17 Shachi Majahan & Others. Vs. State & Anr. Page 3 of 10 any date, month and year) and when she returned back to her matrimonial home on 02.10.2012 and 11.10.2012 under information to Protection Officer and she further narrates that there were certain calls to PCR visavis on the evening of 16.10.2012, she made an entry of out of amicable settlement. Therefore, her entry was not a forceful entry or any trespass visavis the facts in the complaint are fabricated, therefore, the impugned order of framing of notie is liable to be set aside.
3.1 (Plea in the revision petition) The petitioners request that there is serious irregularities and illegalities in the order dated 17.05.2017 as many facts ought to have been considered by the trial court, the same have not been considered like the security guard of area was not examined, there is no other substantive or independent witness got recorded, the persons milkman, newspaper, house maid etc have not been examined, no CCTV footage is on the record, there was no danda, or stone, or hammer or cutter mentioned by the complainant in the statement or to substantiate her allegations. The photographs do not show as to when they were snapped nor there is any certificate, which is hit by section 65B of the Indian Evidence Act [during arguments reliance were placed on Anvar P.V. Vs. P.K. Basheer (2014) 10 SCC 473]. Many of the grounds in the revision petition are with regard to allegation as to what kind of bride was liked by respondent no. 2 or with regard to job of petitioner no. 1 or extra marital affair of husband of respondent no. 2, with a lady, named in the petition and so on, [since they are not to be adjudicated in this revision Cr. Rev. No. 06/17 Shachi Majahan & Others. Vs. State & Anr. Page 4 of 10 petition, the same are not repeated to make the record voluminous as voluminous revision petition].
3.2 (Oral submissions) - Sh. Neeraj Kumar Mishra, counsel for petitioner no. 1 to 4 requests that by taking into account, the points raised inn the revision petition, it is very much clear that there was no forcible entry in the premises by the petitioner nor role of anyone of the petitioners, therefore, the allegations of complainant/respondent no. 2 are without any substance, they are manufactured allegations. In addition, the trial court had called a status report, wherein it was clearly mentioned that no offence is made out, there was no reason to the trial court to summon the petitioners and to put them to the trauma of trial and similarly, there was no reason to direct to frame formal notice u/s 251 Cr.P.C. The trial court has considered the statement of complainant and other as gospel truth, in fact there is no substance in the statement of witnesses to make out a case of 451 or 427 IPC, section 427 IPC applies when there is negligence etc, it is not attracted to this case and similarly section 451 IPC will be attracted, when there is entry into the house and then something incriminating is done, that facts are also not existing to invoke sec. 451 IPC against the other petitioner. The photographs do not satisfy the test of Indian Evidence Act as it does not depict presence of anyone and the damages being attributed cannot be associated with the petitioners; otherwise, the photographs have to satisfy the test of electronic document, which has not been satisfied (as held in Anvar PV case supra). Therefore, when there was a peaceful entry into the house, this entire complaint is to be discarded and petitioners are to be discharged forthwith.
Cr. Rev. No. 06/17 Shachi Majahan & Others. Vs. State & Anr. Page 5 of 104.1 (Plea of complainant/respondent no. 2) Whereas, the complainant /respondent no. 2 has opposed the revision petition vehemently that impugned order does not suffer from any illegality or irregularity nor there is any flaw in the findings given in order dated 20.04.2013 or in order dated 17.5.2017, when formal notice has been directed. In fact, the revision petition is premature as formal notice was yet to be framed but findings have been given that offence u/s 427 IPC is made out against petitioner no. 1 and offence u/ss 451/427/34 IPC against remaining petitioners no. 2 to 4. In fact the summoning order stand confirmed while directing framing of notice by order dated 17.5.2017.
Otherwise, on plain reading of statement of complainant itself, what kind of trauma of fear was faced by her is apparent from her statement itself, she bolted her to save from untoward incident of injuries to her, otherwise the entry was made after breaking the door, it is forceful entry by damaging the property, it is a criminal trespass and damage by mischief. The submissions on behalf of petitioners are defensive to selfserve them, they cannot derive any benefit at this stage, the statement of complainant and other witnesses clearly makes out notice against them, which has been rightly held by the trial court. The revision petition is liable to be dismissed.
4.2 (Plea of respondent no.1/State) Sh. Shahabuddin Ld. Addl. P.P. for the State requests that it is a detailed order by the trial court and as appear from the contents of order, the trial court formed an opinion that there exists sufficient material to frame the formal notice Cr. Rev. No. 06/17 Shachi Majahan & Others. Vs. State & Anr. Page 6 of 10 and that material is derived from the preliminary evidence got recorded by the complainant.
5.1 (Findings with reasoning) - The contentions of both the sides are considered, keeping in view the material on record of trial court, the provisions of law and the plea taken in revision petition.
5.2 First of all, a few aspects about scope of framing of charge is to be discussed as in the submissions those has been touched upon, by the petitioners. The complaint u/s 190(a) Cr.P.C. is governed and is to be read with section 200 to 203 and 204 Cr.P.C. The trial court may call an inquiry u/s 202 (1) of Cr.P.C., but ultimately this provision is invoked after taking cognizance of complaint u/s 190(a) Cr.P.C. The status report, when called and furnished by the police, is not an investigation u/s 156(3) Cr.P.C., consequently, it cannot be treated a police report. The court has to form an independent opinion on the basis of material before it, inclusive or not of inquiry asked from the police. Now with this clarification on concept raised, the other issues are taken.
5.3 There are three witnesses (CW1/complainant, CW2/Dr. Deepak Gupta and CW3 Aditya Mahajan, who is son of complainant), out of them , CW 1 is the exclusive eye witness of the episode. Her statement is supported by photographs (Ex.CW 1/1 to Ex.CW1/7) to show the position of damaged door to substantiate forcible entry into the house, besides other documents.
On the one side, the case of complainant/respondent no. 2 is that it was forceful entry into the house by breaking the door by the Cr. Rev. No. 06/17 Shachi Majahan & Others. Vs. State & Anr. Page 7 of 10 petitioners and causing damage to property/door and on the other side, the plea of petitioners is that there was an amicable settlement and it was peaceful entry on 16.10.2012 after they found the house closed/bolted by the respondent no.2. There is also a chart of events by petitioners, and it reflects as if the petitioners were not given entry into the house by the complainant but there was some settlement on telephone between the petitioner no.1 and or her husband and complainant/respondent no.2. On the one side, the petitioners are denying the facts stated on Oath by the complainant and her witnesses and on the other side, the petitioners are suggesting to believe that there was an amicable settlement, is it not paradoxical in the plea of petitioners, since, at the stage of framing of notice or charge, it is to be seen whether there exists sufficient material to proceed with the case. In order to frame a formal notice, there should be sufficient or prima facie material to substantiate the allegations, however, in order to held a person guilty or to convict a person, the proof of those prima facie or substantive allegations are required to established by the complainant/prosecution. But the plea of petitioners, being projected throughout, is like that in order to frame a formal notice, there should be proof of those allegations, whereas, proof of those allegations are subsequent to framing of formal notice ( in case of summons trial cases) or subsequent to framing of charge (in case of warrant trial cases in police cases) or precharge evidence (when there are warrant cases other than police case before magistrate) recorded before framing charge.
Cr. Rev. No. 06/17 Shachi Majahan & Others. Vs. State & Anr. Page 8 of 10Statement of complainant /CW1 was recorded on 09.1.2011 (before and after lunch session) and in her latter statement (page no. 2 and 3), she has narrated the episode of 16.10.2012 as to how entry was made by the petitioner no. 1 alongwith other petitioners, the photographs (Ex.CW1/1 to Ex.CW1/7) are to be read with her statement. This suffice the requirement of law and the findings given in order dated 17.5.2017 are based on material/evidence on record of trial court, which was recorded before summoning the petitioners or to say, it was recorded before the petitioners were summoned by the court.
5.4 So far the plea of want of examination of other witnesses or the complainant ought to have collected other material is concerned, are deemed defences. Further petitioners plea that the petitioner no.1 or others had made a peaceful entry after settlement on telephone are also the defences or possible defences of the petitioners, the same are subject matter of trial. In addition, the complainant had also filed a list of witnesses, which is on the record of complaint, it is governed by section 204 of Cr.P.C. CCTV footage may be a piece of evidence but in its absence, whether the facts seen and experienced by complainant and others can be ignored, answer goes in negative. Similarly, the photographs relied upon by the complainant are part of her statement, in case the petitioners have reservation thereto, that is subject matter of evidence to be tendered after framing of formal notice, as now evidence will be recorded in the presence of accused, being scheme of the Criminal Procedure Code, 1973.
Cr. Rev. No. 06/17 Shachi Majahan & Others. Vs. State & Anr. Page 9 of 105.5 Section 425 IPC defines 'mischief' and it involves element of intention and sec. 427 IPC defines punishment for mischief, thus petitioners plea that it applies to in situation of negligence, it is not acceptable. Similarly sec. 442 IPC defines 'house trespass' and it is made punishable u/s 451 IPC, there is also damage to the property of complainant; thus section 451 IPC is attracted.
5.6 In view of the aforementioned detail discussion, it is held that there is no irregularity or illegality in the impugned order by directing for framing of formal notice, therefore, there is no reason to perverse the findings of trial court and the revision petition does not carry any merits. The revision petition is dismissed.
6. The trial court record alongwith copy of this judgment be sent to the trial of Ld ACMM Shahdara District/successor court to proceed as per law and both the parties will remain present there on scheduled date given by trial court.
Announced in open court today Thursday, 25 Kartika, Saka 1939.
(Inder Jeet Singh) Additional Session Judge04 (Shahdara), KKD Courts, Delhi 16.11.2017 Cr. Rev. No. 06/17 Shachi Majahan & Others. Vs. State & Anr. Page 10 of 10