Delhi District Court
Sh. Vinod Sharma vs State on 1 December, 2021
IN THE COURT OF MS. CHARU AGGARWAL: ASJ-02:
CENTRAL: TIS HAZARI COURTS: DELHI.
CNR No. DLCT01-010107-2021
Criminal Revision No. 137/2021
In the matter of:-
1. Sh. Vinod Sharma
S/o Late Hari Krishan Shastri
T-30, Gali No. 8, Gautam Puri,
Seelampur, Delhi-110053.
2. Sh. Lilesh Sharma
S/o Late Hari Krishan Shastri
T-61, Shri Radha Krishna Mandir,
Vallabh Bhavan, Aram Bagh, Delhi-110055.
3. Ms. Chander Kanta Sharma
W/o Sh. Vinod Sharma
T-30, Gali No 8, Gautam Puri,
Seelampur, Delhi-110053.
4. Ms. Neha
D/o Sh. Lilesh Sharma
T-61, Shri Radha Krishna Mandir
Vallabh Bhavan, Aram Bagh, Delhi-110055. ..... Revisionists
Versus
1. State
Through Chief Secretary,
Govt. of NCT of Delhi, Delhi.
Digitally signed
by CHARU
AGGARWAL
Vinod Sharma & Ors. Vs. State & Anr. CHARU --Page 1 of 16--
Date:
AGGARWAL 2021.12.02
16:28:16
+0530
2. Sh. Mukesh Billa
S/o Late Madan Lal Billa
R/o 1054, Main Bazar, Pahar Ganj,
Delhi-110055. ....... Respondents.
Date of institution : 13.08.2021
Date of decision : 01.12.2021
JUDGMENT
1. The present revision petition u/s 397 Criminal Procedure Code ((hereinafter referred to as "CrPC") is directed against the order dated 17.02.2020 passed by Ld. ACMM 01, (Central), Delhi whereby revisionist(s) were summoned for commission of offence U/s 323/341/506 Indian Penal Code (hereinafter referred as to "IPC"), in a private complaint bearing No. 529357/16 u/s 200 CrPC filed by respondent No. 2 herein (complainant before Ld. Trial Court).
2. The revisionists herein are the accused persons and respondent no. 2 is the complainant before the Ld. Trial Court. All the revisionists are family members as revisionist No. 1 and 2 are real brothers, respondent No. 3 is wife of respondent No.1 and respondent No. 4 is daughter of respondent No. 2.
3. The facts borne out from the Trial Court Record are that both the parties are known to each other since long time.
Digitally signed by CHARUVinod Sharma & Ors. Vs. State & Anr. CHARU AGGARWAL --Page 2 of 16--
AGGARWAL Date:
2021.12.02 16:28:38 +0530 Several litigations are pending between them relating to property bearing No. T-61, Shri Radha Krishna Mandir, Vallabh Bhavan, Aram Bagh, Pahar Ganj, Delhi-55 measuring 1100 sq. Yards (hereinafter referred to as "disputed property"). A temple is situated on the disputed property. As per complainant, originally the disputed property was owned by the deceased mother of revisionist No. 1 and 2 (Vinod & Lilesh Sharma). Initially, the complainant used to come at the disputed property(temple) to perform puja, but with passage of time, he started assisting mother and sister of revisionist No. 1 & 2 in maintaining the temple.
4. As per the complainant, originally, late Smt. Shakuntala Devi(mother of revisionist No. 1 and 2) was the owner of the disputed property. Family of Late Smt. Shakuntala Devi was consisting of her husband, two sons(revisionist No. 1 &
2) and seven daughters but she (Shakuntala Devi) had strained relations with all her family members except her one unmarried daughter Smt. Guddi Devi. As per the death certificate of Late Smt. Shakuntala Devi annexed with the complaint, she has expired on 20.02.2006. Late Smt. Shakuntala, during her life time, executed registered Will dated 23.11.2004 in favour of Smt. Guddi Devi bequeathing the disputed property in her favour. Smt. Guddi Devi also expired on 05.07.2015 and during her lifetime she executed registered Will dated 01.04.2015 whereby she bequeathed the disputed property in favour of complainant, Digitally signed by CHARU Vinod Sharma & Ors. Vs. State & Anr. CHARU AGGARWAL --Page 3 of 16--
AGGARWAL Date:
2021.12.02 16:28:56 +0530 to whom she (Late Smt. Guddi Devi) used to treat as her brother (Muh Bola Bhai), The complainant on the basis of Will dated 01.04.2015, purported to be executed by Late Smt. Guddi Devi has claimed his ownership in the disputed property.
5. The complainant has stated that the accused persons are real brothers, sister in law(Bhabhi) and niece of late Smt. Guddi Devi, who was unmarried, and being her family members, the accused persons got annoyed on coming to know regarding execution of Will dated 01.04.2015, by Late Smt. Guddi Devi in favour of complainant, therefore, they all started hatching conspiracy against him and threatened him that in case he would raise his claim on the disputed property, they would kill him or would implicate him in a false case. Regarding the behaviour of the accused persons, the complainant has lodged several complaints in the concerned Police Station, those complaints are stated to be dated 28.07.2015 vide DD No. 56-D, 19.08.2015 vide DD No. 30-D, 25.08.2015 vide DD No. 56-D, 27.08.2015 vide DD No. 2-B, It is alleged that on 05.09.2015, on the occasion of Janmashtmi when complainant went to perform Puja in the temple situated at disputed property, all the accused persons gave merciless beatings and inflicted injuries upon him, regarding which he lodged his complaint dated 08.09.2015, 12.09.2015 and 28.09.2015, to the concerned Police Station but despite filing of various complaints, the police did not take any action, therefore, Digitally signed by CHARU Vinod Sharma & Ors. Vs. State & Anr. CHARU AGGARWAL --Page 4 of 16--
AGGARWAL Date:
2021.12.02 16:29:12 +0530 the complainant filed the complaint U/s 200 Cr.PC alongwith an application U/s 156 (3) Cr.PC before Ld. Trial Court seeking summoning of accused persons for the offence U/s 323/506/120- B IPC.
6. On receipt of the complaint U/s 200 Cr.PC, the Ld. Trial Court called the Action Taken Report (ATR) from the concerned police station and as per the ATR filed by the police, on 06.09.2015, one PCR call vide DD No. 6-B regarding the quarrel was received at police station Pahar Ganj. On inquiry the police found that on 05.09.2015, the complainant was misbehaving with the ladies who were distributing the Parsad outside the disputed property and when ladies tried to apprehend the complainant, he fled away on the scooter and fell down.
The complainant filed the objections on the ATR filed by the police stating that the police is supporting the accused persons by filing the false ATR.
7. The Ld. Trial Court vide its order dated 08.06.2016 dismissed an application u/s 156 (3) CrPC filed by the complainant and gave opportunity to the complainant to adduce pre-summoning evidence.
8. The complainant has examined total five witnesses in his pre-summoning evidence. CW1 is complainant himself. CW-2 and CW3 are stated to be eye witnesses of the incident. CW4 and CW5 are formal witnesses. Complainant (CW-1) reiterated and re-affirmed the same facts in his evidence as stated Digitally signed by CHARU AGGARWAL Vinod Sharma & Ors. Vs. State & Anr. CHARU --Page 5 of 16--
Date:AGGARWAL 2021.12.02 16:29:34 +0530 in his complaint. CW2 and CW3 have also deposed in favour of complainant on the alleged incident of 05.09.2015.
9. The Ld. Trial Court vide impugned order dated 07.09.2020 on the basis of material on record, summoned the accused persons(revisionists) including one Lalita Sharma who is stated to be wife of accused Lilesh Sharma (revisionist No. 2) for the offence u/s 323/341/506/34 IPC. However, it is informed that prior to filing the present revision, Lalita Sharma has expired on 13.11.2020.
10. Revisionists being aggrieved by the impugned order have filed the present revision petition on the ground that Ld. Trial Court has not properly appreciated the facts of the case. It is stated in the revision as well as argued by Ld. Counsel for revisionists that revisionist No. 1 to 3 are senior citizens as revisionist No. 1 is 81 years of age and revisionist No. 2 and 3 are aged about 62 and 67, therefore, it is highly improbable for them to hit and kick the complainant who is a young man in comparison to the revisionist No. 1 to 3. It is argued that revisionist No. 4 is a married daughter of revisionist No. 2 and in order to falsely implicate a young married girl, complainant has concocted the story against the revisionists. Ld. counsel has argued that the present case is totally false and the outburst of various Civil litigations pending between the parties in regard to the disputed property. As per revisionists, they are the owners of the disputed property since originally father of revisionist No. 1 Digitally signed by CHARU Vinod Sharma & Ors. Vs. State & Anr. CHARU AGGARWAL --Page 6 of 16--
AGGARWAL Date:
2021.12.02 16:29:51 +0530 and 2, was the owner of disputed property who during his lifetime executed a Will in their favour whereby said property was bequeathed to them. All the electricity bills are stated to be in the name of father of accused no. 1 and 2.
Ld. counsel has pointed out the following litigations pending between the parties(complainant and accused persons) or their predecessors relating to the disputed property:-
(i) Suit No. 1:- Late Smt. Guddi Devi, during her life time, filed a civil suit No. 594858/16 titled as "Guddi Sharma Vs. Vinod Sharma" against her father and accused persons seeking restrain orders from dispossession from a room in her possession in the disputed property. She was claiming her ownership in the property by virtue of Will dated 23.11.2004, stated to be executed by her late mother in her favour;
(ii) Suit No. 2:- This civil suit bearing No. 595861/14 for possession was filed by Late father of the accused persons against Smt. Guddi Devi for possession, however, subsequently, the possession was received by the father of the accused persons, therefore, the said suit was withdrawn by him;
(iii) Suit No. 3:- The third suit was filed by the complainant against the accused persons seeking mandatory injunction, however, his interim injunction application is stated to have been dismissed by Ld. Civil Judge against which he filed appeal which is also stated to have been dismissed.
11. Ld. counsel for accused persons has argued that the Digitally signed by CHARU CHARU AGGARWAL Vinod Sharma & Ors. Vs. State & Anr. AGGARWAL Date: --Page 7 of 16--
2021.12.02 16:30:07 +0530 complaint u/s 200 CrPC has been filed by the complainant only in order to build pressure upon them to give up their claim in the disputed property.
12. Ld. counsel for complainant in assistance with Ld. Addl. PP has argued in favour of impugned order and submitted that at the time of summoning the accused, the Court only has to consider the prima-facie case and here not only the complainant but two independent witnesses CW2 and CW3 have also deposed regarding the incident of 05.09.2015 that on the said day, accused persons hit and kicked the complainant outside the disputed property. It is argued that in view of the testimony of complainant and also of CW2 & CW3 who are the independent witnesses, Ld. Trial Court has rightly summoned the accused persons.
13. I have considered the arguments advanced by Ld. Counsel for accused persons, complainant and Ld. Addl. PP.
14. In "Pepsi Food Ltd. Vs. Special Judicial Magistrate" (1998) 5 SCC 749, the Hon'ble Apex Court has observed that summoning of an accused in a criminal case is a serious matter and criminal law cannot be set into motion in routine manner. In this case, the Hon'ble Apex Court specifically observed that even if the complainant brings two witnesses in support of his allegations that is not sufficient to initiate the criminal proceedings. The summoning order should reflects that the MM has applied its mind on the facts of the case for summoning the accused persons. The proposition has been Digitally signed Vinod Sharma & Ors. Vs. State & Anr. by CHARU --Page 8 of 16--
CHARU AGGARWAL
AGGARWAL Date:
2021.12.02
16:30:23 +0530
recently reiterated by the Hon'ble Apex Court in
"Ravinderanatha Bajpe Vs. Manglore Special Economic Zone Ltd. & Ors", Criminal appeal no. 1047-1048/2021 decide by Hon'ble Apex Court on 27.09.2021. The relevant portion of "Pepsi Food" (Supra) is re-produced as under:-
"28. Summoning of an accused in a criminal case is a serious matter.
Criminal law cannot be set into motion as a matter of course. It is not that the complainant has to bring two witnesses to support his allegations in the complaint to have the criminal law set into motion. The order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. He has to examine the nature of allegations made in the complaint and the evidence both oral and documentary in support thereof and would that be sufficient for the complainant to succeed in bringing charge home to the accused. It is not that the Magistrate is a silent spectator at the Digitally signed by CHARU Vinod Sharma & Ors. Vs. State & Anr. CHARU AGGARWAL
--Page 9 of 16--
Date:
AGGARWAL 2021.12.02 16:30:39 +0530 time of recording of preliminary evidence before summoning of the accused. The Magistrate has to carefully scrutinize the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations or otherwise and then examine if any offence is prima facie committed by all or any of the accused".
15. The present case relates to the incident of 05.09.2015, when the complainant has alleged that on the said day in the late evening around 11:45 PM, he went to perform Janmashtmi Puja at disputed property (temple), where, the revisionists caught hold of him and gave merciless beatings to him. To support the occurrence of 05.09.2015, the complainant in his pre-summoning evidence has examined CW-2 and CW-3 as independent eye witnesses to the incident. Both these CWs i.e. CW-2 and CW-3 are husband and wife and have stated that on 05.09.2015, they saw the complainant being beaten by 10-11 people including men and women. CW-3 specifically named one Nilesh who was beating the complainant and has stated that she Digitally signed by CHARU AGGARWAL CHARU Vinod Sharma & Ors. Vs. State & Anr. AGGARWAL Date:
2021.12.02
--Page 10 of 16--
16:30:56 +0530 knows Nilesh since she purchases milk from him and she can identify him and his wife who was also one of the assailants of the incident. The testimonies of both these witnesses does not support the deposition of the complainant since as per the own case of the complainant on 05.09.2015, he was being beaten only by the accused persons (revisionists) but not by any other person, however, as per the statements of CW-2 and CW-3, they saw 10- 15 people beating the complainant, this rather support the version of the police put before the court by way of Action Taken Report that on 05.09.2015, complainant was misbehaving with the females who were distributing Parsad outside the temple (disputed property) and when the ladies with the help of other devotees tried to apprehend him he fled away from the spot on a scooter and fell down. More interestingly, the names of both these CWs never surfaced on record prior to April-2018 as the complainant for the first time introduced these witnesses in his favour in April-2018 at the time of pre-summoning evidence. It may be noted that before and after April-2018, the complainant has admittedly filed several complaints dated 07.09.2015, 12.09.2015, 29.09.2015 to police, complaint U/s 200 Cr.PC in October-2015 (the complaint in which the present impugned order is passed) alongwith the list of witnesses and another complaint dated 02.12.2015 sent by him to the Court by post but in none of these complaints he has disclosed the names of these two witnesses having witnessed the alleged incident of Digitally signed by CHARU CHARU AGGARWAL Vinod Sharma & Ors. Vs. State & Anr. AGGARWAL Date: --Page 11 of 16--
2021.12.02 16:31:10 +0530 05.09.2015. These witnesses were for the first time introduced by the complainant in his favour almost after three years of the alleged incident in April-2018. Had, the witnesses in favour of complainant regarding the alleged incident were available at the time of incident itself then there was no reason for him not to name them either in his various police complaints filed post alleged incident or in the complaint U/s 200 Cr.PC filed before the trial court or even in the list of witnesses filed therewith. Furthermore, the order dated 06.04.2018 of Ld. Trial Court show that the complainant on that day not only filed an application to examine CW-2 and CW-3 in his pre-summoning evidence but he also brought both these witnesses alongwith him to be examined on his behalf which further shows that these two witnesses have deposed in favour of the complainant at his instance. They by no means can be treated as independent witnesses to the incident. As already observed, summoning of an accused person in a criminal case is a serious matter and in this case also summoning of accused persons relying upon the deposition of the witnesses whose names never surfaced in three years of the incident would be travesty of justice with the accused persons, therefore, this court does not find it safe to rely on the testimonies of these witnesses to summon the accused persons.
16. As per the complainant on 05.09.2015 at 11:45 PM in the late evening, he was mercilessly beaten by the revisionists. In order to support the incident, the complainant has relied upon Digitally signed by CHARU AGGARWAL CHARU Date: AGGARWAL 2021.12.02 Vinod Sharma & Ors. Vs. State & Anr. 16:31:21 --Page 12 of 16--
+0530 his MLC. A perusal of MLC would show that the complainant had visited Lady Harding Hospital on 06.09.2015 at 01:45 PM where he reported only the pains he was having at that time but no fresh injury except the swelling in his left eye was found by the Doctor concerned. Apart from the MLC, certain other medical documents dated 06.09.2015 of the complainant are also on record like report from X-Ray and Surgery Department but these reports also do not reflect that complainant had sustained any fresh injury in the incident of 05.09.2015, as in those departments also he only reported the pain he was having at that time. The complainant has alleged that the accused persons who according to him were five in number gave merciless beatings to him but it is highly unbelievable that if five persons would beat a single person as alleged but the person so beaten would not receive even a abrasion or bruises on his body. Thus, even the MLC does not support the version of the complainant regarding the incident of 05.09.2015.
17. It would also be pertinent to mention here that as per the complainant himself, he had made several police complaints against the accused persons on 28.07.2015, 06.08.2015, 19.08.2015, 25.08.2015 etc., but surprisingly no complaint was made by him immediately after the incident of 05.09.2015 as the first complaint reporting the said incident was allegedly made by him on 08.09.2015 i.e. after three days of the incident. It is hard to believe that a person who was making repeated police Digitally signed by CHARU AGGARWAL CHARU Vinod Sharma & Ors. Vs. State & Anr. AGGARWAL Date: --Page 13 of 16--
2021.12.02 16:31:36 +0530 complaints one after another against a particular person(s) but after some incident, he does not promptly take any action and would remain silent not only for a day or two but for three days which indicates that the complainant essentially has concocted the story against the revisionists herein in three days from 05.09.2015 to 08.09.2015. Though, the complainant reported the incident to the police vide DD No. 6 B on 06.09.2015 at 2:10 AM but various DD Entries of the police are part of the record which show that despite several request of the police officials the complainant till 29.11.2015 did not join the inquiry initiated on the said DD. The last such DD recorded by the police is 43-B dated 29.11.2015, wherein it is recorded that despite several request by the police, the complainant did not join the inquiry started on DD No. 6-B. The record further shows that the complainant instead of joining the inquriy started on DD No. 6-B was continuously sending the complaints (dated 08.09.2015, 12.09.2015, 29.09.2015) to the police by post reporting the incident of 05.09.2015 and alleged threats received by him from the revisionists. He also filed complaint U/s 200 Cr.PC in October-2015 and on 02.12.2015, he sent another complaint to Ld. CMM, Central, in which also he has shown his apprehension from the revisionists and also reported the incident of 05.09.2015. Not only this, even during the pendency of the complaint U/s 200 Cr.PC, on 23.08.2019, the complainant filed application before the Ld. Trial Court seeking personal security Digitally signed by CHARU AGGARWAL CHARU Vinod Sharma & Ors. Vs. State & Anr. AGGARWAL Date:
2021.12.02
--Page 14 of 16--
16:31:50 +0530 and on his said application the security was provided to him by witness protection committee only for the purpose of attending Court cases but he was not satisfied with the security provided to him by the committee, therefore, he again moved an application on 27.07.2021 before Ld. Trial Court seeking 24 hours security from revisionists but the said application of the complainant was dismissed by the Ld. Trial Court on 24.08.2021. It seems that the complainant by filing various complaints one after the another against the revisionists at different forums held bent to establish them as "Goonas" of the area but the local police of Police Station Pahar Ganj, where the revisionists are residing since decades, has not reported that they have received any complaint against them from any other resident of the area except the complainant. A perusal of all the complaints filed by the complainant either in police or to the Court show that his real grievance is relating to the disputed property and nothing else only in order to implicate the revisionists in one or the another case in order to build undue pressure on them to settle the dispute relating to disputed property. All the criminal complaints including the complaint u/s 200 CrPC filed by the complainant are nothing but a civil dispute which has been given a colour of criminal offence.
18. The conduct of the complainant may also be gathered from his police complaint dated 28.07.2015, wherein he has alleged that the revisionists were also harassing their another Digitally signed by CHARU CHARU Vinod Sharma & Ors. Vs. State & Anr. AGGARWAL AGGARWAL --Page 15 of 16--
Date: 2021.12.02 16:32:05 +0530 sister namely Visharda but on receipt of notice from the Court, a detailed inquiry was conducted by the police in which the statement of Visharda was recorded and in her said statement she said that some outsiders are harassing her brothers and their families and unnecessarily blaming them for his self interest but she did not say even a word against the revisionists herein as alleged by the complainant in his complaint dated 28.07.2015.
19. In the light of above discussion, this Court is of the view that the impugned summoning order passed by Ld. MM cannot be sustained and accordingly, the same is hereby set- aside. Consequently, this revision petition is hereby allowed and stands disposed off.
Trial Court Record alongwith a copy of this order be sent back to the Court below. Revision file be consigned to the record room.
Digitally signed by CHARU CHARU AGGARWAL
AGGARWAL Date: 2021.12.02
16:32:21 +0530
Announced in the open court (Charu Aggarwal)
on 01st December, 2021. ASJ-02/Central/THC/Delhi Vinod Sharma & Ors. Vs. State & Anr. --Page 16 of 16--