Delhi District Court
Aman Nath vs Atul Nath on 4 May, 2023
IN THE COURT OF SHRI ANUJ AGRAWAL
ADDITIONAL SESSIONS JUDGE-05, SOUTH EAST DISTRICT,
SAKET COURTS, NEW DELHI
REVISION PETITION No. 251 of 2023
CNR NO. DLSE01-004462-2023
IN THE MATTER OF:
1. Aman Nath
S/o late Ashok Nath
R/o A-51, Ground Floor,
Nizamuddin East,
New Delhi-110013.
2. Sh. Achal Nath
S/o late Ashok Nath
R/o A-51, Second Floor,
Nizamuddin East,
New Delhi-110013.
.......Revisionists
Versus
1. Atul Nath
S/o late Ashok Nath
R/o A-51, First Floor,
Nizamuddin East,
New Delhi-110013.
2. Ritu Nath
W/o Sh. Atul Nath
R/o A-51, First Floor,
Crl Rev. No. 251 of 2023 Aman Nath & Anr. vs. Atul Nath & Anr. Page No. 1 of 10
Digitally signed by
ANUJ ANUJ AGRAWAL
AGRAWAL Date: 2023.05.04
13:12:55 +0530
Nizamuddin East,
New Delhi-110013.
3. Akhil Nath
S/o Sh. Atul Nath
R/o A-51, First Floor,
Nizamuddin East,
New Delhi-110013.
4. Ashish Nath
S/o Sh. Atul Nath
R/o A-51, First Floor,
Nizamuddin East,
New Delhi-110013.
........Respondents
Instituted on : 24.04.2023
Reserved on : Not reserved
Pronounced on : 04.05.2023
JUDGMENT
1. By way of instant petition, revisionists take exception to the order dated 28.01.2023 passed by Ld. Metropolitan Magistrate-03 (MM), South East District, Saket Court, New Delhi, in complaint case bearing CT cases No. 616542/2016 titled as Aman Nath & Anr. vs. Atul Nath & Anr., to the extent that respondents were not summoned for offences u/s 295/295A/296/298/354/354B/448/451/500/511/120B IPC. Vide impugned order, respondents were only summoned for offences u/s 341/352/34 IPC.
Crl Rev. No. 251 of 2023 Aman Nath & Anr. vs. Atul Nath & Anr. Page No. 2 of 10
ANUJ Digitally signed by ANUJ
AGRAWAL
AGRAWAL Date: 2023.05.04
13:13:04 +0530
The petition is accompanied with an application u/s 5 of Limitation Act seeking condonation of delay in filing the present petition.
2. For the reasons stated in the application and in the interest of justice, the delay in filing instant appeal stands condoned.
3. Brief facts, as noted by Ld. MM in the impugned order, are not in dispute and the same are being reproduced for the sake of convenience :-
"Stated briefly, the complainants and accused No.1 are brothers amongst each other, accused no.2 is the wife of accused no.1, while accused no.3 & 4 are two sons of accused no.1&2. Further the facts of the case are such that the accused at the time of the incident i.e on 17.11.2013 was in possession of kitchen and drawing room of the ground floor of their home, whilst remaining area of the ground floor was in the possession of him as well their mother. It is the grievance of the complainant that on 17.11.2013, when the complainants namely, Aman Nath and Atul Nath brought the dead body of their mother back to home, accused Atul Nath refused to open the areas in the ground floor of the property concerned which were in his possession and upon being requested to do so by Anshu Chopra (sister of the complainant) to open the lock of the area concerned, Akhil Nath and Sh. Ashish Nath who are sons of Atul Nath abused her and pushed her on the ground floor and specifically Sh. Ashish Nath tore her clothes and said that the property possession would remain the same as it was before Smt. Sheela Nath, deceased mother of the complainants was alive. It was only after the intervention of the SHO and he warned the accused persons that they would be arrested that the locks were opened by accused pursuant to which the dead body of the deceased mother could be taken to the living room. Hence, the complainants are aggrieved by the acts of the accused persons as the same caused a lot of distress, humiliation and agony to the complainants. It is submitted that the accused persons therefore, be summoned and tried for the offences U/s 120B/295/295A/296/298/341/354/354B/448/451/500/511/34 IPC."
Crl Rev. No. 251 of 2023 Aman Nath & Anr. vs. Atul Nath & Anr. Page No. 3 of 10 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2023.05.04 13:13:20 +0530
4. Trial Court record reveals that the revisionists examined themselves as CW1 and CW2 and Mrs. Anshu Chopra in support of their allegations in pre-summoning evidence. Ld. MM, vide impugned order, did not find any sufficient ground to summon the respondents/accused for offences u/s 295/295A/296/298/354/354B/448/451/500/511/120B IPC. The relevant observations of Ld. MM are being reproduced for the sake of convenience:-
"So far as, the arguments of the Ld. Counsel for the complainant to invoke Section 295/295A/296 & 298 are considered, the same are not attracted to the present case as the facts of the present case do not disclose any offence relating to religion or acts intended to outrage the religious feeling of any class, group or caste. It may be true that the acts of the accused persons might have caused inconvenience and humiliation to the complainants, however, the bare perusal of the complaint would show that the present case pertains to the issue of possession of the portion of the house between the brothers.
.......................
Further, Ld. Counsel for the complainant has argued that accused persons may be summoned u/s 354/354B IPC as they allegedly tore the clothes of the sister of the complainants namely Mrs. Anshul Chopra.So far as the above allegation is concerned, the relevant portion of the testimony of CW3 herself is reproduced below:
CW-3 has deposed as follows:- ".......Instead of allowing me and my husband to prepare the ground floor to receive the body and observe the last rites, both Atul Nath and Ritu Nath shouted at us and told us not to bring the body home but take the body direct to the cremation ground. Minutes later the ambulance arrived from the hospital accompanied by my twin brothers Achal and Aman Nath and when the ambulance staff tried to bring the body inside Atul, Ritu and their adult sons Akhil and Ashish Nath pushed aside all of us viz Achal, Aman, myself and my husband to prevent us from opening the front door of the ground floor and a scuffle broke out in which my clothes were torn. As the situation was rapidly deteriorating with the violence of Atul and his two sons Crl Rev. No. 251 of 2023 Aman Nath & Anr. vs. Atul Nath & Anr. Page No. 4 of 10 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2023.05.04 13:13:34 +0530 towards us, my brother Aman phoned the police for help....".
If the testimony of CW3 is seen in totality, it clearly appears that there was a scuffle that happened between the complainants and the accused persons and during the scuffle, some clothes of CW3 was torn. CW3 who was the victim herself nowhere mentioned as to what portion of the cloth was torn and which accused in particular did the said act. Moreover, it appears that even if, the fact that the clothes were torn is believed to be true, there was no allegation by the said witness that the same was done intentionally. Therefore, ingredients of Section 354/354B which mandates " the intention to outrage the modesty" or " with the intention of disrobing the women" are not made out.
Ld. Counsel has further argued that the accused persons may be summoned under Section 448/451 IPC as the ground floor property belongs to the deceased mother and the accused persons wrongfully trespassed into the same. So far as the said argument is concerned, it is the admitted position in the facts of the present case that the accused persons were using some portion of the property on the ground floor even before the death of the mother and therefore the ingredients of the abovesaid offences are not made out.
Further, Ld. Counsel for the complainant has argued that the accused persons may be summoned u/s 500 IPC. Upon perusing the entire facts and the testimonies of the witnesses, I am of the considered opinion that the ingredients of Section 499 IPC are not made out.
Ld. Counsel for the complainants has urged this court to invoke Section 341 IPC which punishes a person for causing wrongful restrain. Record reveals that the complainants had a right to proceed to the living room of the ground floor alongwith the dead body of their mother and it is prima facie established that they were wrongfully restrained by the accused persons, hence the offence u/s 341 IPC is prima facie is made out against the accused persons. Also, since there are allegations against the accused persons to enter into fist fight and assaulting the complainants and their sister, the offences u/s 352 IPC is also made out.
In view of the above, I hereby issue summons against the accused persons for offences u/s 341/352/34 IPC. However, there is no sufficient material before me to summon and try Crl Rev. No. 251 of 2023 Aman Nath & Anr. vs. Atul Nath & Anr. Page No. 5 of 10 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2023.05.04 13:13:46 +0530 the accused persons for offences U/s 295/295A/296/298/354/354B/448/451/500/511/120B IPC.
5. Revisionists are aggrieved with the said order and have assailed the same on various ground which can be summarized as under:-
(i) That the impugned order passed by Ld. Trial Court is against the settled principles of law and is liable to be set-
aside to the extent that respondents were not summoned for offences u/s 295/295A/296/298/354/354B/448/451/500/511/ 120B/IPC;
(ii) That Ld. Trial Court has failed to appreciate the testimony of revisionists as well as material available on record;
(iii) That Ld Trial Court failed to appreciate the fact that the complaint of revisionists and evidence on record discloses commission of offences u/s 295/295A/296/298/354/354B/ 448/451/500/511/120B IPC against respondents;
(iv) That Ld Trial Court passed the impugned order in a mechanical manner and same is full of surmises and conjectures;
6. Ld. Counsels for revisionists argued on the line of grounds as mentioned in the instant revision petition. It was argued that Ld. Magistrate committed grave error in passing the impugned order as the same was passed in haste ignoring the factual matrix and material available on record. It was further argued that impugned order is bad in law and is liable to be set aside. On the strength of these arguments, revisionist seeks setting aside of the impugned order and summoning of respondents for the said offences. Ld. Counsels have relied upon following judgments in support of their contentions:-
(a) Mohamed Gani vs. The Superintendent of Police, W.P. No. 5202 of 1998;
Crl Rev. No. 251 of 2023 Aman Nath & Anr. vs. Atul Nath & Anr. Page No. 6 of 10 ANUJ Digitally signed by ANUJ AGRAWAL AGRAWAL Date: 2023.05.04 13:13:58 +0530
(b) Sethu Raja vs. The Chief Secretary, W.P.(MD) No. 3888 of 2007;
(c) Ramji Singh @ Mujeeb Bhai vs. State of U.P. & Ors., Civil Misc. Writ Petition No. 38985 of 2004;
(d) Devarapalli Lakshminarayana Reddy & Ors. vs. V. Narayana Reddy & Ors., 1976 SCC (3) 252.
7. Heard. Record perused.
8. In the matter of Taron Mohan v. State & Anr 2021 SCC OnLine Del 312 Hon'ble Delhi High Court has observed as under:-
"9. The scope of interference in a revision petition is extremely narrow. It is well settled that Section 397 CrPC gives the High Courts or the Sessions Courts jurisdiction to consider the correctness, legality or propriety of any finding inter se an order and as to the regularity of the proceedings of any inferior court. It is also well settled that while considering the legality, propriety or correctness of a finding or a conclusion, normally the revising court does not dwell at length upon the facts and evidence of the case. A court in revision considers the material only to satisfy itself about the legality and propriety of the findings, sentence and order and refrains from substituting its own conclusion on an elaborate consideration of evidence."
9. Further, Hon'ble Apex Court in Sanjaysinh Ramrao Chavan vs. Dattatray Gulabrao Phalke and others, 2015 (3) SCC 123 observed as under :
"14.....Unless the order passed by the Magistrate is perverse or the view taken by the court is wholly unreasonable or there is non-consideration of any relevant material or there is palpable misreading of records, the Revisional Court is not justified in setting aside the order, merely because another view is possible. The Revisional Court is not meant to act as an appellate court. The whole purpose of the revisional jurisdiction is to preserve the power in the court to do justice in accordance with the principles of criminal jurisprudence. The revisional power of the court under Sections 397 to 401 CrPC is not to be equated with that of Crl Rev. No. 251 of 2023 Aman Nath & Anr. vs. Atul Nath & Anr. Page No. 7 of 10 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2023.05.04 13:14:07 +0530 an appeal. Unless the finding of the court, whose decision is sought to be revised, is shown to be perverse or untenable in law or is grossly erroneous or glaringly unreasonable or where the decision is based on no material or where the material facts are wholly ignored or where the judicial discretion is exercised arbitrarily or capriciously, the courts may not interfere with decision in exercise of their revisional jurisdiction."
14. In the above case also conviction of the accused was recorded, the High Court set aside the order of conviction by substituting its own view. This Court set aside the High Court's order holding that the High Court exceeded its jurisdiction in substituting its views and that too without any legal basis."
10. Therefore, in view of the settled position of law, this court in its revisional jurisdiction, is not expected to substitute its own view with that of court below unless the order passed by Ld. Trial Court suffers from jurisdictional error or patent infirmity/illegality. In the instant case, as evident from record, Ld. Magistrate while narrating (in detail) the facts, passed a well reasoned detailed order, thereby not summoning the respondents for offences u/s 295/295A/296/298/354/354B/ 448/451/500/ 511/120B IPC and summoning them only for offences u/s 341/352/34 IPC. In my view, this court cannot and rather ought not substitute its own view with that of Ld. Magistrate (while exercising its revisional jurisdiction) and thereby arriving at a different conclusion. This court is of the view that the Ld. MM has provided clear and cogent reasons for not summoning the respondents and it is clearly not for this Court to second guess the decision.
11. Suffice it would be to say that the alleged act of respondent do not bring the same within ambit of section 295/295A/296/298 IPC as it Crl Rev. No. 251 of 2023 Aman Nath & Anr. vs. Atul Nath & Anr. Page No. 8 of 10 ANUJ Digitally signed by ANUJ AGRAWAL AGRAWAL Date: 2023.05.04 13:14:18 +0530 cannot be said that the respondents intended to outrage any religious feeling by not allowing the dead body to be kept in the living room. Similarly, from the testimony of CW3, it is clear that her clothes got torn in the scuffle taking place between parties and therefore it cannot be said that the respondents had intended to disrobe her.
12. It is a settled law that summoning of an accused in a criminal case is a serious matter as held by Hon'ble Apex Court in M/s. Pepsi Foods & Anr Vs. Special Judicial Magistrate & Ors., AIR 1998 SC 128, wherein it was observed:-
"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 only 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 that would 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 time of recording of preliminary evidence before summoning of the accused. 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".
13. Similar are the observations of Hon'ble Supreme Court in Ravindranatha Bajpe vs Mangalore Special Economic Zone Ltd. & Others, Crl Appeal No.1047-1048/2021 dated 27th September 2021. If the factual matrix of the present case is tested upon the touchstone of the principles as laid down in said cases, I am of the considered view that no Crl Rev. No. 251 of 2023 Aman Nath & Anr. vs. Atul Nath & Anr. Page No. 9 of 10 ANUJ Digitally signed by ANUJ AGRAWAL AGRAWAL Date: 2023.05.04 13:14:27 +0530 ground for summoning of respondent was made in the instant case for the offences u/s 295/295A/296/298/354/354B/448/451/500/511/120B IPC and therefore the view as taken by Ld. MM cannot be faulted with.
14. Revisionists have failed to point out any patent illegality/ infirmity or jurisdictional error in the impugned order and therefore, present petition is liable to be dismissed.
15. With these observations, it is held that there is no patent illegality, impropriety or jurisdictional error in the impugned order. The instant revision petition stands dismissed accordingly. None of the judgments relied by Ld. Counsels for revisionists come for their aid in factual matrix of the present case.
16. TCR be sent back to Ld. Trial Court along with copy of this judgment.
17. Revision file be consigned to Record Room after due Digitally signed by compliance. ANUJ ANUJ AGRAWAL AGRAWAL Date: 2023.05.04 13:14:34 +0530 Announced in the open (ANUJ AGRAWAL) Court on 4th May, 2023 Additional Sessions Judge-05, South East, Saket Courts, New Delhi Crl Rev. No. 251 of 2023 Aman Nath & Anr. vs. Atul Nath & Anr. Page No. 10 of 10