Delhi District Court
Kalyan Dass S/O Sh. Jai Gopal vs State on 17 October, 2012
Crl. Rev. no.199/2/11
17.10.2012
Pre: Ld. Counsel Sh. Praveen Suri for revisionists.
Revisionist Kalyandass in person.
Revisionist Ramesh Chand is absent.
However, P/E application has been moved. Heard. P/E is allowed
for today only.
Vide separate order placed along side in the file, which has been
passed inabsentia of revisisionist Ramesh Chand, impugned order dated
02.09.2011 is set aside and consequently revisionists are released.
Accordingly, revision petition stands disposed of. Trial Court record, if any, be
sent back with a copy of the order. Revision petition/ proceedings be consigned
to record room.
(RAJ KAPOOR)
ADDITIONAL SESSIONS JUDGE
(WEST02):THC DELHI
1
IN THE COURT OF SH. RAJ KAPOOR, ADDITIONAL SESSIONS JUDGE
(WEST02) , THC DELHI.
Criminal Rev. No.199/2/11
IN THE MATTER OF :
1. Kalyan Dass s/o sh. Jai Gopal
R/o C42, mohendru Enclave,
Gunjaerawala Town, Delhi.
2. Ramesh Chand s/o Sh. Kishan Lal
R/o C7, Rajouri Garden,
New Delhi.
..............Revisionists
Versus
State
FIR no.1052/04
PS Rajouri Garden,
U/s 345A r/w 465 DMC Act, 1957
and 448 IPC.
................Respondent
17.10.2012
ORDER
1. This revision petition is directed against the order dated 02.09.2011 passed by ld. MM (hereafter referred as impugned order) whereby ld. Trial Court ordered to frame charge against the revisionists for the offences u/s 345A r/w 465 DMC Act, 1957 and 448 IPC and charge were framed accordingly.
2. Briefly the factual matrix of the case is that case FIR 1052/04 was registered on the basis of complaint made by AE, MCD regarding tempering of seal by the occupants/ owner of the property bearing no. C7, Rajouri Garden. During investigation (as revealed from the case diary), the revisionists were formally arrested by the police for the reason that they were running Seven Seas Banquet at the premises in question and had tempered the seals 2 affixed by the MCD without any authority. From the above facts it is clear that the MCD had sealed the property but the accused persons entered into the said property after breaking the seals without any authority in this regard. By affixing seals upon the premises in question, the MCD had excluded the revisionists from the possession of the premises in question. The breaking of the seals and the subsequent presence of the revisionists in the premises in question amounts to house tresspass with an intent to annoy the complainant i.e. MCD, as no person is authorized to temper the seals affixed by the MCD.
3. This case came before the ld. trial court. Ld. trial court after perusing the case file and material available on record passed impugned order dated 02.09.2011 whereby ld. trial court ordered to frame charge against the revisionists for the offences u/s 345A r/w 465 DMC Act, 1957 and 448 IPC. Feeling aggrieved with the impugned order and charge ld. counsel for the revisionists filed this revision petition on the grounds that impugned order is bad in law and against the facts and circumstances of the case. Ld. counsel for the revisionist also argued and submitted that impugned order is based on presumption, conjectures and surmises and as such the same is not sustainable in the eyes of law. During the course of arguments Ld. Counsel for revisionists again submitted that no material against the revisionists has come on record. Ld. Counsel for the revisionists further submitted that the revisionist were neither in occupation nor having any 3 ownership with regard to the banquet 7 Seas. He again submitted that the charge and impugned order dt. 02.09.2012 are contrary to each other. On these grounds, he submitted that the revision petition be allowed.
4. Contrary to it, Ld. APP for state submitted that in the FIR, it has specifically come on record that the revisionists were happened to be occupants/owners of the property i.e. C7, Rajouri Garden, Delhi and the seal in question was tempered/broken by them. As a result of which, an FIR was got registered for the offence under section 448/34 IPC. Ld. APP again submitted that at the stage of framing of charge, only prima facie view is to be made by the court of competent jurisdiction. On these grounds, ld. APP submitted that the charge has been framed by the court of competent jurisdiction by taking into consideration all the aspects of law. On these grounds ld. APP submitted that revision petition of the revisionist does not deserve any merit to succeed at this stage.
5. I have perused the case file and gone through the submissions of ld. counsel for the revisionist and ld. APP as well. I have perused the impugned order dated 02.09.2011 whereby ld. trial court ordered to frame the charge against the revisionists for the offences u/s 345A r/w 465 DMC Act, 1957 and 448 / 34 IPC. In 'Kamal Jeswani Vs. State - 110 (2004) DLT 389 : 74 (2004) DRJ 431 (2004) II ADD 587 (2004) II Ad (Cr.) DHC 107 : 2004 MCC 660' it has been observed that : 4 "............ Notice was served upon one Mr. S. Khanna who has nothing to do with the property in as much as neither is he the owner of the property nor his whereabouts are known.
Aforesaid FIR was registered without naming either the owner or occupier or the person who is alleged to have broken the seal. Before any property is sealed or any action is taken under Section 345A of the DMC Act it is incumbent upon the MCD to serve notice upon the owner or occupier. In the FIR there are no allegations as to who has broken the seal. ................."
6. In the case in hand it has come on record that no owner ship document has been brought on record to connect the revisionists with the alleged property in question. Besides, there is nothing on record to show that who tampered the seal of that property in question and how the revisionists are liable for it. Further, I am of the view that in this regard, no notice has been issued or served either upon the owner or the occupier by the MCD. Therefore, there exists no prima facie case for the offences u/s 448 IPC , 345 r/w 465 DMC Act precisely for the reasons that before any property is sealed or any action is taken under Section 345A of the DMC Act it is incumbent upon the MCD to serve notice upon the owner or occupier, as observed in the judgment discussed supra. Hence, in the facts and circumstances of the case the impugned order dated 02.09.2011 is set aside and consequently revisionists are released. Accordingly, revision petition stands disposed of. Trial Court record, if any, be sent back with a copy of the order. Revision petition/ proceedings be consigned to record room.
ANNOUNCED IN THE OPEN COURT ON THIS 17.10.2012 (RAJ KAPOOR) ADDITIONAL SESSIONS JUDGE (WEST02):THC DELHI 5