Delhi District Court
Kirti Kumar vs Vipin Kumar Bansal on 10 October, 2022
IN THE COURT OF SHRI SANJEEV KUMAR-II,
SPECIAL JUDGE (NDPS)-02, CENTRAL DISTRICT,
TIS HAZARI COURTS, DELHI
Criminal Revision No. 183/2020
CNR No. DLCT01-003695-2020
Kirti Kumar
S/o Late Chunni Lal
R/o C-672, 2nd Floor,
Sudarshan Park,
New Delhi ....Revisionist
Versus
1. Vipin Kumar Bansal
@ Vinod Kumar Bansal
Son of Shri Trilok Chand,
Resident of 14A/2, Ist floor,
WEA Karol Bagh, New Delhi-110005.
2. Smt. Minal Bansal
Wife of Shri Vipin Kumar Bansal
@ Vinod Kumar Bansal
Resident of 14A/2, Ist Floor,
WEA Karol Bagh, New Delhi-110005.
3. Smt. Pushpa Bansal
Wife of Shri Nathi Lal Bansal,
Resident of 61/13, Ramjas Road,
Karol Bagh, New Delhi-110005.
4. Nathi Lal Bansal
Son of Shri Hazari Lal Bansal,
Resident of 61/13, Ramjas Road,
Karol Bagh, New Delhi-110005
5. S.H.O.
Police Station, Karol Bagh, Delhi ....Respondents
Criminal Revision No. 183/2020 Kirti Kumar v. Vipin Kumar and others 1
Preferred on : 20.03.2020
Reserved on : 08.08.2022
Pronounced on : 10.10.2022
JUDGMENT
This revision under section 397 of the Code of Criminal Procedure, 1973 (in short 'CrPC') is directed against the impugned order dated 07.01.2020 passed by the learned Metropolitan Magistrate-01, Central District, Tis Hazari Courts, Delhi in Complaint Case No. 515700/2016 titled as "Kirti Kumar v. Vipin Kumar Bansal" whereby the accused were not summoned and complaint under section 200 of the CrPC was dismissed under section 203 of the CrPC.
Submissions
2. Mr. Mohd. Imran, learned counsel appearing for the revisionist has submitted that the revisionist had got examined himself and her wife during pre-summoning. There are sufficient grounds for summoning the respondents numbers 1 to 5 and therefore, impugned order may be set aside and said four respondents may be summoned.
3. Per contra, Mr. S. B. Pandey, learned counsel appearing for the respondent numbers 1 and 2 has opposed the revision stating that he has not filed reply but has filed documents. Their is sale deed in favour of the respondent 2. The mother of revisionist had cancelled GPA which was in favour of revisionist. The learned Magistrate has rightly dismissed the complaint.
4. Mr. Balbir Singh, learned Additional Public Prosecutor for the respondent number 5 has submitted that learned Metropolitan Magistrate has rightly dismissed the complaint.
Criminal Revision No. 183/2020 Kirti Kumar v. Vipin Kumar and others 2
5. The revisionist herein had moved an application under section 156(3) of the CrPC before learned Metropolitan Magistrate In said application-complaint, the revisionist alleged, inter alia, that he is a paralytic handicap person of 59 years old. Her wife is also paralytic and bed ridden helpless lady of 49 years of age. He is a bonafide owner of the Flat no. 95, Block13A, Bhrampuri, WEA, Karol Bagh, New Delhi (hereinafter referred to as 'flat'). The flat was initially allotted to his mother Late Smt. Krishna Kumari which was made freehold by conveyance deed dated 20.03.2003. His mother during lifetime bequeathed said flat to him by way of registered will and GPA dated 24.03.2003 in his favour. The respondents have illegally and forcibly dispossessed the revisionist and his family from the flat. The revisionist made several complaints to the local police as well as to the higher authority. However, no action had been taken against the respondents.
6. Vide order dated 14.05.2016 the application under section 156(3) of the CrPC was dismissed and cognizance on the application-complaint was taken and the revisionist was given liberty to lead pre-summoning evidence by the learned Magistrate. After pre-summoning evidence, application- complaint was dismissed under section 203 of the CrPC. The revisionist got examined himself (CW1) and her wife Smt. Veerta (CW2) in his pre-summoning evidenec.
7. The revisionist (CW1) stated that on 18.05.2012 he was suffered paralysis attack and he went to Prasad Nagar Park. On 21.03.2013, when he came back to his flat he found that his flat had been locked from the outside and his household articles were Criminal Revision No. 183/2020 Kirti Kumar v. Vipin Kumar and others 3 left inside the house. His wife was also inside in said flat when the incident took place. When he met with his wife after the incident she told him that accused Vipin Kumar Bansal had thrown some of daily usable household articles outside the house and also documents of his house i.e freehold documents, registered will, deed of conveyance etc. which were left in the almirah inside the flat. His mother executed the documents of the flat in his name in the year 2003 and he was residing therein since birth. The flat was got freehold from MCD in the year 2003. On 30.03.2013, he came to know that the accused had tried to sell the flat after forged documents. Thereafter, he made a complaint to Station House Officer, Police Station, Karol Bagh but no action was taken. Thereafter, he made a complaint to Station House Officer, Police Station, Moti Nagar dated 08.06.2013 vide DD no.37B but they also did not take any action against accused-respondents. He also made complaint to SDM, Jhandewalan dated 08.05.2014 and to Commissioner of Police (HQ) and to the office of Sub-Registrar, Asaf Ali Road on 11.04.2013 but no action was taken by them also.
8. CW2 who is wife of the revisionist, stated that she suffered paralysis attack in the year 2001 and since then she could not walk properly. On 21.03.2013, Vipin Kumar Bansal (respondent no. 1 herein ) came to her flat alongwith four other persons and started throwing her household articles i.e utensils etc. outside the flat and started shouting on her by saying "ghar se bahar niklo" and pushed her outside his house. She was alone at the flat at that time and her husband was not present. Thereafter, they locked her flat from outside and went away. Thereafter, she waited outside the flat till her son came there. She used to live in Criminal Revision No. 183/2020 Kirti Kumar v. Vipin Kumar and others 4 her flat since her marriage. The documents of her house i.e freehold documents, registered will, deed of conveyance etc. were left in the almirah inside the flat. Her mother-in-law executed the documents of flat in name of her husband in the year 2003. Her mother expired in the year 2006. The property in question was got freehold from MCD in the year 2003.
9. The learned Metropolitan Magistrate found no sufficient ground for proceedings against the accused persons-respondents nos 1 to 4 and therefore, the complaint was dismissed under section 203 of the CrPC. There are three broad reasons for dismissal of complaint given by learned Metropolitan Magistrate and same are following:
(i) In the Action Taken Report (ATR) filed by the Investigating Officer after inquiry, it was found that the flat is registered in the name of Ms. Minal Bansal and now the same is on rent to one Vinod Kumar Gupta; that all the allegations levelled by the complainant (revisionist herein) in his complaint were found false and baseless.
(ii) The complainant has claimed himself to be owner of the said flat by way of registered deed, will, deed of conveyance etc. executed by her mother in the year 2003 however, no original documents have been produced before the court on the ground that the said documents was left in the almirah inside the flat;
that there is no documentary evidence on record to support or substantiate the allegations of the complainant made in the complainant against the accused persons; that the complainant has made only bald allegations against the accused person.
Criminal Revision No. 183/2020 Kirti Kumar v. Vipin Kumar and others 5
(iii) Even if, it is presumed that complainant is the owner of the flat and he is wrongfully dispossessed by the accused as alleged by the complainant, the dispute seems to be of civil in nature regarding wrongful dispossession as well as claiming ownership of flat for which the complainant may approach appropriate forum in accordance with Law.
10. The learned Magistrate had passed impugned order at the stage of issuance of summons. Now, question is what are required to be considered at the stage of taking cognizance and issuance of summon.
11. Hon'ble three-Judge Bench of the Supreme Court in Sonu Gupta v. Deepak Gupta & Ors., [Criminal Appeal Nos. 285- 287 of 2015 decided on 11.02.2015] held that at the stage of cognizance and summoning the Magistrate is required to apply his judicial mind only with a view to take cognizance of the offence, or, in other words, to find out whether prima facie case has been made out for summoning the accused persons. At this stage, the learned Magistrate is not required to consider the defence version or material or arguments nor he is required to evaluate the merits of the materials or evidence of the complainant, because the Magistrate must not undertake the exercise to find out at this stage, whether the materials will lead to conviction or not. It is also well settled that cognizance is taken of the offence and not the offender. Hence at the stage of framing of charge an individual accused may seek discharge if he or she can show that the materials are absolutely insufficient for framing of charge against that particular accused. But such exercise is required only at a later stage, as indicated above and Criminal Revision No. 183/2020 Kirti Kumar v. Vipin Kumar and others 6 not at the stage of taking cognizance and summoning the accused on the basis of prima facie case. Even at the stage of framing of charge, the sufficiency of materials for the purpose of conviction is not the requirement and a prayer for discharge can be allowed only if the court finds that the materials raising strong suspicion against an accused, the court will be justified in rejecting a prayer for discharge and in granting an opportunity to the prosecution to bring on record the entire evidence in accordance with law so that case of both the sides may be considered appropriately on conclusion of trial.
12. In Fiona Shrikhande v. State of Maharashtra & Anr., Criminal Appeal No. 1231 Of 2013 decided on 22.08.2013, Hon'ble Supreme Court has held that:
"11. We are, in this case, concerned only with the question as to whether, on a reading of the complaint, a prima facie case has been made out or not to issue process by the Magistrate. The law as regards issuance of process in criminal cases is well settled. At the complaint stage, the Magistrate is merely concerned with the allegations made out in the complaint and has only to prima facie satisfy whether there are sufficient grounds to proceed against the accused and it is not the province of the Magistrate to enquire into a detailed discussion on the merits or demerits of the case. The scope of enquiry under Section 202 is extremely limited in the sense that the Magistrate, at this stage, is expected to examine prima facie the truth or falsehood of the allegations made in the complaint. Magistrate is not expected to embark upon a detailed discussion of the merits or demerits of the case, but only consider the inherent probabilities apparent on the statement made in the complaint. In Nagawwa v. Veeranna Shivalingappa Konjalgi and Others (1976) 3 SCC 736, this Court held that once the Magistrate has exercised his discretion in forming an opinion that there is ground for proceeding, it is not for the Higher Courts to substitute its own discretion for that of the Magistrate. The Magistrate has to decide the question purely from the point of view of the Criminal Revision No. 183/2020 Kirti Kumar v. Vipin Kumar and others 7 complaint, without at all adverting to any defence that the accused may have."
[underlines are mine]
13. In case of S.W. Palanitkar and Ors. v. State of Bihar and Anr., (2002) 1 SCC 241 Hon'ble Apex Court held:
15. In case of a complaint under Section 200 CrPC or IPC a Magistrate can take cognizance of the offence made out and then has to examine the complainant and his witnesses, if any, to ascertain whether a prima facie case is made out against the accused to issue process so that the issue of process is prevented on a complaint which is either false or vexatious or intended only to harass. Such examination is provided in order to find out whether there is or not sufficient ground for proceeding. The words "sufficient ground" used under Section 203 have to be construed to mean the satisfaction that a prima facie case is made out against the accused and not sufficient ground for the purpose of conviction.
16. This Court in Nirmaljit Singh Hoon v. State of W.B. [(1973) 3 SCC 753 : 1973 SCC (Cri) 521] in para 22, referring to scheme of Sections 200-203 CrPC has explained that: (SCC pp.
762-63) "The section does not say that a regular trial of adjudging truth or otherwise of the person complained against should take place at that stage, for, such a person can be called upon to answer the accusation made against him only when a process has been issued and he is on trial. Section 203 consists of two parts. The first part lays down the materials which the Magistrate must consider, and the second part says that if after considering those materials there is in his judgment no sufficient ground for proceeding, he may dismiss the complaint. In Chandra Deo Singh v. Prokash Chandra Bose [(1964) 1 SCR 639 : AIR 1963 SC 1430 : (1963) 2 Cri LJ 397] , where dismissal of a complaint by the Magistrate at the stage of Section 202 inquiry was set aside, this Court laid down that the test was whether there was sufficient ground for proceeding and not whether there was sufficient ground for conviction, and observed (p. 653) that where there was prima facie evidence, even though the person charged of an offence in the complaint might have a defence, the matter had to be left to be decided by the appropriate forum at the appropriate stage and issue of a process could not be refused. Unless, therefore, the Magistrate finds that the Criminal Revision No. 183/2020 Kirti Kumar v. Vipin Kumar and others 8 evidence led before him is self-contradictory, or intrinsically untrustworthy, process cannot be refused if that evidence makes out a prima facie case."
[underlines are mine]
14. In case of Mehmood Ul Rehman v. Khazir Mohammad Tunda and others, Ciminal Appeal No. 1347/2010, the Hon'ble Apex Court held on 31.03.2015:
8. In Pepsi Foods Limited and another v. Special Judicial Magistrate and others, (1998) 5 SCC 749 this Court has held that exercise under Section 204 of CrPC of summoning an accused in a criminal case is a serious matter and that the process of criminal law cannot be set into motion in a mechanical manner. It was also held that 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 governing the issue. To quote:
"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 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 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 time of recording of preliminary evidence before summoning of the accused. The Magistrate has to carefully scrutinise 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."
xxx xxx xxx xxx
17. In Jagdish Ram v. State of Rajasthan and another, (2004) 4 SCC 432 the law was restated holding that at the stage of issuing process to the accused, the Magistrate is not required to record reasons. However, he has to be satisfied that there is Criminal Revision No. 183/2020 Kirti Kumar v. Vipin Kumar and others 9 sufficient ground for proceeding and such satisfaction is not whether there is sufficient ground for conviction. To quote:
"10. ... The taking of cognizance of the offence is an area exclusively within the domain of a Magistrate. At this stage, the Magistrate has to be satisfied whether there is sufficient ground for proceeding and not whether there is sufficient ground for conviction. Whether the evidence is adequate for supporting the conviction, can be determined only at the trial and not at the stage of inquiry. At the stage of issuing the process to the accused, the Magistrate is not required to record reasons."
xxx xxx xxx xxx
20. In Bhushan Kumar and another v. State (NCT of Delhi) and another, (2012) 5 SCC 425 the requirement of application of mind in the process of taking cognizance was reiterated. It was further held that summons is issued to notify an individual of his legal obligation to appear before the Magistrate as a response to the alleged violation of law. It was further held that in the process thus issued, the Magistrate need not explicitly state the reasons -------.
21. The extensive reference to the case law would clearly show that cognizance of an offence on complaint is taken for the purpose of issuing process to the accused. Since it is a process of taking judicial notice of certain facts which constitute an offence, there has to be application of mind as to whether the allegations in the complaint, when considered along with the statements recorded or the inquiry conducted thereon, would constitute violation of law so as to call a person to appear before the criminal court. It is not a mechanical process or matter of course. As held by this Court in Pepsi Foods Limited (supra), to set in motion the process of criminal law against a person is a serious matter.
22. Under Section 190(1)(b) of CrPC, the Magistrate has the advantage of a police report and under Section 190(1)(c) of CrPC, he has the information or knowledge of commission of an offence. But under Section 190(1)(a) of CrPC, he has only a complaint before him. The Code hence specifies that ... "a complaint of facts which constitute such offence". Therefore, if the complaint, on the face of it, does not disclose the commission of any offence, the Magistrate shall not take cognizance under Section 190(1)(a) of CrPC. The complaint is simply to be rejected.
23. The steps taken by the Magistrate under Section 190(1) (a) of CrPC followed by Section 204 of CrPC should reflect that the Magistrate has applied his mind to the facts and the statements and he is satisfied that there is ground for proceeding further in Criminal Revision No. 183/2020 Kirti Kumar v. Vipin Kumar and others 10 the matter by asking the person against whom the violation of law is alleged, to appear before the court. The satisfaction on the ground for proceeding would mean that the facts alleged in the complaint would constitute an offence, and when considered along with the statements recorded, would, prima facie, make the accused answerable before the court. No doubt, no formal order or a speaking order is required to be passed at that stage.
The Code of Criminal Procedure requires speaking order to be passed under Section 203 of CrPC when the complaint is dismissed and that too the reasons need to be stated only briefly. In other words, the Magistrate is not to act as a post office in taking cognizance of each and every complaint filed before him and issue process as a matter of course. There must be sufficient indication in the order passed by the Magistrate that he is satisfied that the allegations in the complaint constitute an offence and when considered along with the statements recorded and the result of inquiry or report of investigation under Section 202 of CrPC, if any, the accused is answerable before the criminal court, there is ground for proceeding against the accused under Section 204 of CrPC, by issuing process for appearance. Application of mind is best demonstrated by disclosure of mind on the satisfaction. If there is no such indication in a case where the Magistrate proceeds under Sections 190/204 of CrPC, the High Court under Section 482 of CrPC is bound to invoke its inherent power in order to prevent abuse of the power of the criminal court. To be called to appear before criminal court as an accused is serious matter affecting one's dignity, self respect and image in society. Hence, the process of criminal court shall not be made a weapon of harassment."
[underlines are mine]
15. Hence, summoning of an accused in a criminal case is a serious matter and therefore, criminal law cannot be set into motion as a matter of course. But, it is also correct to say that the words "sufficient ground" used under Section 203 of the CrPC have to be construed to mean the satisfaction that a prima facie case is made out against the accused and not sufficient ground for the purpose of conviction. The test was whether there was sufficient ground for proceeding and not whether there was sufficient ground for conviction. Where there was prima facie evidence, even though the person charged of an offence in the Criminal Revision No. 183/2020 Kirti Kumar v. Vipin Kumar and others 11 complaint might have a defence, the matter had to be left to be decided by the appropriate forum at the appropriate stage and issue of a process could not be refused. Unless, the Magistrate finds that the evidence led before him is self-contradictory, or intrinsically untrustworthy, process cannot be refused if that evidence makes out a prima facie case. Whether the evidence is adequate for supporting the conviction can be determined only at the trial and not at the stage of the inquiry. Hence, at the stage of summoning, the Magistrate is required to apply his mind to find out whether prima facie case has been made out for summoning the accused.
16. In the light of the allegations as mentioned in the application-complaint, it is necessary to notice section 452 of the IPC, which reads as follows:
452. House-trespass alter preparation for hurt, assault or wrongful restraint.--Whoever commits house-trespass, having made preparation for causing hurt to any person or for assaulting any person, or for wrongfully restraining any person, or for putting and person in fear of hurt, or of assault, or of wrongful restraint, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
17. Section 452 deals with punishment for house-trespass alter preparation for hurt, assault or wrongful restraint. Section 442 defines what is house- trespass and reads as follows:
442. House-trespass.--Whoever commits criminal trespass by entering into or remaining in any building, tent or vessel used as a human dwelling or any building used as a place for worship, or as a place for the custody of property, is said to commit "house-trespass".
Criminal Revision No. 183/2020 Kirti Kumar v. Vipin Kumar and others 12 Explanation.--The introduction of any part of the criminal trespasser's body is entering sufficient to constitute house-trespass.
18. Section 442 deals with criminal trespass in any building, tent or vessel used as a human dwelling or any building used as a place for worship, or as a place for the custody of property. Section 441 defines what is criminal trespass and reads as follows:
441. Criminal trespass.--Whoever enters into or upon property in the possession of another with intent to commit an offence or to intimidate, insult or annoy any person in possession of such property, or having lawfully entered into or upon such property, unlawfully remains there with intent thereby to intimidate, insult or annoy any such person, or with intent to commit an offence, is said to commit "criminal trespass"
19. There are two types of criminal trespass as defined under Section 441 of the IPC. First type of criminal trespass can be committed when a person enters into or upon any property, which is in possession of another with intent to commit an offence or intimidate, insult or annoy any person in possession of such property. The second type of criminal trespass can be committed when a person having lawfully entered into or upon any property, which is in possession of another, unlawfully remains there with intent thereby to intimidate, insult or annoy any such person, or with intent to commit an offence.
20. In the present case, first type of criminal trespass only is required to be considered. For commiting trespass, it is sufficient if a person enters into or upon any property, which is in Criminal Revision No. 183/2020 Kirti Kumar v. Vipin Kumar and others 13 possession of another with intent to commit an offence or intimidate, insult or annoy any person in possession of such property. The person in whose property trespass is committed, must be in possession of said property. There is no requirement/ingredients of criminal trespass that the person who is in possession of the property, must be owner also of the said property. It is sufficient if said person is in possession of said property.
21. In Action Taken Report filed before the Learned Metropolitan Magistrate, it is mentioned that property (flat) belongs to Smt. Krishna Kumari, who is the mother of the revisionist herein; that mother of the revisionist sold the said flat to Ms. Sugandha Aggarwal, who further sold to Ms. Mrinal Bansal (respondent no. 2 herein), wife of respondent no. 1; that the flat is freehold since 2003; that earlier flat was given on rent to Mr. Prasana Ganesh and now to Vinod Kumar Gupta; that all the allegations levelled by the revisionist herein in his complaint found false and baseless. As per the revisionist, he and her wife were dispossessed from the said flat wrongfully by the respondents herein on 21.03.2013. In respect of showing his possession in the said flat, the revisionist has filed copy of his identity card of Election Commission issued on 18.10.2008; Copy of his Aadhar card and of her wife; concession certificate dated 19.07.2010 in the name of Smt. Virta and certificate for the persons with disability of Smt. Virta, wife of revisionist dated 25.03.2010. In the Action Taken Report, it is not mentioned as to whether on 21.03.2013 revisionist and his family were in possession or not and when possession was taken by Ms. Sugandha Aggarwal, from revisionist. It is also not mentioned in Criminal Revision No. 183/2020 Kirti Kumar v. Vipin Kumar and others 14 the said Action Taken Report, when the flat was sold by the mother of the revisionist to Ms. Sugandha Aggarwal and thereafter respondent no. 2 herein by the Ms. Sugandha Aggarwal. The respondent no. 1 & 2 herein had filed some documents in this revision and as per the said documents, said flat was sold by the mother of the revisionist to Ms. Pushpa Bansal on 07.03.2005 and said Pushpa Bansal had sold the said flat to Mrinal Bansal. As per the ATR, mother of the revisionist had sold the said flat to Ms. Sugandha Aggarwal but as per the documents filed by the respondents no. 1 & 2 herein in this revision, mother of the revisionist sold the said flat to one Pushpa Bansal. The documents which have been filed by respondent no. 1 and 2 in this revision are not part of the trial court record.
22. The learned Magistrate has dismissed the complaint on the reasons that the revisionist has claimed himself to be owner of the flat by way of registered deed, will, deed of conveyance etc. executed by her mother in the year 2003 however, no original documents have been produced before the court and further that even if, it is presumed that the revisionist is the owner of the flat and he is wrongfully dispossessed by the accused as alleged by him, the dispute seems to be of civil in nature regarding wrongful dispossession as well as claiming ownership of flat for which the complainant may approach appropriate forum in accordance with law. The learned Magistrate has found that wrongful dispossession of revisionist, if any, is of civil in nature. The learned magistrate has not considered whether wrongful dispossession of revisionist also contain the ingredients of criminal offence. It is well settled that several disputes of a civil nature may also contain the ingredients of criminal offences and Criminal Revision No. 183/2020 Kirti Kumar v. Vipin Kumar and others 15 if so, will have to be tried as criminal offences, even if they also amount to civil disputes. A wrongful or illegal act such as criminal trespass or house trespass etc. may give rise to action both on civil as well as on the criminal side when it is clear from the complaint and sworn statements that necessary ingredients of constituting an offence are made out. In case of S.W. Palanitkar (supra), Hon'ble Apex Court held:
23. Many a times, complaints are filed under Section 200 CrPC by the parties with an oblique motive or for collateral purposes to harass, to wreck vengeance, to pressurize the accused to bring them to their own terms or to enforce the obligations arising out of breach of contract touching commercial transactions instead of approaching civil courts with a view to realize money at the earliest. It is also to be kept in mind that when parties commit a wrongful act constituting a criminal offence satisfying necessary ingredients of an offence, they cannot be allowed to walk away with an impression that no action could be taken against them on the criminal side. A wrongful or illegal act such as criminal breach of trust, misappropriation, cheating or defamation may give rise to action both on civil as well as on the criminal side when it is clear from the complaint and sworn statements that necessary ingredients of constituting an offence are made out. Maybe parties are entitled to proceed on civil side only in a given situation in the absence of an act constituting an offence but not to proceed against the accused in a criminal prosecution. Hence before issuing a process a Magistrate has to essentially keep in mind the scheme contained in the provisions of Sections 200-203 CrPC keeping in mind the position of law stated above and pass an order judiciously and not mechanically or in a routine manner."
[underlines are mine]
23. In case of Arun Bhandari v. State of U. P. and others, Criminal Appeal No. 78 of 2013, decided on 10.01.2012, the Hon'ble Apex Court held:
"24. At this stage, we may usefully note that some times a case may apparently look to be of civil nature or may involve a commercial transaction but such civil disputes or commercial disputes in certain circumstances may also contain ingredients of criminal offences and such disputes have to be entertained notwithstanding they are also civil disputes. In this context, we Criminal Revision No. 183/2020 Kirti Kumar v. Vipin Kumar and others 16 may reproduce a passage from Mohammed Ibrahim and others v. State of Bihar and another, (2009) 8 SCC 751: -
"8. This Court has time and again drawn attention to the growing tendency of the complainants attempting to give the cloak of a criminal offence to matters which are essentially and purely civil in nature, obviously either to apply pressure on the accused, or out of enmity towards the accused, or to subject the accused to harassment. Criminal courts should ensure that proceedings before it are not used for settling scores or to pressurize parties to settle civil disputes. But at the same time, it should be noted that several disputes of a civil nature may also contain the ingredients of criminal offences and if so, will have to be tried as criminal offences, even if they also amount to civil disputes. (See G. Sagar Suri v. State of U.P., (2000) 2 SCC 636 and Indian Oil Corpn. v. NEPC India Ltd.(2006) 6 SCC 736)""
[underlines are mine]
24. From the complaint and examination of revisionist (CW1) and her wife (CW2), it is undoubtly clear that the respondent no. 1 (Vipin Kumar Bansal) along with other person has committed house trespass by entering into the flat which was in possession of the revisionist and her wife, after preparation for causing hurt to revisionist and/or her wife or for assaulting or for wrongfully restraining them, or for putting them in fear of hurt, or of assault, or of wrongful restraint punishable under section 452 of the IPC. There is nothing in examination of CW1 and CW2 in respect of respondent nos. 2 to 5, and there are no specific allegations against them. The allegations are against the respondent no. 1 (Vipin Kumar Bansal) and other 4-5 persons. But, name of other persons are not mentioned in the examination of CW1 and CW2. Hence, there are sufficient grounds to proceed further against the Criminal Revision No. 183/2020 Kirti Kumar v. Vipin Kumar and others 17 respondent no. 1 only for the offence under section 452 of the IPC. The respondent no. 1 is required to be summoned for the said offence. The learned Magistrate shall issue summon against the respondent no. 1 (Vipin Kumar Bansal) for said offence under section 452 of the IPC. The impugned order dated 07.01.2020 is set aside. The revision is allowed, accordingly.
25. The revisionist is directed to appear before learned Metropolitan Magistrate on 13.10.2022.
Digitally signed SANJEEV by SANJEEV
KUMAR
Dated: 10.10.2022 KUMAR Date: 2022.10.10
16:48:30 +0530
(Sanjeev Kumar-II)
Special Judge, (NDPS)-02,
Central District, Tis Hazari Courts, Delhi
Criminal Revision No. 183/2020 Kirti Kumar v. Vipin Kumar and others 18