Delhi District Court
Minesh Parikh vs State on 18 January, 2012
IN THE COURT OF SHRI RAJEEV BANSAL,
ASJ-03 (SOUTH DISTRICT), SAKET COURTS,
NEW DELHI.
Criminal Revision No. 10/10
(Unique No.02403R0183492010)
Minesh Parikh
S/o Sh. Pankaj Parikh
R/o H. No. D-75, Freedom
Fighter Colony, Neb Sarai,
New Delhi. ...........Revisionist
Versus
1. State
2. Satish Rastogi
S/o Late Sh. L.N. Rastogi,
R/o D-76, Freedom Fighter's
Colony, Neb Sarai,
New Delhi-110068 ..........Respondents
Date of Initial Institution :29.05.2010
Date of Institution in this Court :22.09.2010
Date of Pronouncement :18.01.2012
ORDER
1. This revision petition has been filed against the summoning order dated 03.06.2009 whereby the Ld. Trial Court had directed issuance of summons to the petitioner C.R No.10/10 Minesh Parikh vs. State & Anr. 1/11 under Section 427 and 453 of IPC. Aggrieved by the summoning order, accused/petitioner has preferred this revision petition.
2. A complaint was filed by the respondent No.2 Satish Rastogi before the Ld. Trial Court under Section 200 of Cr.P.C against the petitioner for commission of offences under Section 427/453/506/34 IPC. Alongwith this, an application under Section 156 (3) Cr.P.C was also filed. In this complaint, it has been stated that the complainant had gone to Haridwar with his family members on 24.05.2007, keeping the keys of the house with a neighbour Praveen Tiwari. He returned on 28.05.2007 when he found the doors/window panes of his two cars to be open which were parked on the rear plot of the complainant. He also noticed broken flower pots on the terrace of his house. He further found the wall of the house of the petitioner/accused plastered which was done without seeking any permission from the complainant. The complainant then made a complaint dated 30.05.2007 C.R No.10/10 Minesh Parikh vs. State & Anr. 2/11 to the Police but no action was taken by the Police.
3. On 12.07.2007, Ld. Trial Court called for the Action Taken Report from SHO, P.S. Mehrauli, in pursuance to which reply dated 20.08.2007 was filed by the Police. On the basis of report, Ld. Trial Court dismissed the application under Section 156 (3) Cr.P.C vide its order dated 06.12.2007. However, liberty was given to the complainant to lead pre-summoning evidence whereafter the complainant examined himself as CW-1 and Praveen Tiwari as CW-2. After taking into consideration, pre- summoning evidence of these two witnesses, Ld. Trial Court vide its impugned order dated 03.06.2009 directed issuance of summons against the petitioner/accused only under Section 427 and 453 IPC holding that no case is made out under Section 506 IPC. It is this order of 03.06.2009 which has been challenged by the petitioner/accused in these proceedings.
4. Ld. Counsel for the petitioner has stated that there C.R No.10/10 Minesh Parikh vs. State & Anr. 3/11 are improvements in the version of the complainant as also in the statement of CW-2 Praveen Tiwari. Ld. Counsel for the petitioner has also stated that the impugned order is a non-speaking order which does not show any application of mind on the part of the Ld. Trial Court. It has been argued that in the reply filed to the application under Section 156 (3) Cr.P.C, a thorough investigation done by the Police is reflected, whereafter the Ld. Trial Court came to the conclusion that no FIR was required to be registered against the petitioner/accused. It has been further stated that the offences under Section 427 and 453 IPC are not made out from the statements of the witnesses, who have been examined in pre-summoning evidence on behalf of the respondent No.2/complainant. The Ld. Counsel thus prayed for dismissal of the complaint.
5. On the other hand, the impugned order has been supported by the respondent No.2/complainant and it has been stated that the impugned order is only a summoning order and the perusal of the statements of the witnesses C.R No.10/10 Minesh Parikh vs. State & Anr. 4/11 show that there is nothing wrong in the impugned order. It has also been stated that there is application of mind on the part of the Ld. Trial Court as there is no summoning under Section 506 IPC and it is not that the petitioner/accused has been summoned for all the sections prayed by the complainant before the Ld. Trial Court. The Ld. Counsel thus prayed for dismissal of the Revision Petition.
6. I have heard both the Ld. Counsels and perused the records. TCR was summoned and that too has been gone through. The law regarding summoning is well settled. The court at the stage of summoning is only required to see if the material placed on record shows a prima facie case against the accused or not. In reaching this conclusion about the prima facie nature of the material, the court is also required to see the pre-summoning evidence, if any led on behalf of the complainant, and the complaint filed before it. This pre-summoning evidence is recorded under Section 200 of Cr.P.C.
C.R No.10/10 Minesh Parikh vs. State & Anr. 5/11
7. In his complaint filed before the Court, the complainant had stated that he had gone to Haridwar on 24.5.2007 with his family and gave keys of his house to his neighbour Praveen Tiwari. It was also stated in the complaint that he returned on 28.5.2007 and found the doors/window panes of his two cars open. He also found broken flower pots on terrace and also noticed the wall of the house of the accused/Petitioner to be plastered by dropping the labour from his terrace to the complainant's terrace, without seeking his permission. He reported the incident immediately to PS Mehrauli on 30.5.2007 by a written complaint.
8. In his statement recorded in the Court as CW-1, he stated that he had gone to Haridwar with his family on 24.5.2007 after giving keys of his house to Praveen Tiwari and returned on 28.5.2007. On 29.5.2007 in the morning while going for his job, he found the window panes and doors of his two cars to be open. In the evening, he went to the terrace and found the flower pots broken and the C.R No.10/10 Minesh Parikh vs. State & Anr. 6/11 Water tank to be full of mud. He also found that the Petitioner/accused had got his wall plastered by dropping the labourers from his terrace on 3rd floor to his terrace on 2nd floor. He immediately took the photographs of the same which were Ex CW-1/A to 1/C. He then made a call on 100 number and a police complaint on 30.5.2007.
9. CW-2 Praveen Tiwari stated that on 29.5.2007 the complainant had informed him about open window panes of his cars and broken flower pots on his terrace.
10. The statement of CW-2 is only hearsay in nature. So far as statement of CW-1 is concerned, the same does not inspire confidence and is an improvement. In his statement as CW-1, he has stated that on 28.5.2007 he had returned from Haridwar. He noticed about the open window panes and doors of his cars on 29.5.2007 in the morning. However, in the complaint he had stated that he had noticed the open doors/window panes on 28.5.2007 itself when he returned from Haridwar. Then in his C.R No.10/10 Minesh Parikh vs. State & Anr. 7/11 statement, he stated that he noticed about the broken flower pots and plastering on the evening of 29.5.2007 whereas in the court complaint, he stated that he had noticed these two things on 28.5.2007 itself. In his statement before Court, he stated about noticing mud in water tanks, which was not stated by him either in his police complaint or in the court complaint. In his statement, he stated that he took photographs of the plastering, but again neither in the police complaint nor in the court complaint, there is any mention about clicking of any such photographs. In his statement, he stated to have made a police call at 100 number, but neither in the police complaint nor in the complaint filed before the Court, there is any mention about this call at 100 number. The police complaint is stated to have been made on 30.5.2007 at both the places i.e. statement and the court complaint but in the said police complaint he only stated about plastering of wall without mentioning anything about broken flower pots or mud in water tanks. There is thus no coherence and consistency in the stands taken by the C.R No.10/10 Minesh Parikh vs. State & Anr. 8/11 complainant. What is common is the alleged plastering of wall. Although in the court complaint there is no mention about the photographs but even if it is presumed that the plastering was got done by the Petitioner/accused, the same was on the own wall of the Petitioner/accused and not on the wall of the complainant. It is not the case of the complainant that the Petitioner/accused had constructed the wall, endangering the safety of the complainant. It thus appears to be a too far fetched conclusion that the said act of plastering the wall would attract the penal provisions of Section 427 IPC - mischief and 453 IPC - lurking house trespass or house breaking. On the contrary, the act of the Petitioner/accused in getting his wall plastered, in the absence of the complainant, is covered by Section 95 of the IPC which is reproduced below:
"Act causing slight harm: Nothing is an offence by reason that it causes or that it is intended to cause or that it is known to be likely to cause, any harm, if that harm is so slight that no person of C.R No.10/10 Minesh Parikh vs. State & Anr. 9/11 ordinary sense and temper would complaint of such harm."
11. There is no complaint of any loss sustained by the complainant due to finding open window panes of his cars. It is also not made out as to who was responsible for that. The broken flower pots were not mentioned in the police complaint made for the first time on 30.5.2007. There was no mention in this police complaint about mud in water tanks. The police complaint only mentioned about plastering of wall by the Petitioner/accused. It has not been complained that the wall itself was constructed by the Petitioner/accused which could have been dangerous for the complainant's safety. There are innumerable acts without performing which men cannot live together in society. The act complained against cannot be treated as crime. The act complained is too trivial in nature, which needs to be noticed by law. The provisions of Section 95 IPC are based on the maxim de minimis non curat lex - law will not take notice of trifles and the parties are C.R No.10/10 Minesh Parikh vs. State & Anr. 10/11 allowed to settle such petty matters between themselves outside the Court.
12. Having an overall view of the matter, the act complained is covered by Section 95 of the IPC and hence the impugned order summoning the Petitioner/accused u/s 427 and 453 IPC cannot be sustained in the eyes of law. In the result, the Petition is allowed and the complaint filed before the Trial Court is dismissed.
13. TCR be returned back to the concerned court alongwith a copy of this order.
14. File be consigned to the Record Room.
Announced in the open court. ( Rajeev Bansal ) Dated:18.01.2012 ASJ-3/South District Saket Courts, New Delhi C.R No.10/10 Minesh Parikh vs. State & Anr. 11/11