Delhi District Court
Sanjay Awasthi vs The State on 21 April, 2017
In the Court of Sh. Ajay Kumar Jain, Additional Sessions Judge02, South District,
District Court Saket, New Delhi.
Criminal Revision No. 34/2016
In the matter of :
Sanjay Awasthi
Dy. Commissioner,
Government of Chhattisgarh,
Chanakya Bhawan, 3rd Floor,
New Delhi
..............Revisionist
Versus
1. The State
Government of NCT of Delhi
2. Jugal Kishore Ratnu,
S/o Late Sh Hari Krishna
R/o C106, South Extension,
PartII, New Delhi110049.
..................Respondents
ORDER:
1. Revisionist being aggrieved of impugned orders dated 27.02.2014, 09.02.2015, 23.01.2016 and 31.05.2016 filed the present revision petition. However, Ld. Counsel for respondent/ complainant during arguments raised an objection that all the four orders can't be challenged in one revision petition. Thereafter Ld. Counsel for revisionist restricted the present revision petition to the impugned order dated 31.05.2016 vide which revisionist application u/s 245 (2) Cr. PC r/w Section 204 Cr.P.C was dismissed.
2. Brief background facts are that a criminal complaint U/s 200 Cr.P.C was filed against accused no. 1 Mrs. Meena Tevary, accused no. 2 Mr. H. Kumar, accused no. 3 Mrs. Arunima all R/o B45, 1st Floor, Soami Nagar, Crl. No. 34/16, Sanjay Awasthi Vs. State etc. dated 21.04.2017, page 1 of 18 New Delhi and against accused no. 4 Mr. P.P.Mehta R/o B29, Soami Nagar, New Delhi and accused no. 5 Mr. Awasthy R/o B126, Sector30, Noida, UP. As per this complaint the complainant Jugal Kishore Ratnu had purchased a property from one B.A.Tevary (husband of accused no. 1) i.e., a residential house bearing no. B45, Soami Nagar, New Delhi and the possession of the ground floor portion was handed over to the complainant in May, 2005. Thereafter, a registered sale deed was executed on 28.12.2005 for purchase of the said property for a total sum of Rs. 1, 20,60,000/. However, when the possession was handed over, it is promised by deceased B.A.Tevary and his 2nd wife Mrs. Meena Tevary i.e. accused no. 1 to permit them to keep some superfluous and useless household goods in the said premises, but the said goods were not removed and in the month of March, 2006 Shri B.A. Tevary informed to have been died and some more time was sought to remove the goods but despite taking time, they have not removed the goods. However, instead of removing the goods accused no. 1 to 3 through accused no. 4 office bearer of Soami Nagar Resident Welfare Association contacted the complainant and demanded further sum of Rs. 40 - Rs. 50 lakhs, and the said accused also objected the presence of Mr. Vijender Singh and Mr. Sita Ram who were acting as a care taker of the said house.
3. On 22.07.2006, complainant was being threatened by the accused persons, therefore at around 7.52AM complainant lodged a complaint at PS Malviya Nagar, thereafter at about 8.30AM Virender Singh informed the complainant that accused no. 2 and 4 came to the property in question and tried to enter on the 1 st floor. Then complainant rushed to PS Malviya Nagar. Thereafter, he was directed to approached Sheikh Sarai police post, but his complaint was not registered and original documents of his title and possession were sought. However the complainant got suspicious of the Crl. No. 34/16, Sanjay Awasthi Vs. State etc. dated 21.04.2017, page 2 of 18 collusion between the police and the accused no. 1 to 5 as the accused persons with the aid of some other musclemen armed with stickhockey and iron rods illegal attacked the house and smashed the window pane and started beating Mr. Vijender Singh and Mr. Sita Ram who were protecting the said house, and accused P.P.Mehta was leading them to occupy and grab the said property but the police did not take any action on the complaint dt. 22.07.2006 lodged by the complainant. On the other hand, registered an FIR against Vijrender Singh, Sita Ram , Ram Swarup and complainant.
4. As per complaint, complainant was also threatened by accused no. 1 to 4 at his residence on 9.8.2006 in case he claimed any right in the said property, thereafter on 25.08.2006 the complainant visited the property 1 st time after 22.7.06 and found the goods in disturbed condition and when he tried to go to 1st floor, two gunmen stopped him and abused him and thereafter accused no. 1 to 3 also started abusing. Then Mr. Awasthy ( accused no. 5) along with accused no. 4 pushed the complainant along with the gunmen. Thereafter, the complainant sent a complaint through registered post on 30.8.2006. The complainant also filed a civil suit against accused to restrain them in interfering in ground floor and 2 nd floor portion. The complainant also filed a writ petition in the Hon'ble High Court for direction to lodge an FIR. However he was given liberty by the Hon'ble High Court to file the complaint before the concerned court. Thereafter the present complaint is filed.
5. The present complaint was filed on 15.01.2007, thereafter vide order dated 16.01.2007, Ld. MM sought the action taken report from the police. On 20.01.2007 an action taken report over the complaint of complainant Jugal Kishore filed by SI Sunil Kumar of Malviya Nagar wherein he submitted that during inquiry he found that on the first floor of the said property one lady Meena Tiwari is residing and her household articles on the night of Crl. No. 34/16, Sanjay Awasthi Vs. State etc. dated 21.04.2017, page 3 of 18 21/22.07.2006 were removed in her absence and on the basis of her complaint, an FIR was registered and it is also found during inquiry that accused Virender, Sita Ram, Ram Swaroop on the instructions of Jugal Kishore removed those articles. IO also submitted in his report that an complaint was also made at around 7.50 am in the morning by complainant Jugal Kishore that the said property was in possession and Mrs. Meena Tiwari is threatening him to dislodge from the property, however the said allegations were not found correct, hence no action was taken on his complaint.
6. Pursuant to filing of action taken report by the police, Ld. MM vide order dated 07.03.2007 dismissed the application u/s 156(3) Cr.P.C for registration of FIR filed by the complainant and posted the matter for complainant evidence. Complainant during pre summoning evidence examined himself as CW1, CW2 Sunil Kumar Meena Jr. Judicial Assistant and CW 3 Balbir Singh Registrar Mehrauli. CW1 Jugal Kishore Ratunu (complainant) in his testimony stated that he has purchased the property no. B/45, Soami Nagar for a total sum of Rs. 1,20,60,000/ and the possession of the ground floor was handed over to him in May 2005 and thereafter the remaining possession was handed over after execution of sale deed. However, after execution of the Sale deed and handing over the possession Sh Bishan Avtar Tewari requested him to keep some household goods on humanitarian ground in the room at second floor with undertaking to remove the same and letter dated 28.12.2005 in this regard was also written by him, thereafter he died in March 2006 and Ms. Meena Tiwari sought some time to remove her household goods kept at the second floor and in the meanwhile, intentions of Meena Kumari in collision with her soninlaw H. Kumar, her step daughter Arunima and two associates PP Mehta and one Mr. Awasthi whose full name is not known to him hatched the criminal Crl. No. 34/16, Sanjay Awasthi Vs. State etc. dated 21.04.2017, page 4 of 18 conspiracy to extract the huge amounts to the extent of 40 to 50 lakhs and if the said amount is not paid to him then they will not allow him to leave peacefully.
7. He also deposed that Virender Singh his brother in law, Sita Ram and Ram Swaroop his employees were living in said property as caretakers, thereafter on 22.07.2006 he was threatened by the 5 aforesaid accused persons who are accused in the present complaint and at around 7.52 am, he lodged a complaint with the police on 22.07.2007, however no action was taken on his complaint, thereafter at around 8.30 am Sh Virender Singh his brother in law who was also staying in the house had informed him that some persons including H. Kumar, Mrs. Arunima Kumar and PP Mehta had come to their property and tried to forcefully enter the first floor, thereafter he immediately reached the property and found accused no. 2 to 4 quarreling with Virender Singh and these accused were found with some other persons who had formed unlawful assembly armed with sticks, hockeys and iron rods with common object to enter into the house and grab the house and smash the windows. However, police instead of taking action against them, arrested Virender Singh, Sita Ram and Ram Swaroop in false case and the accused persons taking advantage of illegal detention of Virender and Sita Ram committed trespass in first floor and committed theft of his articles. However, due to fear of arrest, he did not went to his property for a long time, thereafter on 25.08.2006 he went to his property for the first time on 22.07.2006 and shocked to see his household goods in disturbed condition and thereafter when he tried to go to the first floor, two gunmen posted at staircase stopped him, thereafter immediately accused no.1,2 and 3 came to the spot and started abusing him, and accused Awasthi also came and joined them, and he was threatened for his life and they had taken the possession of first floor and also intended to take the remaining possession. Then, he sent Crl. No. 34/16, Sanjay Awasthi Vs. State etc. dated 21.04.2017, page 5 of 18 a complaint to the police on 30.08.2006 through registered post as police refused to enter his complaint when he went to register the same personally. Thereafter he also filed a civil suit in High Court.
8. Presummoning evidence in this case closed on 21.10.2010, thereafter matter was posted for arguments on summoning of accused persons. Thereafter vide order dated 28.04.2012, the accused persons were summoned for commission of offence u/s 448/380/506/34 IPC. During proceedings, some counsel appeared on behalf of accused Mr. Awasthi and filed the memo of appearance however not filed any vakalatnama, thereafter vide order dated 05.08.2014 Ld. MM observed that accused Mr. Awasthi is not found served, therefore complainant was directed to furnish complete address of accused no.5.
9. On 29.09.2014, complainant filed the full name and address of the accused no.5 ie Mr. Sanjay Awasthi, 306 Antariksh Green, Indirapuram, Ghaziabad; also at office of Resident Commissioner, Chhatisgarh Bhawan, 3 rd floor, Chanakya Bhawan, Chanakya Puri, New Delhi; also at, c/o H. Kumar, first floor, B45, Soami Nagar, New Delhi. Thereafter, summons were issued to accused no.5 Mr. Awasthi and on appearance on 09.02.2015, accused Sanjay Awasthi filed an application u/s 245(2) r/w sec. 204 Cr.P.C for dropping of the proceedings. Complainant was also directed on said date to file the fresh memo of parties. The reply to the application u/s 245(2) Cr.P.C filed by the complainant on 28.09.2015. Thereafter, the application u/s 245(2) Cr.P.C r/w 204 Cr.P.C was dismissed vide impugned order dated 31.05.2016.
10. In application u/s 245(2)/204 Cr.P.C, revisionist raised the plea that the cognizance was taken only against accused no.2 to 4 and no order of cognizance was against one Mr. Awasthi and the issuance of process against accused Awasthi appears to be issued inadvertently. It is also averred in the Crl. No. 34/16, Sanjay Awasthi Vs. State etc. dated 21.04.2017, page 6 of 18 said application that neither the complaint nor in the statement of CW1 or in the summoning order any offence is disclosed to be committed by the present revisionist and the identity of the accused Mr. Awasthi was also not established at any stage till the issuance of the process. It is also averred that on the day of incident the revisionist Mr. Sanjay Awasthi being in government service was on VVIP duty. Ld. Counsel for the revisionist during arguments also emphatically argued that present accused has no connection with other accused persons as he got married to the daughter of accused H.Kumar only in the year 2008, and this incident occurred in the year 2006, at that time he was not at all related to accused H.Kumar.
11. Respondent in his reply to this application outrightly objected to the plea that the present accused Sanjay Awasthi is inadvertently summoned in the present case. It is also averred that the role attributed to accused no.4 & 5 being the associates of other accused and they all aided and abetted with some other musclemen grabbed and attacked the property of the respondent and beaten Virender and Sita Ram and committed criminal trespass on the first floor. The reference of accused Mr. Awasthi was also mentioned in the summoning order and the revision petition against the summoning order filed by accused 1,2 & 3 has been dismissed by the Ld.Spl. Judge vide order dated 09.05.2014. It is also averred that the complaint u/s 2(d) Cr.P.C can be filed against the unknown person and on getting the full name and address of the accused no.5 Mr. Awasthi, the summons were issued to the present accused Sanjay Awasthi. It is also averred that some counsel filed memo of appearance for Mr. Awasthi, however later that counsel disappeared, furthermore the stand of the accused that he was not present in the defence of the accused and could not be considered at this stage. It is further averred that the present application is not maintainable as in the garb of present application the revisionist is trying to review the summoning order. It is also Crl. No. 34/16, Sanjay Awasthi Vs. State etc. dated 21.04.2017, page 7 of 18 averred that at this stage, only prima facie case is to be seen, whether the case is made out for summoning the accused or not. Section 245(2) Cr.P.C is an extra ordinary remedy and can only be followed in case the charge is groundless, however there is nothing on record which could suggest that the charge is groundless.
12. Ld. Trial court vide impugned order dated 31.05.2016 negativated the contention of the accused Sanjay Awasthi that summons were issued to the present accused inadvertently. Furthermore, also observed that there are specific allegations against the accused and the veracity of the allegations cannot be judged at this stage. Furthermore, the plea of the defence that the accused is not at spot and being at official function are all matters of trial and cannot be considered at this stage. On these grounds, the application u/s 245(2) r/w 204 Cr.P.C of the accused was dismissed.
13. Ld. Counsel for the revisionist during arguments raised plea that vide summoning order the present accused is not summoned and as per memo of parties, one Mr. Awasthi is stated to be accused no.5 and present accused cannot be equated with the said Mr. Awasthi. Ld. Counsel further submits there are number of litigations pending between the inlaws of present revisionist and the respondent, and due to that the present revisionist is dragged into the present case, but the present accused is not made party in any other proceedings except the present complaint. It is further submitted that the incident belongs to 2006, however accused at that time even do not know the other accused as his marriage was solemnised on 02.10.2008. Furthermore, the present accused on the date of incident was Chief Protocol officer and present on VVIP duty. It is further submitted that there are glaring inconsistencies and contradictions in the complaint and the pre summoning evidence and no offence is disclosed against the present accused. In the complaint the present accused as Mr. Awasthi is described Crl. No. 34/16, Sanjay Awasthi Vs. State etc. dated 21.04.2017, page 8 of 18 as 'group mafia and land grabber', however the present accused is Government servant and has nothing to do with the family of the accused H. Kumar at the time of incident. Ld. Counsel further submits that after 8 years of the incident, the complainant/ respondent has disclosed the name of the present accused with particulars that too without due procedure. Ld. Counsel submits that by way of this procedure one Mr. Awasthi with different name and address cannot be substituted as present accused with different name and address. Ld. Counsel further submits that on appearance immediately the application u/s 245(2) Cr.P.C for dropping of proceedings filed and that application is very much maintainable. Ld. Counsel in this regard relied upon the judgment of Madhya Pradesh High Court in case titled "Mahender Kumar Vs. Chander Shekhar, 2001 Cr.L.J 3455 MP", in which it is observed that magistrate can discharge the accused u/s 245(2) Cr.P.C even before recording of the evidence. It is further observed that if the accused able to show that the allegations in the present complaint are inherently improbable or false or do not constitute offence then the accused can be discharged. Ld. Counsel in this regard also relied upon the judgment of Hon'ble Bombay High Court in case titled "Luis DE Piedede Lobe Vs. Mahadev Vishwanath Parulkar, Gopal Chauhan Smt. Satya MANU/MP/0308/2001, Vishwanath Jiloka & Ors. Vs. First Muncif Lower Criminal Court & Anr. MANU/UP/0569/1989". Ld. Counsel also relied upon the judgment of Apex court in case titled 'Ajoy Kumar Ghose Vs. State of Jharkhand & Anr., AIR 2009 SC 2282, MANU/SC/0406/2009", wherein it is observed that Magistrate has power to discharge the accused u/s 245(2) Cr.P.C at any previous stage even before the evidence is led but Magistrate has to record the finding that the charge is groundless. Ld. counsel also relied on the judgment of Allahbad High Court in case titled "Nanhe Lal & Crl. No. 34/16, Sanjay Awasthi Vs. State etc. dated 21.04.2017, page 9 of 18 Ors. Vs. State of UP, MANU/UP/0207/2014 and Mahesh Kumar and Ors. Vs. State of UP, MANU/UP/1285/2016". Ld. Counsel submits that no case is made out against the accused and charge against the accused is groundless.
14. Ld. Counsel for the respondent submitted that there are specific allegations against accused Mr. Awasthi and therefore all the accused are summoned. Ld. Counsel further submits that accused no.1, 2 & 3 have challenged the summoning order in revision, however the said revision is dismissed by the Spl. Judge (PC Act) vide order dated 09.05.2014. Ld. Counsel further submits that the name of the present accused as Mr. Awasthi has been transpired since beginning when the complaint were made to the police . Ld. counsel further submits that on receiving the full name and the complete address the summons were again issued to the present accused and prior to that also he appeared through one advocate by way of memo of appearance. However, Ld. Counsel for the revisionist vehemently denied of engaging any counsel and submitted that on receiving the summons at first instance the present accused/ revisionist appeared and filed the application u/s 245(2)/204 Cr.P.C. Ld. Counsel for the respondent further submitted that the defence of the accused that he do not know the other accused at the time of incident or he was on government duty cannot be considered at this stage. Ld. Counsel further submits that the complaint can be filed even against the unknown person. Furthermore, relied upon the judgment of Allahbad High court in case titled "Suleman & Ors. Vs. State of UP, application no. 34350/2013 dated 30.09.2013", for the proposition that application u/s 245 (2) Cr.P.C is only maintainable in some peculiar circumstances only.
15. Arguments heard. Record perused.
16. At the outset, Ld.counsel for the respondent raised an objection that the present revisionist has not challenged the summoning order and by resorting Crl. No. 34/16, Sanjay Awasthi Vs. State etc. dated 21.04.2017, page 10 of 18 to an application u/s 245(2) Cr.P.C without any further progress in the case cannot seek discharge, however this argument of the Ld. Counsel or the respondent do not appear to hold good in law, as Apex court in case titled "Ajoy Kumar Ghosh (Supra)" , in para 18 categorically observed as under:
".......The situation under Section 245 (2) Cr.P.C, however, is different, as has already been pointed out earlier. The Magistrate thereunder, has the power to discharge the accused at any previous stage of the case. We have already shown earlier that that previous stage could be from Sections 200 to 204 Cr.P.C and till the completion of the evidence of prosecution under Section 244 Cr.P.C. Thus, the Magistrate can discharge the accused even when the accused appears, in pursuance of the summons or a warrant and even before the evidence is led under Section 244 Cr.P.C makes an application for discharge".
17. Thus, the revisionist is at liberty to raise all the grounds in his application for discharge u/s 245(2) Cr.P.C from the stage of 200 to 204 Cr.P.C including the summoning order. The Ld. Counsel for the revisionist at first raised an objection that the accused no.5 Mr. Awasthi is not the revisionist whose name is Sanjay Awasthi and not Mr. Awasthi. Ld. Counsel submits Mr. Awasthi is made as an accused no. 5 having address as per complaint resident of B126, Sector 30, Noida, UP, however the present accused/ revisionist Sanjay Awasthi never resided at Noida. Ld. Counsel submits that Mr. Awasthi mentioned in the complaint which is filed on 15.01.2007 and this Mr. Awasthi remained as Mr. Awasthi till the passing of summoning order dated 28.04.2012 and the said Mr. Awasthi was never served, therefore vide order dated 05.08.2014 Ld. Trial court observed that the said Mr. Awasthi is not found served, therefore directed the complainant/ respondent to furnish his complete address, however instead of furnishing the complete address, the complainant also furnished the name and address Crl. No. 34/16, Sanjay Awasthi Vs. State etc. dated 21.04.2017, page 11 of 18 of accused no.5 as that of present revisionist on 29.09.2014. Ld. Counsel submits that the offence alleged to be occurred in the year 2006 and till the filing of an application dated 11.09.2014, nowhere the name of the present revisionist appeared. Ld. Counsel submits that in the application dated 11.09.2014 which is considered on 29.09.2014, the revisionist name and addresses appeared however nowhere in the said application it is mentioned that how "Mr. Awasthi r/o B126, Sector 30, Noida, UP" becomes the present revisionist "Mr. Sanjay Awasthi, 306 Antariksh Green, Indirapuram Ghaziabad; office of resident Commissioner Chhatisgarh Bhawan, 3 rd Floor, Chanakya Bhawan, Chanakya Puri, New Delhi; c/o H. Kumar, first floor, D 45, Soami Nagar, New Delhi". Ld. Counsel submits that complainant neither in the complaint nor in his testimony has anywhere stated that Mr. Awasthi is Sanjay Awasthi. Ld. Counsel also submitted that even in the complaints made prior to the filing of present complaint, the name of Mr. Awasthi is not mentioned as Sanjay Awasthi. Ld. Counsel submits that the name of Sanjay Awasthi cannot be substituted in criminal proceedings in the manner substituted as in present case.
18. Ld. Counsel for the respondent on the other hand submitted that on getting the knowledge of the full address and name accused no.5 Mr. Awasthi is substituted as Sanjay Awasthi and there is no illegality in that, and this is the proper procedure. Ld. Counsel further submits that the complaint could be filed against even the unknown person and on getting the knowledge of the particulars, the name of that person can be substituted.
19. Now, the main issue before this court whether Mr. Awasthi mentioned as accused no.5 in the complaint can be read as Sanjay Awasthi. The name of accused no.5 Mr. Awasthi first appeared in the complaint dated 30.08.2006 sent to police, wherein it is mentioned that on 22.07.2006 a false complaint is lodged by accused Mrs. Tewari at the instance of Mr. Kumar (accused Crl. No. 34/16, Sanjay Awasthi Vs. State etc. dated 21.04.2017, page 12 of 18 no.2), Mr. Mehta (accused no.4) and Mr. Awasthi (accused no.5), a group of Mafia/ landgrabbers active in the area. However, in that complaint also mentioned an incident of 25.08.2006 but in the said incident only mentioned that one tough looking guy came and there is no mention of any Mr. Awasthi. Thereafter, present criminal complaint was filed in court on 15.01.2007 and till the filing of the complaint also there is no mention about the particulars of Mr. Awasthi. Thereafter, the statement of the complainant (as CW1) was recorded on 25.09.2010 in that statement also there is no details of Mr. Awasthi were mentioned. The details of Mr. Awasthi as mentioned in title of complaint is resident of B126, Sector30, Noida. There is nothing even averred in the proceedings conducted from 2006 to 2014 that Mr. Awasthi is anyway related or soninlaw of H. Kumar. In the background of facts, it appears unnatural that the complainant could not know the relationship of Mr. Awasthi from 2006 to 2014. Though the defence of the accused that he came to know the family of H.Kumar after his marriage in 2008 with his daughter and therefore no connection whatsoever with the accused family at the time of incident in 2006 cannot be considered at this stage, but to appreciate the contention that how Mr. Awasthi becomes Sanjay Awasthi this fact could be used for colateral purpose, particularly when since 2006 to 2014 the name of the present revisionist was not revealed by the complainant in any of the proceedings and in 2014 just by way of application, complainant introduced the name of Mr. Awasthi as Sanjay Awasthi. Accused Sanjay Awasthi is found to be a government servant and not anyway found to be related with property dealing or landgrabbing. The Awasthi as mentioned in the complaint or in the statement appears to be a person as a landgrabber and a criminal and that particulars do not in any manner match with the present revisionist.
20. At this stage, it is pertinent to rely upon the judgment of Apex court in case Crl. No. 34/16, Sanjay Awasthi Vs. State etc. dated 21.04.2017, page 13 of 18 titled "Pepsi Foods Ltd. & anr. Vs. Special Judicial Magistrate & Ors., 1998(5) SCC 749", where in Supreme Court categorically held 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 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".
21. Thus, the summoning of the accused is not an empty formality. The manner in which Mr. Awasthi becomes Sanjay Awasthi calls for an interference by this court as there is nothing on record which could make Mr. Awasthi as Sanjay Awasthi. Mr. Awasthi was not in any way as an accused stated to be the relative of accused H.Kumar at the time of offence or consequent to that. Even in the application for substitution of name from Mr. Awasthi to Sanjay Awasthi nothing came on record how this name is brought on record, what makes complainant to decipher Mr. Awasthi into SanjayAwasthi after about 8 years of the incident. There is nothing on record that any subsequent statement on oath was recorded of the complainant to suggest that in what manner he came to know that Mr. Awasthi is infact Mr. Sanjay Awasthi. It Crl. No. 34/16, Sanjay Awasthi Vs. State etc. dated 21.04.2017, page 14 of 18 is also not brought on record that how Mr. Awasthi resident of B126, Sector 30, Noida becomes Mr. Sanjay Awasthi resident of 306, Antariksh Green, Indirapuram; office of resident Commissioner, Chhatisgarh Bhawan, Chanakya Puri; C/o H.Kumar, First Floor, Soami Nagar. Therefore, summoning of the present revisionist in this manner do not anyway appear to be correct.
22. Now, the next contention of the Ld. counsel for the revisionist that even no grounds were made for summoning of accused no.5 Mr. Awasthi. Before appreciating this contention, the certain background facts in brief is to be considered. The property in dispute ie B45, Soami Nagar was purchased by the complainant and possession of ground floor was handed over in May 2005, thereafter the sale deed was executed for a total sum of Rs. 1,20,60,000/, however as per the complainant's version, the accused no.1 left some articles while handing over the possession which they have not removed and in the garb of said articles, the accused no.1 to 3 with the assistance of other accused tried to grab the property and in this regard a complaint was made to the police, however police in an action taken report u/s 156(3) Cr.P.C filed a report that during investigation, they found the first floor is in possession of the accused no.1 and therefore not registered any case. Whereas the contrary version of the complainant is that he is owner of the entire property and in this regard also filed a civil suit and also exhibited the documentary evidence.
23. This court is however not concerned with the title and nature of the possession, however only on the factum how the offence is committed and about the persons who committed the offence. For prima facie appreciation of the said fact, the court has to evaluate at this stage whether there is sufficient ground for proceeding against the present revisionist exists on the basis of the material on record ie the complaint filed in the court, complaints Crl. No. 34/16, Sanjay Awasthi Vs. State etc. dated 21.04.2017, page 15 of 18 lodged before the police and the testimony of CW1 and other witnesses.
24. The incident of assault and criminal trespass banked upon the incidents as per the material on record occurred on 22.07.2006 and 25.08.2006. In criminal complaint filed before the court complainant stated that on 22.07.2006 he was threatened by the accused persons therefore at around 7.52 am he lodged a complaint. This complainant in his testimony as CW1 also stated that he was threatened by 5 persons who are accused herein at around 7.52 am and then he lodged a complaint with the police mark A. As per his testimony as well as in the criminal complaint he stated that he was threatened by all the 5 accused persons, however in the complaint mark A he only stated that Mr. Kumar and Mrs. Meena Tewari were threatening him and demanding more money and in this regard they have recently visited and threatened him. In this complaint mark A, he nowhere stated that the present revisionist also threatened him. If this complaint is seen in reference to the colateral incident, on the other hand suggests infact an FIR was filed against the present complainant and his other associates. Complainant in his criminal complaint also stated that on the same day 22.07.2006 he was informed by Virender Singh his brotherinlaw that accused no. 2 to 4 had come to the property and tried to forcibly enter on the first floor, however at this place also he has not mentioned the name of accused no.5, though as inference in later part stated that all 5 accused persons tried to forcibly enter in their house and smashed the windows etc. This witness in his testimony nowhere stated that at around 8.30 pm, accused no. 5 accompanying accused no.2 to 4 tried to grab the property and smash the windows. There is no mention of accused no.5 over this incident at around 8.30 in the testimony of CW1.
25. The next incident is of 25.08.2006. In the criminal complaint filed in the court he stated that when he visited his property on 25.08.2006 he found his Crl. No. 34/16, Sanjay Awasthi Vs. State etc. dated 21.04.2017, page 16 of 18 goods in disturbed conditions, thereafter two gunmen stopped him from going upstairs, then accused no. 1 to 3 hurled abuses over him and accused Mr. Awasthi and accused no.4 pushed the complainant and threatened him to get lost, and in this regard he made a complaint dated 30.08.2006. Now let me look at complaint dated 30.08.2006. In the complaint dated 30.08.2006, he has also narrated the incident of 25.08.2006, however not named accused Mr. Awasthi but only stated that one tuff looking person alongwith accused no.4 PP Mehta joined the other accused and threatened him. Therefore the name of the Mr. Awasthi in the overt committed on 25.08.2006 do not found mention in the contemporaneous complaint dated 30.08.2006. Furthermore, PW Virender Singh and Sita Ram are also listed as a complainant witness alongwith complainant alleged to be assaulted in the said incident, however they are not even examined during pre summoning evidence.
26. At this stage, it is pertinent to take reference of judgment of Delhi High Court in case titled "Rakesh Kumar Gupta Vs. State, Crl. Rev. Petition no. 500/2004, dated 18.09.2009, 2009 Law Suit (Del) 1057", wherein the court discharged the accused persons on the ground that their name is not mentioned at the first instance despite knowledge. In that case the Hon'ble High Court in para 27 observed as under:
" Thus criminal proceedings should not be set into motion as a matter of routine. Courts ought not to forget that criminal trial not only exposes the person to a depleted reputation in the society but is also cumbersome, long drawn out, and ruinous in terms of time and money. Litigation should not be used as a tool of harassment against another and a person should not unnecessarily be made to go through the rigours of trial".
27. Prima facie, there are apparent inconsistencies in the role attributed to accused no. 5 Mr. Awasthi on cumulative reading of the material on record.
Crl. No. 34/16, Sanjay Awasthi Vs. State etc. dated 21.04.2017, page 17 of 18 The criminal proceeding should not be set into motion as a matter of routine as observed by Hon'ble High Court and it is a very cumbersome process and should not be used as a tool of harassment. The court is empowered to do the limited evaluation at this stage of the materials and documents on record to prima facie find out whether sufficient ground exists for purpose of proceeding further. The allegations disclosing offence as committed limited to the incidents dated 22.07.2006 and 25.08.2006, however on limited sifting of the evidence, prima facie sufficient grounds do not exist for proceeding further against accused no.5 Mr. Awasthi, therefore the accused no. 5 Mr. Awasthi is entitled to be discharged.
28. Ld. Counsel for the respondent submitted that the revision petition filed by accused no.1,2, 3 challenging the summoning order was already dismissed, therefore there is no ground exist for the present revisionist to challenge the summoning order. This plea is not tenable as the said summoning order is not challenged by the present revisionist.
29. In view of the above discussion, prima facie no sufficient material or ground exist for proceeding further against the accused Sanjay Awasthi, both on the factum that there is no concrete material on record which suggest that Mr. Awasthi as mentioned in the complaint is present revisionist and also on merits no sufficient material found on record for proceedings against accused Mr. Awasthi. In view thereof, the impugned order dated 31.05.2016 set aside. Revisionist / accused Sanjay Awasthi thus discharged from the case. Accordingly, revision petition allowed. Copy of this order alongwith TCR be sent back to trial court forthwith.
Announced in the open Court (AJAY KUMAR JAIN)
On 21st day of April, 2017 ASJ02 (South)
District Court Saket / New Delhi
Crl. No. 34/16, Sanjay Awasthi Vs. State etc. dated 21.04.2017, page 18 of 18