Delhi District Court
Terra Real Estate Pvt. Ltd vs State Of Delhi on 5 April, 2022
IN THE COURT OF SHRI MOHINDER VIRAT
ADDITIONAL SESSIONS JUDGE04 & SPECIAL JUDGE (NDPS) ACT
SOUTH EAST DISTRICT: SAKET COURT: NEW DELHI
CA No. 613 of 2019
Terra Real Estate Pvt. Ltd.
B7/1, Safadarjung Enclave Extension,
New Delhi though its Director KA Kabra ..........Revisionist
Vs.
1 State of Delhi
Through SHO PS Greater Kailash, New Delhi
2 Mr. Vijay Tokas S/o Sh. Khali Ram
R/o 109, D Munirka, New Delhi
3 Sayed Shaid Imam S/o Syed Abid Imam
R/o P.S Kotwali Patna, Teamitago Building, Opposite LIC
Frozar Road, Patna (Bihar)
4 Syed Hasan Francis S/o Late Syed Askhari Hadi Ali
Ali Augustine Imam Alias Titu Imam
R/o Hazari Bagh, Jharkhand.
..........Respondents
Instituted on : 03.12.2019
Argued on : 31.03.2022
Decided on : 05.04.2022
Terra Real Estate Pvt Ltd v. The State & Ors. CR No. 613 of 2019 1/13
JUDGMENT
1 This is an appeal u/s 454 Cr.PC against the order dated 02.11.2019 passed by Ld. MM04 South East, Saket Courts, New Delhi, in case FIR Number 252/2002, titled "State Vs. Harish Reddy & Ors." PS, GKI whereby the application u/s 452 Cr.PC filed on behalf of the appellant, praying for directions to SHO concerned for restoration of vacant and peaceful possession of property bearing number A4, Chirag Enclave, New Delhi, has been dismissed.
2 Notice of the appeal was given to the respondents.
3 The present appeal has been filed on the grounds that: (i)the judgment & order is illegal in as much as the application moved by the appellant/applicant u/s 452 Cr.PC, whereas the Ld. Lower Court treated the same u/s 456 Cr.PC. (ii) once the Ld. Court has found that the appellant/applicant has purchased the property in question from Late Faiz Murtaza Ali,(the earlier owner), vide documents like Agreement to sell, Regd. GPA, Payment receipts, Regd. Will, SPA, Affidavit and Possession Letter, there was no impediment to restore the possession to the Terra Real Estate Pvt Ltd v. The State & Ors. CR No. 613 of 2019 2/13 appellant/applicant u/s 452 Cr.PC. (iii) after 03.01.2019 that is day Harish Reddy, accused , died the possession stood diverted to the rightful owner appellant/applicant herein by operation of law. (iv) in the eyes of law the property in question A4, Chirag Enclave would be deemed vacant since 03.01.2019, the possession of which should be restore to the appellant/applicant in exercise of power u/s 452 Cr.PC. (v) the question before the Ld. MM was about the possession of the property and not it's title.
(vi) the Ld. Lower Court has failed to appreciate the judgment & Order passed in this very case by the Hon'ble Supreme Court in 2009 (5SSC, 5287), wherein Para 12, 22 and 43 at page no 535, 537 and 543 read as hereunder:
"(12) Indisputably, Syeda on or about 09.09.1999 executed a will bequeathing her right, title and interest in the property in favour of Mr. Faiz Murtaza Ali ("Faiz", for short). She died on 22.02.2004 and after her death Faiz claimed himself to be her legal heir on the strength of the said registered will dated 09.09.1999.
"(22) It is, however now well settled that ordinarily a criminal Terra Real Estate Pvt Ltd v. The State & Ors. CR No. 613 of 2019 3/13 proceeding will have primacy over the civil proceeding. Precedence to a criminal proceeding is given having regarded to the fact that disposal of a civil proceedings ordinarily takes a long time and in the interest of justice the former should be disposed of as expeditiously as possible. The law in this behalf has been laid down in a large number of decisions. We may notice a few of them".
"(43) the FIR was lodged not only in regard to forgery of the will but also on the cause of action of a trespass. The appellant admittedly is facing trial under section 420, 468 and 448 IPC. it is, thus, possible that even if the will is found to be genuine and that no case under section 468 IPC is found to have been made out, the appellant may be convicted for commission of other offences for which he has been charged against, namely, trespass into the property and cheating. If it is found that the appellant is guilty of trespass, he may be asked to hand over possession of the premises in question to the complainant". (vii) the Ld. Lower Court has also took no notice of para 80, 81 & 82 of judgment & Order dated 10.09.2014 by Hon'ble High Court of Delhi in Criminal MC. 4485/2013 which reads as hereunder: "80. upon Terra Real Estate Pvt Ltd v. The State & Ors. CR No. 613 of 2019 4/13 conclusion of inquiry or trial the court may make an order U/s 452 Cr.PC for the disposal by destruction, confiscation for delivery to any person claiming to be entitled for possession thereof or otherwise". "81. for delivery of any property to any person claiming to be entitled thereto, the court may release property unconditionally or impose a condition of a bond with or without sureties to restore such property to the court upon modification/settings aside of the order in appeal or revision. "82. The aforesaid order shall not be carried out for a period of two months or when an appeal is presented, until disposal of the appeal except in case of live stock or property subject to speedy and natural decay." (viii) the Ld. Lower Court has also not followed the law laid down in criminal appeal no. 1481/2019, "Navada Properties Pvt.
Ltd. Through its Director Vs. State of Maharastra" and Civil Appeal no. 4527/2009, "Puna Ram Vs. Moti Ram", para 12 whereof reads as under. "8 it is thus clear that so far as the Indian Law is concerned the person in peaceful possession is entitled to retain his possession and in order to protect such possession he may even use the reasonable force to keep out a trespasser. A rightful owner who has been wrongly dispossessed of land may Terra Real Estate Pvt Ltd v. The State & Ors. CR No. 613 of 2019 5/13 retake possession if he can do so peacefully and without the use of unreasonable force if the trespasser is in the settled possession of the property belonging to the rightful owner. The rightful owner shall have to take recourse of law; he can not take the law in his own hands and evict the trespasser or interfere with the possession. The law will come to the aid of a person in peaceful and settled possession by injuncting even a rightful owner from using force or taking law in his own hands and also rightful owner(of course subject to the law of limitation).if the later has dispossessed the prior possessor by use of force, in the absence of proof of better title possession or prior peaceful settled possession is itself evidence of title. Law presumes the possession to go with the title unless rebutted. The owner of any property may prevent even by using reasonable force, a trespasser from an attempted trespass, when it is in the process of recurring, intermitent, stray, or casual in nature or has just been committed, while the rightful owner did not have enough time to have recourse of law. In the last of the cases the possession of the trespasser, just entered into would not be called as one acquiesced to be the true owner.
Terra Real Estate Pvt Ltd v. The State & Ors. CR No. 613 of 2019 6/13 4 The brief facts of the case are that on the complaint dated 05.08.2002 of one Faiz M Ali, an attorney of Mrs. Saiyeda Mehdi Imam, an FIR No. 252/02, State Vs. Harish Reddy & Ors was registered at PS Greater Kailash, u/s 420/468/448/34 IPC. The allegations are that property no. A04 Chirag Enclave, New Delhi was originally alloted to and registered in the name of Mrs. Saiyeda Mehdi Imam in the year 1964. she transferred the same to her daughter Ms. Shamim Amena Imam in the year 1973. Ms. Shamim Amena Imam expired on 23.05.1998 as an unmarried lady. Therefore, the said property reverted back to Mrs. Saiyeda Mehdi Imam.
It is further alleged that a forged and fabricated Will purported to have been prepared by Ms. Shamim Amena Imam just 20 days prior to her death and the property in question was bequeathed in favour of one Tutu Imam vide will dated 03.05.1998, but no such will was executed by Ms. Shamim Amena Imam. On the basis of the aforesaid forged will, all the accused persons forcefully entered into the aforesaid property in the middle of 1999 and Tarakant Jha was kept as the caretaker of the property who alongwith his family was residing in the said property since 1973. On 01.08.2002 one Terra Real Estate Pvt Ltd v. The State & Ors. CR No. 613 of 2019 7/13 Sunil, s/o Tarakant Jha, the alleged caretaker of the property handed over one letter to the complainant which was allegedly address to Mrs. Saiyeda Mehdi Imam and narrated the entire incident of forcible possession of the property in question by the accused persons.
After investigation chargesheet against the accused persons namely Syed Akshari Hadi Ali Augustine Imam @ Tutu Imam, Syed Hasan Francis Imam, Harish Reddy and Jag Parvesh Sahni for the offences u/s 420/468/448/34 IPC was filed, while the remaining accused persons including Shahid Imam and Vijay Tokas were kept in column number 2 in Chalan as not chargesheeted by the police. However, all the aforesaid accused persons were summoned in this case for the offences u/s 420/468/448/471/120B IPC vide order dated 01.07.2004.
During the course of trial Syed Askhari Hadi Ali Augustine Imam @ Tutu Imam, Harish Reddy and Jag Parvesh Sahni expired and proceedings against them stood abated. The remaining accused persons were discharged vide order dated 07.06.2019.
5 Thereafter, the application u/s 452 Cr.PC were filed by the Terra Real Estate Pvt Ltd v. The State & Ors. CR No. 613 of 2019 8/13 revisionist herein which was dismissed by the Ld. Trial Court on 02.11.2019 on the following grounds:
"Now in the present case, no final decision of conviction has been given by the court, whereas the alleged main accused had already expired and proceedings qua them stood abated. The court had no occasion to even give any findings on the aspect of alleged forged Will and there was no evidence before the court to decide on the point of validity of the Will allegedly executed by the previous owner in respect of the property in question and alleged to have been forged by the accused who have since already expired. The fact that a civil suit qua the property in question is already pending adjudication further makes it a strong case where the court ought not to exercise its discretion even u/s 452 Cr.PC as prayed by the applicant despite there being specific provision for the relief claimed by the applicant u/s 456 Cr.PC as aforesaid."
6 I have heard the Ld. Counsel for the appellant, Ld. Addl.PP for the State/Respondent No. 1 as well as Ld. Counsel for the other respondents and I have also carefully gone through the entire record placed before me. 7 As already stated above, charge sheet for the offences punishable u/s 420/468/448/34 IPC against the accused persons namely Syed Askhari Hadi Ali Augustine Imam @ Tutu Imam, Syed Hasan Francis Imam, Harish Terra Real Estate Pvt Ltd v. The State & Ors. CR No. 613 of 2019 9/13 Reddy and Jag Parvesh Sahni and remaining accused persons namely Shahid Imam and Vijay Tokas were kept in column number 2 in Challan as not charge sheeted by the police. However, all the aforesaid accused persons were summoned by the Ld. MM concerned vide order dated 01.07. 2004 in this case for the offences u/s 420/468/448/471/120B IPC. 8 It is a matter of record that all the accused persons who had allegedly forged the documents ( Syed Akshari Hadi Ali Augustine Imam @ Tutu Imam, Syed Hasan Francis Imam, Harish Reddy and Jag Parvesh Sahni) expired during trial and the proceedings against them stood abated. No final decision of conviction or acquittal has been given by the Court qua the aforesaid accused persons. Since the main accused persons have expired, the question of validity of the alleged forged Will in question qua the disputed property could not be decided by the Ld. Trial Court.
9 To my mind, section 452 CrPC applies to the disposal of the property, after conclusion of inquiry or trial and it refers to the property which is produced before the Court or which is in its custody or regarding which an offence appears to have been committed or which has been used in Terra Real Estate Pvt Ltd v. The State & Ors. CR No. 613 of 2019 10/13 the commission of an offence. The condition precedent for exercise of jurisdiction under section 452 CrPC is that the inquiry or trial in any criminal Court is concluded. In other words, in case inquiry or trial has not concluded, but otherwise come to an end, it cannot be said that section 452 will come into operation. Section 452 CrPC, therefore, applies to all properties produced before the Court in an inquiry or trial. The word 'concluded' used in section 452 obviously implies that it is the ultimate and final conclusion either by way of conviction, acquittal or discharge. Abatement of proceedings because of death of the sole accused cannot be termed as conclusion on inquiry or trial thereby investing the Magistrate with jurisdiction to deal with the property under section 452 of the Code. Section 452, therefore, applies to all properties produced before the court in an inquiry or trial where inquiry or trial has been concluded. It cannot apply where there has been no inquiry or trial. In those cases, the proper section to apply would be section 457, which empowers the Magistrate to deal with the seized property. Support is relied upon the judgment passed by our own Hon'ble Delhi High Court in the matter of "Sushila Vs. Union of India" 1998(76) DLT 826.
Terra Real Estate Pvt Ltd v. The State & Ors. CR No. 613 of 2019 11/13 10 In the case in hands, the accused persons had expired before conclusion of inquiry or trial.
11 It is also the admitted case of the parties that a civil suit in respect of the property in question is already pending adjudication. The rights of the parties with respect to the property is yet to be decided by the Ld. Civil Court. The accused persons had expired before final conclusion of conviction or trial. In the given set of circumstances, the Ld. Trial Court was justified in dismissing the application u/s 452 CrPC.
12 The judgments relied upon by the Ld. Counsel for the revisionist are distinguishable from the facts and circumstances of th present case and do not come for retrieval of the revisionist. Further, the findings of Hon'ble Supreme Court in 2009 (5SSC, 5287), vide para 12, 22 and 43 at page no 535, 537 and 543 do not come into picture in order to help the appellant as in the aforesaid order/judgment Hon'ble Supreme Court has categorically stated that such an order can only be passed after conviction/conclusion of the case. 13 Accordingly, I do not find any infirmity in the order dated 02.11.2019 passed by Ld. Trial Court to interfere with the same in exercise of Terra Real Estate Pvt Ltd v. The State & Ors. CR No. 613 of 2019 12/13 appellant jurisdiction.
14 The net result is that, the order dated 2.11.2019 passed by the Ld, MM is upheld and the appeal as filed is accordingly dismissed. 15 TCR alongwith copy of this judgment be sent back to Ld. Trial Court.
16 File of the criminal appeal be consigned to records after due compliance.
Announced in the
open court on
5th April, 2022 (MOHINDER VIRAT)
Add. Sessions Judge04 & Spl. Judge (NDPS)
South East, New Delhi
Terra Real Estate Pvt Ltd v. The State & Ors. CR No. 613 of 2019 13/13