Delhi District Court
Swami Asangananda Bharati vs (1) The State on 23 January, 2012
IN THE COURT OF SHRI RAJEEV BANSAL,
ASJ-03 (SOUTH DISTRICT), SAKET COURTS,
NEW DELHI.
Criminal Revision No. 18/10
(Unique No.02403R0764812007)
Swami Asangananda Bharati
Founder Director/President
Himalayan International Institute of
Yoga Sc. & Philosophy,
NIL 24A Malviya Nagar, New Delhi
...........Revisionist
Versus
(1) The State
(2) Vijay Dhasmana
Himalayan Institute Hospital Trust,
Jolly Grant, Swami Ram Nagar, P.O.
Doiwala Dehradun -248140
(3) Yogendra Mohan Gupta
President, Himalayan International
Institute of Yoga Sc. & Philosophy, Kanpur
22-B Sarvodaya Nagar, Kanpur 208006
R/o 2, Sarvodaya Nagar, Kanpur 208006
(4) Roshan Lal Kanodia , Vice-President,
Himalayan International
Institute of Yoga Sc. & Philosophy, Kanpur
22-B Sarvodaya Nagar, Kanpur 208006
(5) H.P. Manchanda
Secretary, Himalayan International
Institute of Yoga Sc. & Philosophy, Kanpur
22-B Sarvodaya Nagar, Kanpur 208006
R/o 117/124A, Sarvodaya Nagar, Kanpur 208006
C.R No.18/10 Swmai Asangananda Bharti vs. State & Others 1/16
(6) Dr. K. Ratna, Ex. Secretary
Himalayan International
Institute of Yoga Sc. & Philosophy, New Delhi
R/o B-107, Punit Aptt., Vasundra Encl.,
New Delhi-110096
(7) Mrs. Chandan Swaroop, Ex. Treasurer,
Himalayan International
Institute of Yoga Sc. & Philosophy, New Delhi
C-19, Chirag Enclave, New Delhi.
(8) Mrs. Anila Bhaduri
Manager, Himalayan International
Institute of Yoga Sc. & Philosophy, New Delhi
C-189, Defence Colony, New Delhi.
(9) Mr. Rao, Senior Manager,
Canara Bank, Malviya Nagar Branch,
New Delhi-110017.
(10) Chief Manager,
Canara Bank, Malviya Nagar Branch,
New Delhi-110017.
(11) General Manager (Delhi Region)
Canara Bank Regional Hq. Nehru Place,
New Delhi.
..........Respondents
Date of Initial Institution :13.11.2007
Date of Institution in this Court :23.09.2010
Date of Pronouncement :23.01.2012
ORDER
1. This revision petition has been filed against the C.R No.18/10 Swmai Asangananda Bharti vs. State & Others 2/16 order dated 12.09.2007 whereby the Ld. Trial Court had accepted the cancellation report and had dismissed the complaint filed by the Petitioner/complainant. Aggrieved by this order, Petitioner/Complainant has preferred this revision petition.
2. A complaint was filed by the Petitioner Swami Asangananda Bharti @ Dr. Om Sharma before the Ld. Trial Court under Section 200 of Cr.P.C for commission of offences under Section 420/406/409/448/452/506 IPC. It has been stated in the complaint that the complainant is a disciple of Swami Rama who had founded Himalayan Institute of Yoga Science and Philosophy all over the world and he decided to establish one satellite of the USA institute in Delhi and the complainant was appointed as first Hony. Director and General Manager of the Delhi Institute, which was initially started from his own apartment at Delhi by Swami Rama and was later on shifted to a rented place in Malviya Nagar. It has been further stated that a basement and Ground Floor property C.R No.18/10 Swmai Asangananda Bharti vs. State & Others 3/16 at NIL 24 A Malviya Nagar, New Delhi was acquired by the Delhi Institute and Swami Rama appointed the complainant as the Power of Attorney. The complainant was entrusted with the powers as CEO to run the institute and to hire and fire staff. The grievance of the Petitioner is that in November 1996 Swami Rama took Mahasamadhi and immediately thereafter, the accused persons particularly Vijay Dhasmana, Roshan Lal started interfering in the work of Delhi Institute, claiming it to be their own. In 2003, the complainant went to US for knee replacement and hip replacement and the accused persons in collusion committed criminal trespass in premises of Delhi Institute at NIL 24, Malviya Nagar, New Delhi and committed the offences of cheating, fraud, misappropriation, criminal intimidation etc. It has been further stated that in his absence, accused no. 1 had filed a civil suit against him and obtained an ex-parte status quo order on 6.8.2003. When the complainant filed an application to dismiss the said false and fictitious suit having no cause of action, the said application was C.R No.18/10 Swmai Asangananda Bharti vs. State & Others 4/16 dismissed with cost on 26.3.2004. The Petitioner made a complaint to the police for registration of FIR against the accused persons but no action was taken by police and then he made a complaint to the DCP in this regard but to no avail. He thus filed a complaint before the Ld. Magistrate's court with a prayer for direction to the police for registration of FIR and for investigation. After filing of this complaint in Court, FIR was registered by the police whereupon they filed the final report praying for closure of the case. The Petitioner also filed a Protest Petition. The Closure Report was however accepted by the Ld. Trial Court vide its Order dt. 12.9.2007 and aggrieved by it, the present Revision was filed by the Petitioner/ Complainant.
3. Sh. B. Badrinath, Ld. Counsel for the complainant strenuously argued that the property No. NIL 24A, Malviya Nagar was in possession of the complainant till the time he remained in Delhi but as soon as the complainant went to USA for his knee replacement and C.R No.18/10 Swmai Asangananda Bharti vs. State & Others 5/16 hip replacement surgery on 17.04.2003, the accused persons locked the said premises and committed trespass. Ld. Counsel stated that in the protest Petition, the IO showed a statement of the complainant to have been recorded on 18.7.2005 which was false in as much as on the said date, the complainant was not even in India and this in itself shows that no statement could have been recorded by the IO of the complainant on the said date. Further, Ld. Counsel relied upon the judgment in the case of India Carat Pvt. Ltd. vs. State of Karnataka 1989 (2) SCC 132 to argue that even if the cancellation report is accepted by the Magistrate, he can still take cognizance of the offence u/s 190 (1)(b) of the Cr PC. It has been argued that the Ld. Magistrate was not under any legal obligation to dismiss the complaint despite accepting the final report and he had the option to take cognizance of the offence and summon the accused persons but the Ld. Trial Court did not follow this procedure and thereby committed an error. It has been urged that the Ld. Trial Court instead of accepting the final report, ought to have directed further C.R No.18/10 Swmai Asangananda Bharti vs. State & Others 6/16 investigation. As such, the present revision petition has been pressed by the Ld. Counsel.
4. On the other hand, it has been argued by Sh. Sanjeev Agarwal on behalf of the Respondent No. 2 to 5 and Respondent No. 7 that the Petitioner was Hony. Director till 6.9.1994 and vide letter dt. 7.9.1994, Respondent No. 2 Vijay Dhasmana was appointed as Hony. Director of the Himalaya International Institute of Yoga Science and Philosophy, Nil 24 A, Malviya Nagar, New Delhi in place of Dr. Om Sharma (Petitioner). He further stated that the property NIL 24 A Malviya Nagar is the property of the Institute and not of the Petitioner but the Petitioner has assumed himself to be the owner of the same, which in itself is fallacious. It has been argued that the Petitioner had no locus to claim title over the Malviya Nagar property. So far as protest petition is concerned, he has argued that the Petitioner has not filed any affidavit of the persons mentioned in Protest Petition, alongwith with the Revision Petition that the IO had not talked to them. It C.R No.18/10 Swmai Asangananda Bharti vs. State & Others 7/16 is stated that the jurisdiction of a Revisional Court is limited and hence the Revision may be dismissed.
5. I have heard both the sides and have also perused the Trial Court record which was summoned. A perusal of the record show that a report was called by the Magistrate concerned on 8.12.2004 and on 4.1.2005, it is recorded in the Trial Court order sheet that FIR No. 6/05 has been registered. On 4.1.2006, the final report filed by the police was accepted by the Ld. Trial Court but on an Order dt. 19.9.2006 passed in the Revision Petition, the matter was remanded to the Trial Court with a direction to give an opportunity to the complainant to file protest Petition against the final cancellation report and to give him an opportunity of hearing. The complainant then filed the protest petition which was taken into consideration by the Ld. Trial Court and the counsel for the Petitioner was also heard but the Protest Petition was rejected and the cancellation report was accepted by the impugned order dt. 12.9.2007. It is against this order, the present Revision C.R No.18/10 Swmai Asangananda Bharti vs. State & Others 8/16 Petition has been filed by the Complainant.
6. I have also perused the documents which are available on record. There is one General Power of Attorney dt. 17.1.1990 executed by one Prakash Aggarwal whereby he appointed Himalayan International Institute of Yoga Science and Philosophy as General Attorney through Dr. Om Sharma in respect of Ground Floor of property No. NIL 24 A, Malviya Nagar, New Delhi. There is an Agreement to Sell dt. 30.1.1989 on record executed by Ram Lal Kalra through his Attorney Prakash Agarwal in favour of Himalayan International Institute through Dr. Om Sharma regarding sale of basement of property no.
NIL 24 A, Malviya Nagar, New Delhi. The sale consideration for this purchase was paid from the bank account of the Institute. In a suit No. 72/04 for permanent injunction filed by the Himalayan International Institute of Yoga Science and Philosophy, on 7.5.2004, the Petitioner's statement was recorded on oath wherein he stated that he has nothing to do with the plaintiff institute C.R No.18/10 Swmai Asangananda Bharti vs. State & Others 9/16 and will never project himself as Director of the Institute. On 5.6.2004 another statement of the Petitioner was recorded to the effect that he will not publish any book/magazine which could suggest his association with the Institute. The suit of the plaintiff was disposed of as satisfied on 5.6.2004 in view of this statement of the petitioner. It is also recorded in this Order that the name of the Petitioner's society differs from the society of the Plaintiff. In other words, the Petitioner admitted that he has no association with the Himalayan International Institute of Yoga and Philosophy. The basement and Ground Floor of property no. NIL 24 A, Malviya Nagar, New Delhi was purchased by the said Institute through the Petitioner and the Petitioner did not purchase the said property in his individual capacity. The Petitioner was removed from the Directorship of the Institute vide letter dt. 7.4.1994 and Respondent No. 2 was appointed as Director in his place. Apart from it, there is also a copy of the registered Will dt. 9.4.1996 available on record, which is registered with Sub Registrar Dehradun whereby Dr. C.R No.18/10 Swmai Asangananda Bharti vs. State & Others 10/16 Swami Rama bequeathed all his properties and assets in favour of Himalayan Institute Hospital Trust, Dehradun. In this will, apart from other properties, property no. NIL 24-A, Malviya Nagar, New Delhi is also mentioned. In terms of this Will, a resolution was passed on 31.3.2003 dedicating the property No. NIL 24-A, Malviya Nagar, New Delhi to Himalayan Institute Hospital Trust, Village Jolly Grant, Dehradun. The Petitioner thus cannot have any personal right neither over the property NIL 24 A Malviya Nagar, New Delhi nor over the Himalayan International Institute of Yoga and Philosophy. As such, the Petitioner cannot claim any indefeasible rights over it. Another civil suit No. CS 316/03 was filed by the Institute against the Petitioner for declaration and injunction in which vide order dt. 18.8.2003 status quo was granted by civil court with respect to the property at Malviya Nagar.
7. So far as recording of statement of the Petitioner u/s 161 Cr PC on 18.7.2005 is concerned, the IO had stated that the date might have been wrongly noted. During the C.R No.18/10 Swmai Asangananda Bharti vs. State & Others 11/16 course of arguments on 3.1.2012, this Court made a specific enquiry from the Ld. Counsel for the Petitioner as to whether he is trying to say that the statement of the Petitioner was not recorded at all by the IO and he has fabricated the said statement. To this, the Ld. Counsel fairly stated that statement of the Petitioner was duly recorded by the IO u/s 161 Cr PC but the date of recording of the said statement is disputed. Hence, it is clear that the statement of the Petitioner was actually recorded by the IO u/s 161 Cr PC and the discrepancy regarding date of recording, in view of the explanation given by the IO in this regard, cannot be held to be fatal.
8. It has been stated in the Cancellation Report that the Petitioner did not produce any witness in his support and one Dr. Rajiv Uttam did not appear for any statement despite being served with notice. On being contacted over telephone by the IO, he stated to be not interested in giving any statement for the reason that he had nothing to do with regard to this matter. There is no affidavit filed of C.R No.18/10 Swmai Asangananda Bharti vs. State & Others 12/16 this Dr. Rajiv Uttam alongwith the Revision Petition in rebuttal of it.
9. It is noticed that the Institute had filed civil litigation against the Petitioner but no civil litigation was filed by the Petitioner against the Institute if he had been illegally removed from the Institute or if he still had any interest or title in the Institute.
10. So far as the Judgment of the Hon'ble Supreme Court in India Carat Pvt. Ltd. (Supra) is concerned, there is no dispute about the legal procedure laid down therein. However, it cannot be said that the procedure adopted by the Ld. Trial Court was wrong. In this Judgment, the Hon'ble Supreme Court laid down that even after acceptance of final report, the Magistrate can take cognizance of the case and summon the accused. However, there is no law that in all cases when the final report is accepted by the Magistrate, he is under any legal obligation to take cognizance and issue summons to the C.R No.18/10 Swmai Asangananda Bharti vs. State & Others 13/16 accused. The word used u/s 190 Cr PC is 'may' and not 'shall' meaning thereby that there is an element of discretion which is available to the Magistrate. The power is discretionary and is to be exercised only in accordance with the facts of each case.
11. In Abhinandan Jha vs. Dinesh Mishra AIR 1968 SC 117, the Hon'ble Supreme Court held that if a report u/s 173 (2) Cr PC has been filed stating that no case is made out against the accused, the Court has no jurisdiction to direct the police to file charge sheet against the accused persons. The discretion in such a situation available to the Magistrate is to either agree or disagree with the said Report. If he does not agree with the said report, he can direct further investigation. But if he agrees with the said report, he can accept the said report and close the proceedings.
12. In the present case, Magistrate came to the conclusion that the final report submitted by the police C.R No.18/10 Swmai Asangananda Bharti vs. State & Others 14/16 was acceptable and hence accepted the same.
13. Apart from it, the prayer made by the complainant in his complaint is perused. It had the following prayer:
"i) Issue directions/orders to the SHO PS Malviya Nagar, New Delhi to register the FIR against all the accused persons and to initiate investigation into the case, and also
ii) Pass orders and directions which the Hon'ble Court deem fit and proper in the above said case in the interest of justice."
14. As noted above, the FIR was registered against the accused persons and the matter was also investigated by the police whereafter, final report u/s 173 (2) Cr PC was filed by police, against which the complainant filed a Protest Petition, and after duly considering the same, the Ld. Magistrate accepted the final report. Hence, no fault C.R No.18/10 Swmai Asangananda Bharti vs. State & Others 15/16 can be found in the Order of the Ld. Trial Court in this regard, particularly keeping in view the prayer made by the petitioner/complainant in his complain before the Ld. Trial Court.
15. The jurisdiction of a Court under its Revisionary jurisdiction is limited to the extent as it has to see that the order challenged before it suffers from any illegality or irregularity or not. I am satisfied that there is no such error in the impugned order which calls for any interference by this Court and a result, the Revision Petition is dismissed, being devoid of any merit.
16. TCR be sent back to the concerned court alongwith a copy of this order.
17. File be consigned to the Record Room.
Announced in the open court. ( Rajeev Bansal )
Dated:23.01.2012 ASJ-3/South District
Saket Courts, New Delhi
C.R No.18/10 Swmai Asangananda Bharti vs. State & Others 16/16