Delhi District Court
K.K.Juneja vs State on 4 September, 2023
Kewal Krishan Juneja and Ors. Vs. State
IN THE COURT OF ARUN SUKHIJA: ADDL. SESSIONS
JUDGE-03 (EAST): KARKARDOOMA COURTS: DELHI.
Criminal Revision No. 96/2022
1. Kewal Krishan Juneja
S/o Late Mulakh Raj Juneja
R/o H.No. F-21, Preet Vihar,
Delhi-110092.
2. Janardhan Gupta
S/o Late Chander Bhusan Gupta
R/o H. No. G-300, Preet Vihar,
Delhi-110092.
3. Surender Kumar Mittal
S/o Late Gopi Chand Mittal
R/o H. No. A-168, Preet Vihar,
Delhi-110092.
4. Geetaj Channa
S/o Late Sh. Narender Channa
R/o H.No. A-32, Preet Vihar,
Delhi-110092.
5. Munish Singh
S/o Sh. Surender Singh
R/o H.No. F-21, 3rd Floor,
Preet Vihar, Delhi-110092. ...Petitioners
VERSUS
State of NCT of Delhi ...Respondent
Arising out of order dated 11.03.2022
@ FIR No. 75 of 2013
Date of Institution : 19.05.2022
Assigned to this Court on : 20.05.2022
Order Reserved on : 18.08.2023
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Kewal Krishan Juneja and Ors. Vs. State
Date of Order : 04.09.2023
::- O R D E R -::
1. Vide this order, this Court will decide the Revision Petition
filed by the accused persons/petitioners/revisionists
challenging the order dated 11.03.2022, whereby, the then
Ld. ACMM (East) dismissed an application under Section
258 of Code of Criminal Procedure, 1973 (in short
"Cr.P.C.") seeking discharge of all the accused persons and
further directing to frame charges under Sections
323/448/451/34 of the Indian Penal Code, 1860 (in short
"IPC").
2. Vide order dated 31.08.2022, this Court felt appropriate to
issue notice to the complainant and on 13.09.2022, the
complainant entered appearance.
3. Brief facts of the case are as follows:-
(a) A written complaint dated 18.11.2012 was made to the
SHO, P.S. Preet Vihar by Shri Brijender Kumar
(applicant) stating himself to be President of Preet
Nagar Residents Welfare Association (Regd.) (in short
"PNRWA"), wherein, the allegations were that
applicant was carrying out the demolition of the
existing structure in the rear set back with the help of
labourers on 18.11.2012 at about 11:00 a.m. at Plot No.
Zone E-8 part and E-12, Preet Vihar and in the
meantime, Sh. K.K. Juneja along with his two
son-in-laws, Sh. Janardhan Gupta and Sh. S.K. Mittal,
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Kewal Krishan Juneja and Ors. Vs. State
entered in the plot without permission from the
applicant and obstructed the ongoing demolition of the
existing structure and openly threatened that they will
not permit the applicant or any other person to carry-
out demolition or any other activity on the said plot of
land and it is also alleged in the said complaint that
when the guard, who was on duty on main gate,
stopped them from entering the main gate, they
manhandled and abused the security guard and scaled
from broken boundary wall and reached the rear set
back portion, where, this demolition of the existing
structure was going on and obstructed the applicant in
bringing out the work.
(b)That regarding the said incident, DD No. 42B, dated
18.11.2012 was registered at P.S. Preet Vihar.
Subsequently, an FIR No. 75/2013 was registered
under Sections 447/352/34 IPC.
(c) That after investigation, a Cancellation Report was
filed by the police on 03.03.2015. The Protest Petition
was filed by the complainant and the then Ld. Court
directed for further investigation on the said petition.
(d)After further investigation, the police filed the
Supplementary Charge-sheet on 28.03.2016 against the
accused persons/revisionists/petitioners for the
offences under Sections 448/451/34 IPC.
(e) The Revisionists/Petitioners filed application under
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Kewal Krishan Juneja and Ors. Vs. State
Section 91 Cr.P.C. as certain documents were not made
part of the investigation report. The then Ld. ACMM
allowed the said application vide order dated
07.03.2020 and the concerned IO was directed to
investigate the matter further and to file supplementary
final report/investigation report.
(f) That after the further investigation, the investigating
officer filed the supplementary report.
4. The impugned order dated 11.03.2022 is challenged inter
alia on the following grounds, which are more or less the
arguments of the accused persons/revisionists/petitioners:-
(I) That the Ld. ACMM failed to appreciate that
charge under Sections 448 & 451 IPC is not made
out as the complaint/allegations is/are devoid of
the ingredients of Section 442 IPC, which defines
House Trespass. The Site Plan of the place of
incident, as filed by the police, is clear to point
out that there was no dwelling place.
(II) That during investigation, statements of the
complainant and witnesses were recorded under
Section 161 Cr.P.C. by the IO, wherein, there were
specific improvements, from what was alleged in
the complaint made on the same day of the
incident. Through the statements, it was further
alleged by the complainant that Mr. Sikka and
complainant's son Karan objected to the
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Kewal Krishan Juneja and Ors. Vs. State
obstruction caused by the accused persons, then,
Mr. Janardan Gupta snatched the stick from the
Chowkidar and gave the lathi blow to the
complainant as well as to his son Karan and to
Mr. Sikka. Thereafter, Mr. S.K. Mittal took-over
the lathi from Sh. Janardhan Gupta, who gave
lathi blow to Karan and Mr. Sikka. Thereafter,
lathi blow was given by sons-in-law of the
accused K.K. Juneja as well while K.K. Juneja
had caught hold of him as well as his son with
their both arms from back. These specific
allegations do not find mention in the written
complaint made on the date of incident. It is
settled law that on the basis of supplementary
statements, charges cannot be framed. The
statements in itself are questionable, there are
considerable improvements in the allegations in
comparison to what was alleged in the complaint.
Such improvements were deliberately made only
with the sole intent to make out a false case
against the accused persons/petitioners/
applicants. Reliance is placed upon (a) Prashant
Bhaskar Vs. State (Govt. of NCT of Delhi) Crl.
Rev. No. 385/2009 DHC and (b) Sunil Bansal
Vs. State of Delhi 2007 (96) DRJ.
(III) The Ld. ACMM erred in opining that prima facie
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Kewal Krishan Juneja and Ors. Vs. State
the charge of 323 IPC is made out. The Ld.
ACMM failed to appreciate that no person had
made allegations regarding the suffering of pain
or hurt on account of the alleged beating, nor is
there any medical document on record to show
that any hurt, as defined under Section 319 IPC,
was caused to anyone. It is settled law that for the
offences of Section 323 IPC to be made out, the
ingredients of Section 319 IPC have to be
established in as much as there has to be specific
allegation of sufferance of pain for the offence of
hurt. Further, even the Charge-sheet filed by the
Investigating Agency is under Sections
448/451/34 IPC, which shows that IO also
concluded that there no offence of assault at all.
Even further the judgment relied upon by the Ld.
Addl. PP for the State titled as Lakshman Singh
Vs. State of Bihar to assert that production of an
injury report is not a sine qua non for establishing
a case for the offence of 323 IPC, has been
wrongly construed. As per the observations of
judgment itself, it is clear that this view was taken
because it was a matter of fact that the victim was
attacked with lathis, this was proved as he was
treated in a government hospital. In light of this
corroboration, it was observed by the Hon'ble
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Kewal Krishan Juneja and Ors. Vs. State
Supreme Court that the requirement of an injury
report is not essential. It was never intended that
there is absolutely no requirement of an injury
report for the offence of Section 323 IPC or the
allegation of sufferance of pain by the victim.
(IV) The Ld. ACMM failed to appreciate that the
cognizance taken is time barred. No offence under
Sections 448/451/323 IPC can be made out. At
best, as per the allegations in the compliant, only
an offence under Section 447 IPC is made out, the
punishment of which spans upto 3 months or fine
or both. Section 468 Cr.P.C. clearly specifies that
no Court shall take cognizance of an offence after
the expiry of the limitation period if the offence is
punishable with imprisonment for a term not
exceeding 1 year. The Charge-sheet was filed on
28.03.2016, the date of reporting the offence was
18.11.2012. It is settled law that the period of
limitation begins as soon as the offence is
reported to the police, the alleged offence was
reported on the date of incident itself. There is a
delay of approximately 3 years and 5 months,
therefore, the cognizance, in itself, was time
barred, thereby making it a fit ground for
discharge.
(V) The Ld. ACMM further erred in observing that
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Kewal Krishan Juneja and Ors. Vs. State
upholding the plea of limitation would amount to
review of its own order of taking cognizance,
which is barred in law. It is submitted that at the
time of taking cognizance the accused has no say
in the matter. The accused comes into the picture
only after receiving summons from the Court.
Even thereafter, until the Charge-sheet is supplied
to him, he is unaware as to the exact nature of
allegation made against him. It is only thereafter
that the accused can examine the material to
verify if there are any technical flaws. Therefore,
even at the stage of charge, the plea of limitation
can be raised and that would not amount to the
Court reviewing it's own order, whereby,
cognizance was taken. Reliance is placed on
Arun Vyas & Another Vs. Anita Vyas (1999) 4
Supreme Court Cases 690 and State (Delhi
Administration) Vs. Anil Puri & Ors. Crl.
Appeal No. 389 of 1977, which hold that plea of
limitation can be raised at the stage of charge or
any stage, the Magistrate will be committing no
illegality in considering the question and
discharging the accused. Further reliance is placed
on the case titled as State of Punjab Vs. Sarwan
Singh (1981) 3 Supreme Court Cases 34, which
holds that all proceedings, which are barred by
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Kewal Krishan Juneja and Ors. Vs. State
limitation, are non-est.
(VI) All the allegations are afterthought and made up.
This can be established from the fact that the FIR
was registered on the basis of a typed complaint
filed by the complaint, wherein, there is no
mention at all of any beating or snatching of a
lathi from the Chowkidar and beating the
complainant or anyone else. It is only in the
statements under Section 161 Cr.P.C., which were
recorded, when there are false and concocted
allegations made against the accused persons. No
such incident, as alleged, took-place. The sons-in-
law of Dr. K.K. Juneja, Revisionists No.4 & 5,
were not even present near the spot nor have they
visited the place of incident but their names have
been added in the Charge-sheet only to harass and
humiliate the accused persons.
(VII) Because the revisionists were bonafide members
of PNRWA. It is a matter of fact, that during
investigation, the applicant/accused had handed-
over the documents to the IO that clearly
established that Dr. K. K. Juneja was a bonafide
member of PNRWA. He was, in fact, the elected
Secretary of PNRWA at least since 2002 as well as
authorized signatory in the bank account of
PNRWA opened with Corporation Bank. The IO,
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Kewal Krishan Juneja and Ors. Vs. State
however, concealed these documents and did not
produce the same before the Court. It is only after
the directions issued by the then Ld. ACMM for
investigating the matter further that the IO
admitted having received the documents and also
submitted this report stating that all the
documents are verified and genuine. A bare
reading of these documents establish that Dr. K.K.
Juneja was the Secretary of PNRWA. The land,
which was allegedly trespassed, was allotted to
PNRWA by DDA for the benefit of residents at a
notional value of Re.1/-. PNRWA had inducted
many members, including Dr. K.K Juneja.
PNRWA in 2002, applied to MCD through Dr.
K.K. Juneja being Secretary, for sanction of
building plan and also to open a bank account
with Corporation Bank with 4 authorized
signatories, including Dr. K.K. Juneja and the
complainant. It is only from the year 2009 that the
complainant started claiming that there are 12
members in PNRWA, which were only his family
members and associates. PNRWA, however, had
many members. The elections of PNRWA were
also held, Mr. S.K. Mittal and Mr. Janardhan
Gupta were also bonafide members of PNRWA at
the time of alleged incident. It is only when the
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Kewal Krishan Juneja and Ors. Vs. State
applicants realized that land is being encroached
upon by the complainant, did they make an
attempt to stop the complainant and his associates
from usurping the land belonging to PNRWA.
(VIII) The Ld. ACMM rightly observed that the Court,
while framing charges, may not take into account
the defence of the accused or the documents in
custody of the accused, which are not produced by
the accused before the IO, however, the Ld.
ACMM failed to appreciate that the Court is duty
bound to consider the evidence collected by the
investigating officer during the course of the
investigation. If it is brought to the notice of the
Court by the accused that some documents of
sterling quality have been withheld by the
Investigating Officer or the prosecution in order to
hide the truth, then, the Court is empowered to
summon such documents and even consider them
for the purpose of framing charges. The reliance is
placed upon the case titled as Nitya
Dharmananda @ K. Lenin & Anr. Vs. Sri Gopal
Sheelum Reddy Criminal Appeal No. 2115 of
2017, Shashi Bala Vs. State (Govt. of NCT of
Delhi) & Ors. Crl. M.C. 1752/2016 and
Shakuntala Vs. The State of Delhi 139 (2007)
DLT 178.
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Kewal Krishan Juneja and Ors. Vs. State
(IX) Because the Ld. ACMM failed to appreciate that
all the documents were part of Supplementary
Charge-sheet submitted by the IO, pursuant to the
orders passed by the Ld. ACMM's Court itself. As
such, there was no impediment upon Ld. ACMM
to look into all the documents available on record.
The Ld. ACMM's observation in the impugned
order that the documents of defense cannot be
looked into, in terms of the judgment of Hon'ble
Supreme Court in State of Orissa Vs. Debendra
Nath Padhi, is not applicable in the present case
at all.
(X) Because it is clear that on the date of alleged
incident, three of the accused persons were
bonafide members of PNRWA. The other two
applicants had accompanied them being sons-in-
law of Dr. K.K. Juneja. Being members of
PNRWA, the applicants had absolute and equal
right of entry in the plot of land belonging to
PNRWA. As such, they cannot be termed as
trespassers. The claim of complainant is based
upon the false presumption that he, his family and
associates alone are the only members of PNRWA
and that the applicants were not the members of
PNRWA. The documents filed by the applicant,
which have been duly verified by IO, clearly
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Kewal Krishan Juneja and Ors. Vs. State
establish that Dr. K.K. Juneja was a bonafide
member as well as Secretary of PNRWA at least
since 2002.
(XI) Because there is no finding by the IO as to how
the complainant alone was the rightful entrant to
the land belonging to PNRWA. Further, since the
civil suit is pending since 2013, which shows that
the applicants were bonafide in their action to
prevent encroachment by the complainant on the
land belonging to PNRWA, as such, no offence
under Section 447 IPC as well is made out.
(XII) Because it is settled law that at the time of
framing of charge, the Court is required to
examine the entire material available on record
with a view to find out what offence, if any, are
made out. It is also settled law that if two views
are equally possible from the material placed on
record, then, the Court would be justified in
accepting the view favorable to the accused and
discharging the accused. It has been further held
that if chances of conviction are bleak, then, there
is no justification in framing the charge and going
through the formality of trial and then, ultimately
acquitting the accused as it only results in wastage
of precious time of the Court without serving any
cause of justice. To support these averments,
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Kewal Krishan Juneja and Ors. Vs. State
reliance is placed upon the judgments of Union of
India Vs. Prafulla Kumar Samal (1979) 3 SCC 4
and Century Spinning & Manufacturing Co.
Ltd. Vs. State.
5. Ld. Counsel for Revisionists No.2 and 3 has also relied
upon the following Judgments that club/building in
question does not fall in the category of House Trespass,
as defined under Section 442 IPC and also about the
dominant intention under Section 441 IPC:
(a) Seema Gupta Vs. State of & Ors. (High Court of
Delhi) 2012 SCC Online Del 4647;
(b) State of Haryana Vs. Prem Singh (High Court of
Punjab and Haryana) (2007) 2 RCR (Cri) 537
(DB);
(c) Shine Justus & Ors. Vs. State of Kerala 2002
(High Court of Kerala) CRL. A 372 OF 2007;
(d) Lakshmana Koundan Vs. King Emperor 1926
SCC Online Mad 460 and
(e) Jawanmal Vs. Mst. Bhanwari 1958 SCC Online
Raj 9.
6. Ld. Addl. PP for the State and Ld. Counsel for the
complainant have vehemently argued that the impugned
order does not suffer from any infirmity and the same is
detailed reasoned order. It is also argued by them that acts,
as mentioned in the complaint as well as statements
recorded under Section 161 Cr.P.C., apparently reveal that
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Kewal Krishan Juneja and Ors. Vs. State
the accused persons/revisionists had committed the
offences under Sections 323/448/451/34 IPC. It is further
argued by Ld. Counsel for complainant that Charge-sheet
was filed well within Limitation period as one of the
offences committed by accused persons was under Section
451 IPC, which provides for punishment of two years and
further, the limitation is to be reckoned from the date of
launching of prosecution and complaint was immediately
made on 18.11.2012 and FIR was also lodged well within
limitation period. It is also argued that after allowing the
Protest Petition, further investigation was directed and the
Ld. Trial Court had condoned the further period i.e. period
from passing of the said order till filing of the
Supplementary Charge-sheet. In order to buttress the
arguments, Ld. Counsel for the complainant has relied
upon the following judgments:-
(a) Sarah Mathew Vs. Institute of Cardio Vascular
Diseases (2014) 2 SCC 62;
(b) Amritlal Vs. Shantilal Soni & Ors. 2022 SCC
Online SC 266;
(c) Lakshman Singh Vs. State of Bihar (2021) 9 SCC
191;
(d) State by CBI Vs. S. Bangarappa (2001) 1 SCC
369;
(e) Sonu Gupta Vs. Deepak Gupta (2015) 3 SCC 424;
(f) Ghulam Hassan Beigh Vs. Mohd. Maqbool
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Kewal Krishan Juneja and Ors. Vs. State
Magrey 2022 SCC Online SC 913;
(g) Appu Ramani & Ors. Vs. The State
MANU/AP/0079/1993 and
(h) State of Karnataka by Cantonment Railway P.S.
Vs. Richard @ Aruldas and Anr. 2008 SCC Online
Kar 45.
7. This Court would firstly deal with the question whether
the ingredients under Section 442 IPC are attracted in the
facts and circumstances of the present case or not and for
the sake of convenience, Sections 441 and 442 IPC are
reproduced as under:-
"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".
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".
Explanation.-The introduction of any part of the
criminal trespasser's body is entering sufficient to
constitute house-trespass."
8. In order to invoke the provision of Section 442 IPC, first
of all, ingredients of Section 441 IPC are required to be
proved. Let us assume for a moment that ingredients of
Section 441 IPC are prima facie attracted, however, the
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Kewal Krishan Juneja and Ors. Vs. State
prosecution is further required to show that such criminal
trespass was committed in any building, tent or vessel and
that the said building, tenant or vessel were used either as
(i) human dwelling or (ii) place of worship or (iii) custody
of property or combination of any or all of them. Ld.
Counsel for the complainant has fairly conceded that the
club, which is building in question, was neither being used
as human dwelling nor place of worship. Ld. Counsel for
the complainant has relied upon the Site Plan annexed
with the Supplementary Charge-sheet and it shows that the
incident had taken-place in the room. It is further argued
that the said room was used as office and place of custody
of property. Ld. Counsel for the complainant has relied
upon the judgment of State of Karnataka by Cantonment
Railway P.S. (supra) and has argued that the Hon'ble High
Court, after relying upon the decision of 1991(2) Orissa
LR 295 (referred in AIR Manual 5th Edition Volume 38
at page 868), has held that building of Police Station was
covered. It is argued by Ld. Counsel for the complainant
that the room in question, where, incident happened, was,
in fact, office of the club and in the said Judgment of
Hon'ble Orissa High Court, as relied upon by Hon'ble
Karnataka High Court, the incident had happened in the
office of Sub-Divisional Veterinary Assistant Surgeon and
the same was considered as place of custody of property
and covered under Section 442 IPC.
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Kewal Krishan Juneja and Ors. Vs. State
9. Per Contra, Ld. Counsel for Revisionists Nos. 2 and 3 has
relied upon three judgments i.e. (1) Seema Gupta (supra),
(2) State of Haryana Vs. Prem Singh (supra) and (3)
Shine Justus & Ors. (supra) to address the arguments on
this issue. In the cases of Seema Gupta (supra) and Prem
Singh (supra), the building was School and in case of
Shine Justus (supra), the incident happened outside the
shop. The second judgment, as relied upon by Ld. Counsel
for Revisionists No. 2 and 3, was passed by Hon'ble
Division Bench of Hon'ble High Court of Punjab &
Haryana and it was categorically held that Section 442 IPC
is not attracted. Similarly, our own Hon'ble High Court, in
the case of Seema (supra), has also held that Section 442
IPC is not attracted. It is well known fact that the School
not only maintains the records of students but also other
records in the office and it also usually contained the
separate room for the Principal's office, still, it was held in
both the cases that Section 442 IPC is not attracted. It is
argued by Ld. Counsel for complainant that in the said
Judgment(s), the third limb i.e. custody of property was
not even considered and discussed and it is only first limb
i.e. place of human dwelling, was considered by the
Hon'ble High Court(s). The said argument is devoid of
any merits. It is to be presumed that Hon'ble High
Court(s) has/have considered the complete Section 442
IPC and thereafter, they came to conclusion that School is
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Kewal Krishan Juneja and Ors. Vs. State
not covered under Section 442 IPC. Furthermore, in the
present case, the Site Plan was prepared on 01.12.2015 i.e.
after three years of the alleged incident and admittedly, at
that time, the room in question was not even in existence
and moreover, there is not a single averment either in the
entire complaint or in statement of any of the witnesses
recorded under Section 161 Cr.P.C. that the said room was
used as Office. The relevant portion of complaint dated
18.11.2012 is also reproduced as under:-
"....Accordingly, the applicant was carrying out the
demolition of the existing structure in the rear set back
with the help of labourers on 18.11.2012 at about 11
am. In the meantime Sh. K.K. Juneja along with his
two son in laws and Sh. Janardhan Gupta and Sh. S.K.
Mittal entered in the plot without permission from the
applicant and obstructed the ongoing demolition of the
existing structure and openly threatened that they will
not permit the applicant or any other person to carry
out demolition or any other activity on the said plot of
land.....scaled from the broken boundary wall and
reached the rear set back portion where this demolition
of existing structure was going on and obstructed the
applicant in bringing out the work...".
As per the said complaint, the demolition was
already in progress and it is nowhere stated that the
incident was taken-place in the room or the said alleged
room in the Site Plan was used as an office or any custody
of property and at that time, it was not even possible to use
either of them as at that time, the same was under the
demolition. It further nowhere reflects that any of the
Revisionists/accused persons entered into the room. Even
as per the Site Plan, the said room was totally empty. In
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Kewal Krishan Juneja and Ors. Vs. State
the case of Kattinokkula Murali Krishna Vs. Veeramalla
Koteswara Rao, reported in (2010) 1 SCC 466, the
Hon'ble Supreme Court was pleased to held that it was a
settled principle of law that evidence beyond the pleadings
can neither be permitted to be adduced nor can such
evidence be taken into consideration. The Hon'ble
Supreme Court of India in 2008 (2) RCR (Civil) 879,
Anathula Sudhakar Vs. P. Bushi Reddy (Dead) by LRs &
Ors. also held that any amount of evidence beyond
pleadings is not to be considered. In view of this law laid
down by the Hon'ble Supreme Court of India, it is clear
that any sort of evidence beyond pleadings is not liable to
be considered. No doubt, the aforesaid judgments were
passed in the context of civil law but the said principles
can also be applied in the criminal cases as the Court can
always look into the material omissions and
contradictions. With due respect, the Judgment(s), as relied
upon by the Ld. Counsel for complainant, is/are of no help
in the peculiar facts and circumstances of the present case.
Furthermore, the police station always contains the
Malkhana and the said place is used as a place of custody
of case properties.
10. Moreover, when the FIR was lodged at that time, the
provision of Section 451 IPC was not invoked and the FIR
was only lodged for the offences punishable under
Sections 447/352/34 IPC. Considering the entire facts and
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Kewal Krishan Juneja and Ors. Vs. State
circumstances of the present case and in view of settled
law, this Court of the considered opinion that ingredients
of Section 442 IPC are not attracted in the present case and
accordingly, direction to frame charges under Sections 448
and 451 IPC, as ordered vide impugned order, are not
sustainable and the same are hereby set aside.
11. Now, this Court remained with the allegations of Sections
323/447/352 IPC. At the time of lodging of the FIR, only
Sections 447/352/34 IPC were invoked. Before coming
into the allegations of either under Section 323 IPC or
Sections 441/447 IPC and Section 352 IPC, this Court will
delve into the question of Limitation, as provided under
Section 468 Cr.P.C. for the said provisions. The relevant
portion of the Section 468 Cr.P.C. is reproduced as under:-
"468. Bar to taking cognizance after lapse of the
period of limitation.
(1) Except as otherwise provided elsewhere in this
Code, no Court, shall take cognizance of an offence of
the category specified in sub-section (2), after the
expiry of the period of limitation.
(2) The period of limitation shall be--
(a) six months, if the offence is punishable with fine
only;
(b) one year, if the offence is punishable with
imprisonment for a term not exceeding one year;
(c) three years, if the offence is punishable with
imprisonment for a term exceeding one year but not
exceeding three years........"
12. As per the FIR lodged, the present case falls under Section
468(2)(b) Cr.P.C. as the maximum punishment for
Sections 352/447 IPC is three months and even if, we
presume that Section 323 IPC is attracted, still, maximum
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Kewal Krishan Juneja and Ors. Vs. State
punishment for Section 323 IPC is one year.
13. The important word in Section 468 Cr.P.C. is 'cognizance'
and it is well settled that before filing of the complaint
and/or Charge-sheet by the police, the Magistrate is not in
a position to take 'cognizance'. The question before
Hon'ble Constitution Bench of Hon'ble Supreme Court, in
the landmark judgment of Sarah Mathew Vs. Institute of
Cardio Vascular Diseases (supra), was to the following
effect:-
"......Whether for the purposes of computing the
period of limitation under Section 468 of the Cr.P.C the
relevant date is the date of filing of the complaint or
the date of institution of prosecution or whether the
relevant date is the date on which a Magistrate takes
cognizance of the offence...."
14. The entire controversy in the said case hinges around the
word 'cognizance' and relevant portions of the said case
are reproduced as under:-
"....It is now necessary to see what the words 'taking
cognizance' mean. Cognizance is an act of the court. The
term 'cognizance' has not been defined in the Cr.P.C.
.........In Jamuna Singh & Ors. v. Bhadai Shah (AIR 1964
SC 1541), relying on R.R. Chari and Gopal Das Sindhi &
Ors. v. State of Assam & Anr. (AIR 1961 SC 986), this Court
held that it is well settled that when on a petition or
complaint being filed before him, a Magistrate applies his
mind for proceeding under the various provisions of
Chapter XVI of the Cr.P.C., he must be held to have taken
cognizance of the offences mentioned in the complaint....
....Thus, a Magistrate takes cognizance when he applies his
mind or takes judicial notice of an offence with a view to
initiating proceedings in respect of offence which is said to
have been committed. This is the special connotation acquired
by the term 'cognizance' and it has to be given the same
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Kewal Krishan Juneja and Ors. Vs. State
meaning wherever it appears in Chapter XXXVI. It bears
repetition to state that taking cognizance is entirely an act of
the Magistrate. Taking cognizance may be delayed because of
several reasons. It may be delayed because of systemic
reasons. It may be delayed because of the Magistrate's
personal reasons...
.....We are inclined to take this view also because there has to
be some amount of certainty or definiteness in matters of
limitation relating to criminal offences. If, as stated by this
Court, taking cognizance is application of mind by the
Magistrate to the suspected offence, the subjective element
comes in. Whether a Magistrate has taken cognizance or not
will depend on facts and circumstances of each case. A
diligent complainant or the prosecuting agency which
promptly files the complaint or initiates prosecution would
be severely prejudiced if it is held that the relevant point for
computing limitation would be the date on which the
Magistrate takes cognizance. The complainant or the
prosecuting agency would be entirely left at the mercy of the
Magistrate, who may take cognizance after the limitation
period because of several reasons; systemic or otherwise. It
cannot be the intention of the legislature to throw a diligent
complainant out of the court in this manner. Besides it must
be noted that the complainant approaches the court for
redressal of his grievance. He wants action to be taken
against the perpetrators of crime. The courts functioning
under the criminal justice system are created for this purpose.
It would be unreasonable to take a view that delay caused by
the court in taking cognizance of a case would deny justice to
a diligent complainant. Such an interpretation of Section 468
of the Cr.P.C. would be unsustainable and would render it
unconstitutional.
...Treating date of filing of complaint or date of initiation of
proceedings as the relevant date for computing limitation
under Section 468 of the Code is supported by the legal
maxim 'actus curiae neminem gravabit' which means that
the act of court shall prejudice no man. It bears repetition to
state that the court's inaction in taking cognizance i.e. court's
inaction in applying mind to the suspected offence should not
be allowed to cause prejudice to a diligent complainant.
Chapter XXXVI thus presents the interplay of these three
legal maxims. Provisions of this Chapter, however, are not
interpreted solely on the basis of these maxims. They only
serve as guiding principles...."
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Kewal Krishan Juneja and Ors. Vs. State
(Portions bolded in order to highlight)
15. The aforesaid ratio and observations of Hon'ble
Constitution Bench leaves no doubt that date of filing of
institution of prosecution is filing of the final
report/Charge-sheet by prosecution agency. In case of
K. Kalavathy and Ors. Vs. State and Ors.
MANU/TN/6698/2022, as relied upon by Ld. Counsel for
Revisionists Nos. 2 and 3, after relying upon the aforesaid
judgment of Hon'ble Constitution Bench, it is held that
"..that offences involved in this case attracts maximum
period of imprisonment of two years, therefore, as per
Section 468(2) of Cr.P.C., the Charge-sheet ought to
have been filed within three years from the date of
registration of the FIR..". This Court is of the view and
that in view of observations, more specifically highlighted
above, made by Hon'ble Constitution Bench, with due
respect, the observation of Hon'ble Division Bench in
Amritlal Vs. Shantilal & Ors. (supra) is not binding.
16. As per the complainant himself, he has given the
complaint on 18.11.2012 itself and the FIR was lodged on
21.02.2013. In view of the aforesaid law, as laid down by
the Hon'ble Constitution Bench, the Charge-sheet/Final
Report, qua the said offence, ought to have been filed
within one year. As per the admitted position, the
Cancellation Report was filed by IO on 08.09.2014. The
present case falls under Section 468(2)(b) Cr.P.C. and
Crl. Rev. No. 96/2022 Page - 24 of 32
Kewal Krishan Juneja and Ors. Vs. State
according to which, the Final Report ought to have been
filed within one year. The Final Report was neither filed
within one year from the date of offence nor from the date
of lodging the FIR on 21.02.2013. After the filing of
Cancellation Report, the Court has three options - either to
accept the Cancellation Report and close the case;
secondly, the Court may take cognizance of the case and
summon the accused persons and thirdly, the Court may
direct for further investigations. In the present case, if the
Court has taken the cognizance, then, the Final Report,
which was filed on 08.09.2014, was time barred and in
that event, the IO was required to move an application
under Section 473 Cr.P.C. for condonation of delay in
filing the Charge-Sheet/Final Report. Vide order dated
03.03.2015, The then Ld. ACMM had directed for further
investigation and it was also directed that the investigation
be completed within a period of six months and
Supplementary Charge-sheet be filed. Supplementary
Charge-sheet was not filed within the stipulated period, as
directed by Ld. Trial Court and the complainant filed the
application for knowing the status of investigation
sometime in September/October 2015. On 13.11.2015, the
IO sought time for Final Report and the matter was put up
on 28.01.2016 and from time to time, the IO was seeking
time to file the Status Report and Supplementary Charge-
sheet was filed on 28.03.2016. The said Charge-sheet was
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Kewal Krishan Juneja and Ors. Vs. State
filed under Sections 448/451/34 IPC. As discussed in
detail hereinabove, the ingredients of Section 442 IPC
were not attracted and thus, directing to frame charges
under Sections 448/451 IPC are not sustainable. Even if,
presuming that the offences under Sections
447/323/352/34 IPC are attracted in the present case, still,
the Charge-sheet was filed much beyond the period of one
year either from the date of offence or from the lodging of
the FIR. The IO has not moved any application for
condonation of delay in filing the Charge-sheet and
apparently, the cognizance could not have been taken in
the present case, as the Charge-sheet was filed much
beyond the period, as prescribed under Section 468(2)(b)
Cr.P.C. Ld. Trial Court ought to have considered the said
relevant fact, however, the Ld. Trial Court has not
considered the important fact that the accused persons
only get opportunity to address arguments on the said
issue after summoning and even at the time of framing of
the Charge, can address such issue and in this respect, the
revisionist has relied upon various judgments.
17. This Court is of the considered view that the accused
persons/revisionists ought to have been discharged in the
present case solely on the said ground.
18. Now, the Court will consider the merits of the case as far
as the offences under Sections 323/447/352/34 IPC. The
FIR was not lodged for the offence under Section 323 IPC
Crl. Rev. No. 96/2022 Page - 26 of 32
Kewal Krishan Juneja and Ors. Vs. State
and even in the Supplementary Charge-sheet, which was
filed on 28.03.2016, does not mention about invoking the
provision of Section 323 IPC. No doubt that the Courts are
not post office of investigation agency and the Court has to
look into the entire material while framing the charge. It
appears that after the directions of further investigation,
totally new facts were introduced in the present case,
which were not at all in picture prior to the further
investigation. Further investigation was done after about
three years from the date of commission of offence and in
the said investigation, the IO has got a statement, which
even does not find mention in the original complaint dated
18.11.2012. The complaint dated 18.11.2012 is a written
complaint drafted by a person, who had legal acumen and
in the said complaint, it is nowhere mentioned that son of
the complainant namely Karan and one Mr. Sikka were
present at the place of incident. A totally new story has
been built-up while recording the statements under Section
161 Cr.P.C. The said story is mentioned under para 4(II)
hereinabove. The said allegations were not at all found in
the complaint, which was a typed complaint with complete
legal acumen. Ld. counsel for the revisionists is right in
saying that such improvements have been made in order to
built-up a case under Section 323 Cr.P.C. This Court has a
profit to refer the judgment of Deep Bajwa Vs. State &
Ors. (2004) SCC Online Delhi 1961, wherein, following
Crl. Rev. No. 96/2022 Page - 27 of 32
Kewal Krishan Juneja and Ors. Vs. State
has been held by Hon'ble High Court:-
"...that lacuna or deficiency cannot be filled up by
obtaining additional complaint or supplementary
statement and thereafter proceed to register the F.I.R.. If
such a course is permitted, it would give undue latitude
as well as opportunity to unscrupulous complainants to
nail others by hook or by crook inspite of the fact that
their initial complaint does not make out the offence
complained of. Such a course would be utter abuse of
process of law..."
19. Ld. counsel for the revisionists had argued that in the
Protest Petition, it has been specifically mentioned by the
complainant that they have hired the security agency for
getting the security guard, however, during the further
investigation, the complainant has produced three cash
vouchers in the name of one security guard whose name
has not at all been mentioned either in the complaint and
till the filing of the first Final Report for cancellation.
20. This Court finds force in the said contention of Ld.
counsel for the revisionists that at one place, the
complainant himself alleged that he has engaged the
security agency for keeping the security guards and on the
other hand, the complainant has produced only three cash
vouchers without any supporting ledger accounts/cash
accounts about the payment to one security guard whose
name has seen the light of the day for the first time during
the further investigation.
21. The entire controversy hinges upon the land in question,
which was given to the PNRWA Society. The case of
accused persons is that the complainant had illegally
Crl. Rev. No. 96/2022 Page - 28 of 32
Kewal Krishan Juneja and Ors. Vs. State
cooked-up a case against the revisionists no. 1 to 3, who
are senior citizens of India and revisionists nos. 4 and 5,
were not even present at the spot. The complaint dated
18.11.2012 clearly reveals that the complainant was not
even aware about the names of revisionists nos. 4 and 5
and he has described them as son-in-laws of Mr. K.K.
Juneja. If the complainant was knowing that the
revisionists nos. 4 and 5, who are son-in-laws, then, he
must be knowing their names but the said fact was not
mentioned anywhere in the complaint. It is also alleged in
the complaint that senior citizen had scaled down from the
wall. The perusal of Supplementary Charge-sheet, filed on
28.03.2016, reveals that the revisionist no.1 was 67 years
of age and revisionist no.3 was 72 years of age. The
scaling down from the wall of such senior citizens only to
stop the demolition of the construction of club looks to be
far-fetched theory of the complainant.
22. In the case reported as UOI Vs. Prafulla Kumar Samal &
Anr. AIR 1979 SC 366, Hon'ble Apex Court observed as
under:-
"10. Thus on consideration of authorities mentioned above,
the following principles emerge:
1. That the judge while considering the question of framing
the charges under Sec. 227 of the Code has the undoubted
power to sift and weigh the evidence for the limited purpose
of finding out whether or not a prima facie case against the
accused has been made out;
2. Where the materials placed before the court disclose grave
suspicion against the accused which has not been properly
Crl. Rev. No. 96/2022 Page - 29 of 32
Kewal Krishan Juneja and Ors. Vs. State
explained, the court will be fully justified in framing a charge
and proceedings with the trial;
3. The test of determine a prima facie would naturally
depend upon the facts of each case and it is difficult to lay
down a rule of universal application. By and large, however,
if two views are equally possible and the judge is satisfied
that the evidence produced before him while giving rise to
some suspicion but not grave suspicion against the accused,
he will be fully within his right to discharge the accused.
4. That in exercising his jurisdiction under Sec. 227 of the
Code the judge which under the present Code is a senior and
experienced court cannot act merely as a post office or a
mouthpiece of the prosecution but has to consider the broad
probabilities of the case, the total effect of the evidence and
the documents produced before the court, any basis infirmities
appearing in the case and so on. This however, does not mean
that the judge would make a roving inquiry into the pros and
cons of the matter and weigh the evidence as if he was
conducting a trial."
23. The present case appears to be a civil case, which was
given the flavour of criminal case. The revisionists nos. 1
to 3 alleged that they were the members of PNRWA
Society and within their legitimate rights, they have
entered into the premises in question and there cannot be
any question of their trespassing the land, of which, they
are the members. It is further argued that initially, the
documents were not placed by the IO but later on, as per
the directions of the then Ld. ACMM, the IO has verified
the documents and filed Supplementary Charge-sheet. It is
also the case of revisionists nos. 1 to 3 that the civil
litigation is going on between the parties.
24. It appears that even if, the revisionists nos. 1 to 3 entered
Crl. Rev. No. 96/2022 Page - 30 of 32
Kewal Krishan Juneja and Ors. Vs. State
into the land/plot, the dominant purpose was not to
trespass the property and further, they themselves have
submitted various documents, which show that they may
have membership rights in the PNRWA Society. However,
this Court is not examining the said question in detail as
the said question is to be considered by the Civil Court.
Ld. counsel has relied upon the judgments titled as
Lakshmana Koundan Vs. King Emperor (supra) and
Jawanmal Vs. Mst. Bhanwari (supra), wherein, the
Hon'ble Court has held that while entering in the land, it
has to be seen, what was the dominant intention of the
accused persons, however, in the present case, it does not
look that the dominant intention was to trespass the
property/ land in question at any point of time.
25. In the case reported as Dilawar Balu Kurane Vs. State of
Maharashtra (2002) 2 SCC 135, the Hon'ble Apex Court
clearly observed that - "by and large if two views are
possible and the judge is satisfied that the evidence
produced before him while giving rise to some suspicion
but to grave suspicion against the accused, he will be
fully justified to discharge the accused in exercising
jurisdiction under Sec. 227 of the Code of Criminal
Procedure." The said principle is already canvassed in the
Judgment of Prafulla Kumar (Supra.).
26. Considered from any view point, this Court is of the
opinion that the charges framed against the accused
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Kewal Krishan Juneja and Ors. Vs. State
persons/revisionist are not sustainable and the accused
persons/revisionists are entitled to be discharged.
FINAL ORDER:
27. In view of the above observations, this Court is passing the
following final order:-
ORDER
(a) The present Revision Petition is hereby allowed and accordingly, the impugned order dated 11.03.2022 is hereby set aside. The revisionists/accused persons are discharged for the offences levelled against them.
(b) The copy of this order be sent forthwith to the Ld. Trial Court for information. File of revision petition be consigned to Record Room after due compliance.
Announced in the open Court on this 4th day of September, 2023.
(ARUN SUKHIJA) Addl. Sessions Judge-03 (East) Karkardooma Courts: Delhi Crl. Rev. No. 96/2022 Page - 32 of 32