Delhi District Court
Nisha Sharma vs State on 17 September, 2022
IN THE COURT OF SHRI SANJEEV KUMAR-II,
SPECIAL JUDGE (NDPS)-02, CENTRAL DISTRICT,
TIS HAZARI COURTS, DELHI
Criminal Revision No. 324/2022
CNR No. DLCT01-008780-2022
1. Nisha Sharma
W/o Neeraj Sharma,
R/o IX/4314, Gali Kayasthan 3,
Ansari Road, Daryaganj,
New Delhi.
2. Moksh Sharma,
W/o Neeraj Sharma,
R/o IX/4314, Gali Kayasthan 3,
Ansari Road, Daryaganj,
New Delhi. ....Revisionists
Versus
1. State,
Through Government of NCT
2. Ashok Kumar Sharma,
S/o Late Sh. L. C. Sharma,
R/o IX/4314, Gali Kayasthan 3,
Ansari Road, Daryaganj,
New Delhi. ...Respondents
Preferred on : 03.06.2022
Reserved on : 16.08.2022
Pronounced on : 17.09.2022
JUDGMENT
This revision has been filed under section 397 of the Code of Criminal Procedure, 1973 (in short 'CrPC') against the order dated 20.09.2021 passed by the learned Metropolitian Magistrate, Central District, Tis Hazari Courts, Delhi, in CIS No. 1986/2018, Criminal Revision No. 324/2022 Nisha Sharma & Anr. v. State & Anr. 1 titled as "Ashok Kumar Sharma v. State" whereby revisionist have been summoned for the offences under Section 448/451/425/426/34 IPC.
Submissions
2. Mr. Varun Juneja, learned counsel appearing for the revisionis has submitted that revisionists are wife and son of the Shri Neeraj Sharma, owner of the property in question, therefore no offence of trespass is made out. Owner cannot commit offence of trespass in his own property. There is not a single document on record to show that the property/terrace in question was exclusively owned and in exclusive possession of the respondent no. 2 to exclusin of all others. The respondent no. 2 while filing the complainant has failed to produce the court settlement recorded by the learned Additional Rent Controller vide order dated 09.11.2006 whereby the respondent no. 2 has agreed to be a tenant of his father Late Mr. Lal Chand Sharma and only have access to the roof for the purpose of looking at the water tank from his side of the staircase. As per registered wills dated 08.05.2010 and 24.11.2012 executed by Late Shri Lal Chand and then by wife Late Mrs. Dayawanti Sharma respectively, Mr. Neeraj Sharma that is the husband and father of revisionist no. 1 and 2 respectively became its rightful owner. As per section 58 of The Indian Evidence Act, 1872 facts admitted need not be proved. That without admitting anything in particular, it is submitted that the respondent no.2 has admitted that he is not in exclusive possession or ownership of the property and his best case is that the revisionists and respondent no.2 are co-owners and jointly using the property. Keeping in mind the said Criminal Revision No. 324/2022 Nisha Sharma & Anr. v. State & Anr. 2 admission on the part of respondent no.2 of the parties being co- owners, without admitting any of the claims of the respondent no.2 herein, the question of the revisionists being trespassers does not arise. Reliance is placed on the decision of the Hon'ble Supreme Court in the case of Seth Ramdayal Jat v. Laxmi Prasad, (2009) 11 SCC 545; K G Premshankar v. Inspector of Police, 2002 8 SCC 87 and Virender Kumar Singh & Anr. v. Securities and Exchange Board of India, Crl. M. C. No. 2145/2006 decided by Hon'ble High Court on 30.01.2008.
3. On the other hand, learned Additional Public Prosecutor for the state-respondent no. 1 has submitted that the there is no error or infirmity in the impugned order.
4. The respondent no. 2 has opposed the revision petition stating that the Hon'ble High Court of Delhi in Suit No.1398/2010 vide order dated 16/07/2010 has passed interim order in respect of the suit property, which has been continued later on. The Public Notice was published in news paper dated 08/08/2010 declaring and publically announcing that the property in question is under litigation before the Hon'ble Court of Delhi and the order for status quo has been passed vide order dated 16.07.2010. Five cases i.e. suit for partition, probate of will, suit for recovery of posssession and two contempt petitions are pending in respect of the property in question. The petition filed by late Shri Lal Chand Sharma was compromised in appeal without prejudice to the rights of the parties on merits of this case. No benefit of order passed by the learned Trial Court shall be availed by the respondent (Late Shri Lal Chand Sharma) against the Appellant. The will dated 24/11/2012 executed by late Criminal Revision No. 324/2022 Nisha Sharma & Anr. v. State & Anr. 3 Smt. Dayawati Sharma who expired on 12/03/2021, no application has been filed for probate in the Court of Law till date. Since the will dated 08/05/2010 executed by late Shri Lal Chand Sharma expired on 01/07/2011 has not been probated till date still pending in the Hon'ble Court of learned Additional Sessions Judge, how late Smt. Dayawati will dated 24/11/2012 came into effect. Thus, there is no question of Mr. Neeraj Sharma and Mrs. Geeta Kaushik to become owner of property in question.
Brief facts
5. The complainant (respondent no.2 herein) filed a complaint- application under Section 156 (3) CrPC against the revisionist herein before Learned Metropolitan Magistrate alleging that there is one room set and chatt/rooftop area on the top floor and on the roof top area two water tanks of the complainant has been installed and there is a gate which is locked by the complainant to protect the cemented water tank and roof top area. A complaint dated 11.01.2018 was filed by the respondent no. 2 Ashok Kumar Sharm to the SHO PS Darya Ganj, to the effect that on 10.01.2018 false and fabricated call on 100 number was made by Nisha Sharma (one of the revisionist herein) and others to harass and his family to instigate police officials to take unwarranted action against him and his family. On the same day, his wife informed him, while he was in hospital, that Nisha Sharma and Moksh Sharma in collision with Neeraj Sharma had brake open the locks of doors at the top floor and a video was recorded by his wife of the incident by her mobile phone regarding breaking of the one of the locks.
Criminal Revision No. 324/2022 Nisha Sharma & Anr. v. State & Anr. 4
6. Learned Magistrate declined to direct SHO to register FIR but after taking cognizance matter was posted for pre- summoning evidence and complainant-respondent no. 2 herein and his wife Ms Kavita Sharma were examined as PW2 and PW1 respectively.
Analysis and Conclusion
7. The learned Trial Court has passed impugned order at the stage of issuance of summons to the revisionist. Now, question is what are required to be considered at the stage of taking cognizance and issuance of summon. Hon'ble three-Judge Bench of the Supreme Court in Sonu Gupta v. Deepak Gupta & Ors. [Criminal Appeal Nos. 285-287 of 2015 decided on 11.02.2015] held that at the stage of cognizance and summoning the Magistrate is required to apply his judicial mind only with a view to take cognizance of the offence, or, in other words, to find out whether prima facie case has been made out for summoning the accused persons. At this stage, the learned Magistrate is not required to consider the defence version or material or arguments nor he is required to evaluate the merits of the materials or evidence of the complainant, because the Magistrate must not undertake the exercise to find out at this stage, whether the materials will lead to conviction or not. It is also well settled that cognizance is taken of the offence and not the offender. Hence at the stage of framing of charge an individual accused may seek discharge if he or she can show that the materials are absolutely insufficient for framing of charge against that particular accused. But such exercise is required only at a later stage, as indicated above and not at the stage of taking cognizance and summoning Criminal Revision No. 324/2022 Nisha Sharma & Anr. v. State & Anr. 5 the accused on the basis of prima facie case. Even at the stage of framing of charge, the sufficiency of materials for the purpose of conviction is not the requirement and a prayer for discharge can be allowed only if the court finds that the materials raising strong suspicion against an accused, the court will be justified in rejecting a prayer for discharge and in granting an opportunity to the prosecution to bring on record the entire evidence in accordance with law so that case of both the sides may be considered appropriately on conclusion of trial.
8. In Fiona Shrikhande v. State of Maharashtra & Anr., Criminal Appeal No. 1231 Of 2013 decided on 22.08.2013, Hon'ble Supreme Court has held that:
"11. We are, in this case, concerned only with the question as to whether, on a reading of the complaint, a prima facie case has been made out or not to issue process by the Magistrate. The law as regards issuance of process in criminal cases is well settled. At the complaint stage, the Magistrate is merely concerned with the allegations made out in the complaint and has only to prima facie satisfy whether there are sufficient grounds to proceed against the accused and it is not the province of the Magistrate to enquire into a detailed discussion on the merits or demerits of the case. The scope of enquiry under Section 202 is extremely limited in the sense that the Magistrate, at this stage, is Criminal Revision No. 324/2022 Nisha Sharma & Anr. v. State & Anr. 6 expected to examine prima facie the truth or falsehood of the allegations made in the complaint. Magistrate is not expected to embark upon a detailed discussion of the merits or demerits of the case, but only consider the inherent probabilities apparent on the statement made in the complaint. In Nagawwa v. Veeranna Shivalingappa Konjalgi and Others (1976) 3 SCC 736, this Court held that once the Magistrate has exercised his discretion in forming an opinion that there is ground for proceeding, it is not for the Higher Courts to substitute its own discretion for that of the Magistrate. The Magistrate has to decide the question purely from the point of view of the complaint, without at all adverting to any defence that the accused may have."
9. In the case of Pepsi Foods Ltd. v. Special Judicial Magistrate, (1998) 5 SCC 749, it is observed and 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 Criminal Revision No. 324/2022 Nisha Sharma & Anr. v. State & Anr. 7 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.""
10. In Mehmood Ul Rehman v. Khazir Mohammad Tunda and others, Criminal Appeal No. 1347 of 2010 it was held on 31.03.2015:
"21. The extensive reference to the case law would clearly show that cognizance of an offence on complaint is taken for the purpose of issuing process to the accused. Since it is a process of taking judicial notice of certain facts which constitute an offence, there has to be application of mind as to whether the allegations in the complaint, when considered along with the statements recorded or the inquiry conducted thereon, would constitute violation of law so as to call a person to appear before the criminal court. It is not a mechanical process or matter of course. As held by this Court in Pepsi Foods Limited (supra), to set in motion the process of criminal law against a person is a serious matter.
22. Under Section 190(1)(b) of CrPC, the Magistrate has the advantage of a police report and under Section 190(1)(c) of CrPC, he has the information or knowledge of commission of an offence. But under Section 190(1)(a) of CrPC, he has only a complaint before him. The Code hence specifies that ... "a complaint of facts which constitute such offence". Therefore, if the complaint, on the face of it, does not disclose the commission of any offence, the Magistrate shall not take cognizance under Section 190(1)(a) of CrPC. The complaint is simply to be rejected.
23. The steps taken by the Magistrate under Section 190(1) (a) of CrPC followed by Section 204 of CrPC should reflect that the Magistrate has applied his mind to the facts and the statements and he is satisfied that there is ground for proceeding further in the matter by asking the person against whom the violation of law is alleged, to appear before the court. The satisfaction on the ground for proceeding would mean that the facts alleged in the Criminal Revision No. 324/2022 Nisha Sharma & Anr. v. State & Anr. 8 complaint would constitute an offence, and when considered along with the statements recorded, would, prima facie, make the accused answerable before the court. No doubt, no formal order or a speaking order is required to be passed at that stage. The Code of Criminal Procedure requires speaking order to be passed under Section 203 of CrPC when the complaint is dismissed and that too the reasons need to be stated only briefly. In other words, the Magistrate is not to act as a post office in taking cognizance of each and every complaint filed before him and issue process as a matter of course. There must be sufficient indication in the order passed by the Magistrate that he is satisfied that the allegations in the complaint constitute an offence and when considered along with the statements recorded and the result of inquiry or report of investigation under Section 202 of CrPC, if any, the accused is answerable before the criminal court, there is ground for proceeding against the accused under Section 204 of CrPC, by issuing process for appearance. Application of mind is best demonstrated by disclosure of mind on the satisfaction. If there is no such indication in a case where the Magistrate proceeds under Sections 190/204 of CrPC, the High Court under Section 482 of CrPC is bound to invoke its inherent power in order to prevent abuse of the power of the criminal court. To be called to appear before criminal court as an accused is serious matter affecting one's dignity, self respect and image in society. Hence, the process of criminal court shall not be made a weapon of harassment."
11. In present case, during pre-summoning evidence, the respondent no. 2 herein has got examined himself as CW2 and his wife Kavita Sharma as CW1. CW1 has deposed that on 10.01.2018, in the morning a false and fabricated call on 100 number was made by Ms. Nisha Sharma W/o Neeraj Sharma to the police. After that police came to her house for inquiry regarding the call, she told them that Nisha Sharma has lodged the false complaint regarding beating of Smt. Dayawati sharma (her mother-in-law) by her husband. She told the police that there were so many CCTV installed in their house and there was no CCTV footage regarding beating of her mother-in-law. After some time, her husband Ashok Kumar Sharma went to the Criminal Revision No. 324/2022 Nisha Sharma & Anr. v. State & Anr. 9 hospital for his treatment. On 10.01.2018, at about 2:00 pm Smt. Nisha Sharma and Moksh Sharma had broken the locks of their doors at the top floor and in this regard, she recorded a video by mobile regarding the breaking of one of the locks. When she had gone on the roof she found that the second lock was also broken.
12. CW2 stated that on 10.01.2018 in the morning a false call at 100 number was made by Nisha Sharma w/o Neeraj Sharma to the effect that he had beaten his mother Smt. Dayawati Sharma. The police came at the spot for making necessary inquiry. He told police officials that CCTV Camera have been installed in the house and they can check the CCTV footage and can take action, if any wrong is found. Police left the spot and he went to the hospital. On the same day, at about 2:30 PM, he received a call from his wife namely Smt. Kavita Sharma to the effect that Smt. Nisha Sharma and Moksh Sharma had broken the locks of their door at the top floor in collusion with Neeraj Sharma. His wife prepared a video of the incident by her mobile phone. He took that video footage in a CD and got developed photographs. He visited the rooftop along with his wife and found that another lock also broken.
13. The video footage has been placed on record by the respondent no. 2 herein before the learned Trial Court. The video footage has been shown by the respondent no. 2 herein during the course of arguments. In said footage, the revisionists are seen beaking the lock by putting some cloths to hide the same. It is not admitted by the respondent no. 2 herein that revisionists are owner of the property in question. Several litigations are stated to Criminal Revision No. 324/2022 Nisha Sharma & Anr. v. State & Anr. 10 be pending qua the said property between the parties. At the stage of summoning of the accused, only prima facie case is to be seen by learned Trial Court. As per section 204 of the CrPC if in the opinion of a Magistrate taking cognizance of an offence there is sufficient ground for proceeding and and the case appears to be a warrant-case, he may issue a warrant, or, if he thinks fit, a summons, for causing the accused to be brought or to appear at a certain time before such Magistrate or (if he has no jurisdiction himself) some other Magistrate having jurisdiction. Keeping in view the complaint, pre-summoning evidence and video footage, it can be said that there were sufficient ground for proceeding against the revisionists for summoning them for the offences punishable under Sections 448/451/425/426/34 of the IPC and therefore, learned Trial Court has rightly summoned the revisionists. Hence, revision is dismissed. The observations mentioned in this judgment shall not have bearing on merits of the case.
Digitally signed by SANJEEV SANJEEV KUMAR
KUMAR Date: 2022.09.17
Dated: 17.09.2022 16:43:46 +0530
(Sanjeev Kumar-II)
Special Judge, (NDPS)-02,
Central District, Tis Hazari Courts, Delh
Criminal Revision No. 324/2022 Nisha Sharma & Anr. v. State & Anr. 11