Delhi District Court
Dr. Er. Rajainderr Jaina vs State Of Nct Of Delhi on 27 February, 2023
IN THE COURT OF SHRI SUNIL GUPTA
ADDITIONAL SESSIONS JUDGE-6, SOUTH DISTRICT
SAKET COURTS, NEW DELHI
REVISION PETITION NO. 84/2022 (RBT 84 /2022)
IN THE MATTER OF:
Dr. ER. Rajainderr Jaina
S/o Late Sh. T.C. Jaina
R/o Rerapanth, Niketan
FF, Flat No-P, Sagar Apartment 6,
Tilak Marg, New Delhi-110001.
........Revisionist
Versus
1. State of NCT of Delhi.
2. Rahul Jaina
R/o B-54A, 3rd Floor, G.K.-1,
New Delhi-110041.
3. Sudha Jaina
R/o B-54A, 3rd Floor, G.K.-1,
New Delhi-110041.
Crl Rev. No. 84/2022 Dr. Er. Rajainderr Jaina Page No. 1/ 9
Vs.
State & Ors.
Digitally
signed by
SUNIL SUNIL GUPTA
Date:
GUPTA 2023.02.27
16:42:29
+0530
4. Ravinder Singh
Address T-103, Begumpur, Malviya Nagar,
New Delhi-110017.
....... Respondents
Instituted on :16.03.2022
Reserved on :not reserved
Pronounced on :27.02.2023
JUDGMENT
1. Vide this judgment, I shall dispose of present revision petition U/s 397 Cr.P.C preferred by Mr. Dr. ER. Rajainderr Jaina against the order dated 03.02.2022 passed by Ld. MM-02/Saket/South/Delhi in complaint case no. 762/2021 titled as Dr. Er. Rajainderr Jaina Vs. Rahul Jaina & Ors. whereby his application U/s 156(3) Cr.P.C was dismissed.
2. Briefly stated the facts as per record are as under:-
The revisionist herein has filed a complaint U/s 200 Cr.P.C alongwith application U/s 156(3) Cr.P.C before Ld. Trial Court against the respondents namely Rahul Jaina, Sudha Jaina and Ravinder Singh. It was alleged that he had purchased a plot/property bearing no. B-2 MMTC/STC Building in Malviya Nagar through perpetual lease deed dated 16.10.1987 in his name from DDA. Said property was constructed till 3rd Floor by him through his hard earned money. First floor thereof was retained by him. Rest of the floors were alloted/licensed by him two Crl Rev. No. 84/2022 Dr. Er. Rajainderr Jaina Page No. 2/ 9 Vs. State & Ors.
Digitally
signed by
SUNIL
SUNIL GUPTA
GUPTA Date:
2023.02.27
16:42:37
+0530
different persons as per the terms of agreement between them. The first floor was further partitioned by him and the property bearing no. RMT 205A and 209A of the same was allotted by him. Respondent no.2 & 3 (son and wife of the revisionist respectively) in connivance with respondent no.4 are alleged to have locked the main gate of the property due to which the revisionist was unable to access his portion of property i.e., 206A, 207A & 208A and as also the balance portion of property bearing no.202A, 203A & 204A totaling 1063.6 Sq. feet which is in his exclusively possession and belongs to him. It was alleged that respondents have voluntarily obstructed him in visiting his property bearing no. 206A, 207A, 208A first floor as also balance portion of bearing no. 202A, 203A & 204A total in 1063.6 Sq. feet of B-2 MMTC/STC Building in Malviya Nagar. It was further alleged that respondents do not have any title or interest in the above said property. It was further alleged whenever he had tried to access this property, respondent no.2 alongwith respondent no.4 had assaulted him and caused hurt to him. They also allegedly threatened to kill him if he tried to confront them in any manner. It was alleged that he has already filed complaints dated 02.09.2020, 07.09.2020, 11.09.2020, 12.09.2020, 16.09.2020 and 02.12.2020 in police station Malviya Nagar but no action was taken. The complaint was also made in writing to ACP & DCP concerned but still no action was taken. Accordingly, the application U/s 156(3) Cr.P.C was moved before Ld. Trial Court praying for directions to police to register an FIR for the offences U/s 341/447/448/451/452 r/w 120B IPC against the respondents. After considering, the ATR filed by Crl Rev. No. 84/2022 Dr. Er. Rajainderr Jaina Page No. 3/ 9 Vs. State & Ors.
Digitally signed by SUNIL SUNIL GUPTA GUPTA Date:
2023.02.27 16:42:50 +0530 police alongwith material on record and submissions of Ld. Counsel for revisionist, the application U/s 156(3) Cr.P.C was dismissed by Ld. Trial Court vide order dated 03.02.2022. Said order is being challenged in these proceedings.
3. Arguments heard.
It has been argued by Ld. Counsel for the revisionist that Ld. Trial Court has dismissed his application after ignoring the settled law and Judicial Principles. It was argued that the complaint/application filed on behalf of revisionist clearly discloses commission of cognizance offence so the directions to police for registration of FIR and to conduct investigation should have been issued. It was further argued that Ld. Trial Court has dismissed his application on the ground that all the facts and circumstances are within his knowledge so there is no requirement of police investigation however, it was submitted that assistance of police is required as this is a complicated case involving family members. Further, the revisionist is under apprehension that his goods lying in his portion of the property might have been stolen by the respondents and this fact can be investigated by police only. He has prayed that the impugned order may be set aside and the directions may be issued to SHO concerned for registration of FIR and for conducting investigation as per law.
4. Per Contra, it has been submitted by Ld. Counsel for respondents that this is a classic case where the process of law is being misused by Crl Rev. No. 84/2022 Dr. Er. Rajainderr Jaina Page No. 4/ 9 Vs. State & Ors.
Digitally
signed by
SUNIL SUNIL GUPTA
Date:
GUPTA 2023.02.27
16:42:59
+0530
the revisionist. It has been argued that the property in question i.e., property bearing no. 206A, 207A & 208A was with M/s Muller Martini (India) Pvt. Ltd. on lease and same was vacated on 31.07.2020. Before vacating the same, information was given to the revisionist as well as respondent no.2 & 3 regarding their intention to vacate the premises and for handing over the keys however, the revisionist did not appear so the keys were handed over to them. It has been further argued that other litigations are also going on between the parties including arbitration proceedings and the proceedings before Ld. Family Court. It was further argued that the possession of property bearing no. 206A, 207A & 208A was not with the revisionist rather same was with M/s Muller Martini (India) Pvt. Ltd. and the keys thereof were handed over to them on the premises being vacated so there is no question of criminal trespass or any other offence. It has been submitted that this litigation has been filed just to harass them so that they are forced to withdraw the matrimonial proceedings filed against the revisionist. She has prayed that the revisionist petition be dismissed.
5. I have considered the arguments alongwith record.
The relevant portion of impugned order is being reproduced below for ready reference:-
"In the present case also there is no justification for directing the police for registration of FIR, request U/s 156(3) Cr.P.C is declined, as all the facts and circumstances are within the knowledge of the complainant Crl Rev. No. 84/2022 Dr. Er. Rajainderr Jaina Page No. 5/ 9 Vs. State & Ors.
Digitally
signed by
SUNIL SUNIL GUPTA
Date:
GUPTA 2023.02.27
16:43:08
+0530
including identity of the alleged persons and documentary evidence, as well as the names and address of the concerned witnesses. Thus, there is no ground on which the assistance of the police is required. Further, if at any stage the court is of the opinion that investigation in the matter is required, the court will be within its power to order investigation U/s 202 of Cr.P.C, and this order shall in no way bar such investigation at latter stage."
6. Admittedly, the revisionist herein is the father of the respondent no.2 and husband of respondent no.3 and several other litigations are going on between them. It has been alleged by the revisionist that the portion of his property bearing no. RMT-206A, 207A & 208A has been trespassed by the respondents and he has been wrongfully restrained from accessing that property. It appears that first complaint to this effect was made to police on 02.09.2020 whereas the application U/s156(3) Cr.P.C was filed before Ld. Trial Court in June 2021. The revisionist has not made any efforts for explaining the said delay either in his application U/s 156(3) Cr.P.C before Ld. Trial Court or before this Court in the revision petition. Also, it appears that the revisionist is not clear about his case as he has mentioned in paragraph 8 of his complaint U/s 200 Cr.P.C (contents of the same are to be read as part and parcel of his application U/s 156(3) Cr.P.C) that the respondent no.2 & 3 alongwith one Ms. Pooja Jaina had illegal trespassed and grabbed the property no. 202A, 203A & 204A whereas during the course of arguments before this Court, Ld. Counsel for revisionist has submitted that this case is not Crl Rev. No. 84/2022 Dr. Er. Rajainderr Jaina Page No. 6/ 9 Vs. State & Ors.
Digitally
signed by
SUNIL
SUNIL GUPTA
GUPTA Date:
2023.02.27
16:43:16
+0530
pertaining to said property. The submission of Ld. Counsel for revisionist that his goods lying in said property (bearing no. 206A, 207A & 208A) seems to be misplaced as admittedly the property in question was in possession of M/s Muller Martini (India) Pvt. Ltd. till 31.07.2020 and thereafter, the keys are with respondents no.2&3. In these circumstances, it is not clear as to how the goods /articles belonging to revisionist could have been there. The revisionist has not even specified the goods allegedly so stolen by the respondents. In these facts, this Court is of the view that the alleged offences can be proved by the testimony of the revisionist and other witnesses, if any and there is no requirement of police investigation. Moreover, police investigation can be ordered U/s 202 Cr.P.C later on in case, Ld. Trial Court deems it necessary.
7. It is settled law that for directions to register an FIR U/s 156(3) Cr.P.C, it is not sufficient that the allegations disclose commission of a cognizable offence rather alongwith that it is also to be seen as to whether there is requirement of investigation by police. Reliance is placed on the judgment of Hon'ble Apex Court titled as XYZ Vs. State of Madhya Pradesh 2022 Live Law (SC) 676, in which it was held as under:-
Therefore, in such cases, where not only does the Magistrate find the commission of a cognizable offence alleged on a prima facie reading of the complaint but also such facts are brought to the Magistrate's notice which clearly indicate the need for police investigation, the discretion granted in Section 156 (3) can only be read as it being the Crl Rev. No. 84/2022 Dr. Er. Rajainderr Jaina Page No. 7/ 9 Vs. State & Ors. Digitally signed by SUNIL SUNIL GUPTA GUPTA Date:
2023.02.27 16:43:25 +0530 Magistrate's duty to order the police to investigate.
8. So, Hon'ble Apex Court has held that it is the duty of Magistrate to order the police to investigate the cases where commission of a cognizable offence is prima facie made out and such facts are brought to his notice indicating the need for police investigation. As mentioned earlier, there is nothing on record to show the need for police investigation in this particular matter so Ld. Magistrate has rightly exercised his discretion in declining to order investigation by police u/s 156 (3) CrPC.
9. It is settled law that while exercising the power of revisional jurisdiction, this Court can interfere only when the impugned order is perverse or untenable in law. Reliance is placed upon judgment of Hon'ble Apex Court in Sanjaysinh Ramrao Chavan vs. Dattatray Gulabrao Phalke and others, 2015 (3) SCC 123 wherein it has been observed as under :-
"14.....Unless the order passed by the Magistrate is perverse or the view taken by the court is wholly unreasonable or there is non- consideration of any relevant material or there is palpable misreading of records, the Revisional Court is not justified in setting aside the order, merely because another view is possible. The Revisional Court is not meant to act as an appellate court.The whole purpose of the revisional jurisdiction is to preserve the Crl Rev. No. 84/2022 Dr. Er. Rajainderr Jaina Page No. 8/ 9 Vs. State & Ors.
Digitally
signed by
SUNIL SUNIL GUPTA
Date:
GUPTA 2023.02.27
16:43:42
+0530
power in the court to do justice in accordance with the principles of criminal jurisprudence. The revisional power of the court under Sections 397 to 401 CrPC is not to be equated with that of an appeal. Unless the finding of the court, whose decision is sought to be revised, is shown to be perverse or untenable in law or is grossly erroneous or glaringly unreasonable or where the decision is based on no material or where the material facts are wholly ignored or where the judicial discretion is exercised arbitrarily or capriciously, the courts may not interfere with decision in exercise of their revisional jurisdiction."
14. In the above case also conviction of the accused was recorded, the High Court set aside the order of conviction by substituting its own view. This Court set aside the High Court's order holding that the High Court exceeded its jurisdiction in substituting its views and that too without any legal basis."
10. Considering the above, this Court is of the view that Ld. Magistrate has passed the impugned order after considering all the relevant factors and there is no illegality so as to justify interference by this Court in revisional jurisdiction. Accordingly, the revision petition stands dismissed.
Digitally signed SUNIL byGUPTA SUNIL GUPTA Date: 2023.02.27 16:43:51 +0530 Announced in the open (Sunil Gupta) Court on 27nd February, 2023 Additional Sessions Judge-06 South, Saket Courts, New Delhi Crl Rev. No. 84/2022 Dr. Er. Rajainderr Jaina Page No. 9/ 9 Vs. State & Ors.