Delhi District Court
Alpna Oberoi vs Abdul Latif on 29 September, 2018
IN THE COURT OF SHRI SANJEEV KUMARII,
ADDITIONAL SESSION JUDGE05, SOUTH EAST DISTRICT,
SAKET COURTS, NEW DELHI
CRIMINAL REVISION NO.204246/2016
IN THE MATTER OF:
Alpna Oberoi
E18, Nizamudin West,
New Delhi ........Revisionist
VERSUS
1. Abdul Latif
S/o Sh. Abdul Sattar
R/O E17, Nizamudin West,
New Delhi
2. State .......Respondents
Date of institution : 02.04.2016 SANJEEV Date of arguments : 13.08.2018 KUMAR Date of order : 29.09.2018 Digitally signed by SANJEEV KUMAR Date: 2018.09.29 JUDGMENT 17:09:54 +0530 This criminal revision has been filed by the revisionist under Section 397 read with Section 401 of the Code of Criminal Procedure, 1973 (in short 'Code') against order dated 15.01.2016 passed by the learned Metropolitan Magistrate03, South East District, Saket Courts, CR No.204246/2016 Alpna Oberoi v. Abdul Latif & Anr. Page No. 1 of 14 New Delhi in Complaint Case No.177/1/12 (New CC No.643/1/14) tittled as 'Abdul Latif v. Ranjan Oberoi & Ors.' whereby the learned Metropolitan Magistrate has summoned the revisionist for the offence punishable under Section 506/34 of the Indian Penal Code, 1860 (in short 'IPC').
2. Learned counsel appearing for the revisionistaccused has submitted that summoning order is not interlocutory order and against said order revision lies. If revisionist says that she will call the police if the complainant would not stop the work, then revisionist is taking legal recourse and same does not fall within the definition criminal intimidation. There are several contradictions and improvements in the statements of CW1 and CW2. There are vague allegations leveled against the revisionist. CW1 states about the incident dated 11.08.2009 whereas CW2 who is the son of the CW1 does not state about the incident dated 11.08.2009 and he states about the incident dated 12.08.2009. No list of witness was filed by the complainant with the complaint before the learned Trial Court before summoning of the revisionist. It is the case of the complainant that threat was given to the labourers also, but labourers have not been examined. Application under Section 156(3) of the Code was dismissed by the learned Trial Court. Learned counsel has placed reliance upon the decisions, namely, Dhariwal Tobaco Products Ltd. And Ors Vs. State of Maharashtra and Ors., MANU/SC/8465/2008; Rajendra Kumar CR No.204246/2016 Alpna Oberoi v. Abdul Latif & Anr. Page No. 2 of 14 Sitaram Pande & and Ors. Vs. Uttam and Ors., MANU/SC/0093/1999; Amar Nath and Ors Vs. State of Haryana and Anr., (1977) 4 Supreme Court Cases 137; The Bihar Eastern Gangetic Fishermen Co Operative Society Ltd. Vs. Sipahi Singh and Ors., (1977) 4 Supreme Court Cases 145; Madhu Limaye Vs. The State of Maharashtra, MANU/SC/0103/1977; K. K. Patel and Ors. Vs. State of Gujarat and Ors., MANU/SC/0386/2000 and M/s Pepsi Food Ltd and Anr Vs. Special Judicial Magistrate and Ors., 1998 SCC (Crl.) 1400.
3. Learned counsel for respondent no.1 (complainant therein) has opposed the revision petition stating that complainant had examined two witnesses in presummoning evidence and learned Trial Court has rightly summoned revisionist for the offence under Section 506 IPC. Revision is not maintainable against the order of summoning and remedy against the summoning order lies only in Hon'ble High Court. Learned counsel has placed upon the decisions, namely, Devendra Kishanlal Dagalia Vs. Dwarkesh Diamonds Pvt. Ltd. & Ors., 2014(1) LRC 147 (SC); Subramanium Sethuraman Vs. State of Maharashtra & Anr., Appeal (Crl.) 1253 of 2002; Adalat Prasad Vs. Rooplal Jindal & Ors., Appeal (Crl.) 91 of 2002 and Garhwal Mandal Vikas Nigam Vs. Mata Garg & Co. Chartered Accountants & Anr., 2011(1) LRC 417 (Ukd).
4. On the other hand, learned Additional Public Prosecutor for CR No.204246/2016 Alpna Oberoi v. Abdul Latif & Anr. Page No. 3 of 14 the Staterespondent no.2 has opposed the revision petition.
5. I am not agree with the contention of learned counsel for respondent no.1complainant that against summoning order, revision is not maintainable and against the summoning order, revisionist should have approached before Hon'ble High Court. In Adalat Prasad (supra) and Subramanium Sethuraman (supra) which have been relied upon by the learned counsel for respondent no.1, it was not held by the Hon'ble Supreme Court that against the summoning order, revision does not lie. Whereas in Dhariwal Tobaco (supra), Rajender Kumar (supra) and K.K. Patel (supra), Hon'ble Supreme Court has clearly held that summoning order is not interlocutory order within the meaning of Section 397(2) of the Code. Section 397 (2) of the Code provides that the powers of revision conferred by subsection (1) shall not be exercised in relation to any interlocutory order passed in any appeal, inquiry, trial or other proceeding. The revision is maintainable if impugned order is not interlocutory order and against which no appeal lies. Against the summoning order, no appeal lies. And further summoning is not interlocutory order. Hence, revision is maintainable.
6. Complainant Abdul Latif is respondent no.1 in the present revision. He has filed complaint under Section 200 of the Code for offences under Section 323,327,341,452 and 506 read with Section 34 IPC before learned Trial Court. He had examined himself as CW1 CR No.204246/2016 Alpna Oberoi v. Abdul Latif & Anr. Page No. 4 of 14 and his son Imran Latif as CW2 in presummoning evidence. By impugned order, learned Trial Court has summoned revisionist and three other persons for the offence under Section 506 read with Section 34 IPC. That summoning order has been impugned in this revision petition.
7. In Kanshi Ram v. State, 2001 (1) Crimes 20, Hon'ble Delhi High Court observed/held:
"10. So far as the offence under Section 506 Indian Penal Code is concerned, the complainant Israr Ahmed stated in his case diary statement that at the relevant time the petitioner had exhorted his security personnel to thrash the journalists. According to Israr Ahmed, the exact words used by the petitioner were "Maro Salon Ko". Strangely enough, Israr Ahmed has nowhere stated in his statement that the alleged threat had caused an alarm to him. On the contrary the circumstances of the case clearly go to show that even after the alleged threat, the complainant or other media persons did not retrace their steps. It is well settled that mere threat is no offence. That being so the threat alleged to have been given by CR No.204246/2016 Alpna Oberoi v. Abdul Latif & Anr. Page No. 5 of 14 the petitioner does not fall within the mischief of Section 506 Indian Penal Code. Consequently, no charge under Section 506 Indian Penal Code can be framed against the petitioner on the basis of the said evidence."
8. In Surinder Suri v. State of Haryana & Ors., 1996 (2) RCR (Criminal) 701, Hon'ble Punjab & Haryana High Court quashed the FIR because the allegations made at the time of incident by petitioners/accused were not with an intent to cause alarm to the complainant.
9. In Satnam Singh v. State of Punjab, (Crl. Misc. No. M3141 of 2011), Hon'ble Punjab & Haryana High Court had held that gist of the offence under Section 506 IPC is that the threat is intended to have upon the mind of the person threatened and mere vague allegations will not satisfy the essential ingredient of Section 506 IPC
10. In Anil Mehra v. Ajmer Singh, 1991 (1) RCR (Criminal) 699, Hon'ble Punjab & Haryana High Court quashed the criminal proceedings on the ground that empty threats, without mens rea to cause injury would not amount an offence under Section 506 IPC.
11. In Meen Raj v. State, represented though the Inspector of Police [Crl.O.P. (MD) No. 10951 of 2012], Hon'ble Madras High CR No.204246/2016 Alpna Oberoi v. Abdul Latif & Anr. Page No. 6 of 14 Court held/observed the defecto complainant's daughter arrayed as one of the witnesses and the statement recorded under Section 161 of the Code, revealed that the petitioner made a life threat to the second respondent and his daughter; that it will not constitute any offence against the petitioner because the empty threats does not prima facie mean that the case under Section 506 IPC is made out against the petitioner.
12. In Sarvesh Chaturvedi & Anr. v. State NCT of Delhi & Anr., (CRL.REV. P. 31/2013) decided on 10.02.2015 by Hon'ble Delhi High Court, the accused was acquitted for the offence under Section 506 IPC by the learned Metropolitan Magistrate holding that mere threat does not fall within the definition of criminal intimidation unless it is proved that the threat given by the accused caused an alarm to the witness and appeal filed against the said order was also dismissed by the learned Court of Session. Revision filed against the said orders was also dismissed by Hon'ble Delhi High Court.
13. Hence, for the offence of criminal intimidation punishable under Section 506 IPC, the threat should be a real one and same should not be empty. Further, it has to be shown that threats were made with an intent to cause alarm or that an alarm was caused to the complainant.
14. CW1 Abdul Latif had deposed in respect of criminal CR No.204246/2016 Alpna Oberoi v. Abdul Latif & Anr. Page No. 7 of 14 intimidation/threat that:
"I have purchased the above said property in the year 2005. After purchasing of the said property, I had started construction over there. But Ranjana Oberai and Indu Oberai misbehaving with my labour and threatened that stop work because due the construction their house it will create hurdle to them because the construction material was lying outside the house on which I requested so many times to Ranjna Oberai not to abuse of treat the labour due your fear, no labour is ready to work in the premises at the time Indu and her two daughters Alpna and Ambika came out from the house and started misbehaving with me and threatened that if you would not stop the work then they call the police and they further threatened that their one of relatives is Colonel came there and threatened that if you would not stop the work then they implicate me and my family in false cases."
He has further deposed in respect of criminal intimidation/ threat that:
CR No.204246/2016 Alpna Oberoi v. Abdul Latif & Anr. Page No. 8 of 14 "On 11.08.2009 at about 08.30 a.m., I along with my son was present at my house and giving directions to the labours regarding the work. In the meantime, 4 persons entered in the house along with Ambika and Ranjana who were having Dandas in their hands and they locked the door from inside and the other unknown persons and Ranjana Oberai started beating me and my sons with kicks and Dandas on which we raised the voices then the public persons came there and saved us from their hands. At the time, Ranjana Oberai threatened that "kutte ke bache agar apna makan banwana hai to tu mujhe seewage thik karne ke do lakh rupaye de, agar nahi dega to me rishtedar Lt. Col. Rajesh Kochar "jo arty mai hai tujhe jhute case mai faswa dega, use police walo ke saath achche relation hai aur agar police me complaint kari to tuje aur tere parivar walo ke jan se marva dunga" and said that you know that one of my relatives Col. Rajesh Kochar who is very good relation with police."
15. CW2 Imran Latif had deposed in his presummoning evidence that:
CR No.204246/2016 Alpna Oberoi v. Abdul Latif & Anr. Page No. 9 of 14 "On 12.08.2009, in the morning I alongwith my father were getting the construction work done at our house bearing no. E17, Nizamuddin West. At about 8:30/9:00 am neighbour Ranjan Oberoi with his one daughter (whose name I do not remember at present) alongwith two persons came to our house. They started abusing me and my father. They had come to the spot and started quarreling with us because in 2005, my father had purchased the abovesaid house and he started construction in the said property.
During the construction there was some seepage in the house of Ranjan Oberaoi. My father had told him that he well compensate the accused for the loss caused to his property due to seepage. Since then, accused is demanding money for the damage. /The damage caused to the property was worth Rs.1520,000/. However, the accused was demanding Rs.2/3.00 lakhs for the loss.
On the aforesaid date the accused alongwith other persons had come to the property and had threatened me and my family of dire CR No.204246/2016 Alpna Oberoi v. Abdul Latif & Anr. Page No. 10 of 14 consequences. Police was called at the spot. The accused was threatening taking name of one relative who is Colonel and they had threatened that they will get us implicated in cases and will not allow us to get the property constructed. Ranjan Oberoi and his family started quarreling and misbehaving with me and my family on petty issues as they are usually at home and have no other work to do. Mrs. Indu Oberoi wife of accused Ranjan Oberoi had filed false complaint against me and my father and younger brother at PS HND vide FIR No.320/09 u/s 323/341/509/34 IPC to extort money from us and to pressurize us to leave the property."
16. In so far as threat given by Colonel Rajesh Kochar is concerned, he has not been summoned by the learned Trial Court. In respect of incident mentioned in the testimony of CW1 regarding forcibly entering into the house of complainant, wrongful confinement and beating, same has not been relied upon by the learned Trial Court. Revisionist has been summoned only for the offence of criminal intimidation under Section 506/34 IPC. In respect of allegations of threatening by the revisionist regarding calling the police in case of work is not stopped, same does not fall in definition of criminal CR No.204246/2016 Alpna Oberoi v. Abdul Latif & Anr. Page No. 11 of 14 intimidation because revisionist is asking/threatening about taking legal recourse. In so far as allegations of other threats as mentioned in testimony of CW1 and CW2 are concerned, same cannot be said to have been made with an intent to cause alarm to the complainant and his family members. The threats as have been alleged by the complainant and his son in their respective presummoning evidence are empty threats without mens rea to cause injury and from that threats it cannot be said that threats were real and same have caused an alarm to the complainant and his family.
17. Further, CW1 who is complainant has alleged about the incident dated 11.08.2009, but CW2 who is the son of CW1, has stated nothing regarding the incident dated 11.08.2009 and he has stated incident only dated 12.08.2009. CW1 has nothing stated about the incident dated 12.08.2009 which has been alleged by his son (CW
2). Further, it is also stated by CW2 that during the construction, there was some seepage in the house of Ranjan Oberoi and his father told him that he will compensate the accused for the loss caused to his property due to seepage. He has further stated that since then, accused is demanding money for damage and the damage caused to the property was worth Rs.1520,000/, however, the accused was demanding Rs.2/3 lakhs for the loss. He has also accepted that Indu Oberoi wife of accused Ranjan Oberoi has filed complaint against him and his father and younger brother at Police Station Hazrat CR No.204246/2016 Alpna Oberoi v. Abdul Latif & Anr. Page No. 12 of 14 Nizimuddin vide FIR No.320/2009 under Section 323/341/509/34 IPC. CW1 has also stated that on 15.07.2009, Ranjan Oberoi called the police and made a false complaint and on the basis of said complaint, said FIR was registered.
18. It was held by Hon'ble Apex Court in Pepsi Foods Ltd. (supra) that: "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 of 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 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 CR No.204246/2016 Alpna Oberoi v. Abdul Latif & Anr. Page No. 13 of 14 summoning of the accused. The Magistrate has to carefully scrutinies 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".
19. In view of above discussion, I am of the view that offence under Section 506 read with Section 34 IPC is not made out and therefore, there was no sufficient ground for proceedings under Section 204 (1) of the Code for summoning the revisionist for the offence punishable under Section 506 read with Section 34 IPC. Hence, impugned order dated 15.01.2016 is set aside. Revision is allowed accordingly.
Announced in the open Court on 29.09.2018 (Sanjeev KumarII) Additional Session Judge05, South East, Saket Courts, New Delhi CR No.204246/2016 Alpna Oberoi v. Abdul Latif & Anr. Page No. 14 of 14