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Crl.M.C. 3192 & 3196 of 2013 Page 1 HIGH COURT OF DELHI
CRL.M.C. 3192/2013
B S AWANA & ORS. ..... Petitioners
Through: Mr. Pankaj Vivek & Mr. Atul Tripathi, Advocates
CRL.M.C. 3192/2013
B S AWANA & ORS. ..... Petitioners
Through: Mr. Pankaj Vivek & Mr. Atul Tripathi, Advocates
VERSUS
STATE GOVT. OF NCT OF DELHI & ORS. .....Respondents
Through: Mr. Pawan Sharma, Standing Counsel (Crl.) for respondent-State with Mr. Shahil Mongia, Advocate with SI Jaivir Singh
Through: Mr. Pawan Sharma, Standing Counsel (Crl.) for respondent-State with Mr. Shahil Mongia, Advocate with SI Jaivir Singh
CRL.M.C. 3196/2013
OM PRAKASH@ PRAKASH & ORS. ..... Petitioners
Through: Mr. Pankaj Vivek & Mr. Atul Tripathi, Advocates
OM PRAKASH@ PRAKASH & ORS. ..... Petitioners
Through: Mr. Pankaj Vivek & Mr. Atul Tripathi, Advocates
VERSUS
STATE GOVT. OF NCT OF DELHI & ANR. .....Respondents
Through: Mr. Pawan Sharma, Standing Counsel (Crl.) for respondent-State with Mr. Shahil Mongia, Advocate with SI Jaivir Singh
Through: Mr. Pawan Sharma, Standing Counsel (Crl.) for respondent-State with Mr. Shahil Mongia, Advocate with SI Jaivir Singh
CORAM:
HON'BLE MR. JUSTICE SUNIL GAUR O R D E R 07.08.2013
Crl.M.A. No.11890/2013 & 11900/2013(Exemption)
Allowed subject to all just exceptions.
2013:DHC:3947 Crl.M.C. 3192 & 3196 of 2013 Page 2
Crl.M.A. No.3192/2013 & Crl.M.A. No.11889/2013 (Stay)
Crl.M.C. No.3196/2013 & Crl.M.A. No.11899/2013 (Stay)
In the above captioned two petitions, quashing of criminal complaint No.34/1/2013 titled Jaipal Singh v. Sudha Nagar & Others under Sections 420/467/471/506(2)/448/452/379/380/34 and 120B of IPC
(Annexure-P-1) [in Crl.M.C.3192/2013] and another Criminal Complaint
No.12/1/2013 titled Jagat Singh v. Sh. Malook Nagar & Others under
Sections 200 of Cr.P.C read with Section 452/308/506/323/34 of IPC
(Annexure P-1) [in Crl.M.C. No.3192/2013] as well as orders of 28th June, 2012 (Annexure P-9) and 29th July, 2013 (Annexure P-11) is sought as vide which petitioner-Malook Nagar and his wife-Sudha Nagar have been directed by the trial court to appear in person for recording of their statements so that the dispute can be settled amicably.
At the hearing of the above captioned two petitions, identical arguments were addressed by petitioners' counsel and so, by this common order, these two petitions are being disposed of.
It was vehemently contended by petitioners' counsel that without taking cognizance of the criminal complaints in question and without summoning petitioners as accused, impugned order directing petitioners-
Malook Nagar and his wife-Sudha Nagar to appear before the trial court, is unheard of. Petitioners' counsel had relied upon Apex Court's decision in H.S. Bains, Director, Small Saving-cum-Deputy Secretary Finance, Punjab, Chandigarh v. State (Union Territory of Chandigarh) (1980) 4
SCC 631 to contend that the third alternative of holding an inquiry under
Section 202 of Cr.P.C. can be adopted only after cognizance of the
Crl.M.C. 3192 & 3196 of 2013 Page 3 complaint is taken and in the instant case, since cognizance of the complaints in question has not been taken, therefore, continuance of proceedings arising out the complaints in question is clearly an abuse of process of court.
On merits, quashing of the complaints in question is sought on the ground that it is counter-blast to the FIR No.90/2012 under Sections
447/379/506/34 of IPC, P.S. Fatehpur Beri, Delhi lodged by petitioner-
Sudha Nagar against respondent-complainant and the copy of the demarcation report of 6th March, 2013 (Annexure P-4) clearly shows that petitioners are in legal possession of the property in question and thus, ingredients of the offence alleged in the criminal complaints are not made out and so, aforesaid criminal complaints and proceedings arising out of them deserve to be quashed.
Upon hearing petitioners' counsel and on perusal of the criminal complaints in question, impugned order and the reply filed by the local police to respondent-complaints' application under Section 156 (3) of
Cr.P.C., I find that the offences purportedly committed by petitioners are cognizable one and at this initial stage, the contents of the criminal complaints in question cannot be pre-judged by relying upon the demarcation report as during the course of pre-charge evidence, petitioners would be well within their rights to cross-examine respondent- complainants and to confront them with demarcation report, which is being strongly relied upon by petitioners, and in the eventuality of trial court taking cognizance of the offences enumerated in the criminal complaints in question. Thus, in the considered opinion of this Court, no case for quashing of the criminal complaints in question is made out.
Crl.M.C. 3192 & 3196 of 2013 Page 4 Since status report on respondent-complainants' application under
Section 156 (3) of Cr.P.C. has been sought by the trial court and till date, final status report has not been filed before the trial court, as inquiry on the complaint in questions is said to be pending, therefore, trial court was not justified in directing petitioners-Malook Nagar and his wife-Sudha
Nagar to appear in person for recording of their statements by the trial court. Such an exercise, if at all is to be undertaken, it can be done by the local police, whose comprehensive status report is still awaited.
In light of the aforesaid, petitioners-Malook Nagar and his wife-
Sudha Nagar be not called by the trial court for recording of their statements and it should be left to the local police, who is conducting inquiry in the criminal complaints in question, to do so. Monitoring of the inquiry by the local police undertaken by the trial court vide its order of
28th June, 2013 is uncalled for. Local police is within its jurisdiction to do so and trial court without deciding pending application under Section 156
Crl.M.A. No.11890/2013 & 11900/2013(Exemption)
Allowed subject to all just exceptions.
2013:DHC:3947 Crl.M.C. 3192 & 3196 of 2013 Page 2
Crl.M.A. No.3192/2013 & Crl.M.A. No.11889/2013 (Stay)
Crl.M.C. No.3196/2013 & Crl.M.A. No.11899/2013 (Stay)
In the above captioned two petitions, quashing of criminal complaint No.34/1/2013 titled Jaipal Singh v. Sudha Nagar & Others under Sections 420/467/471/506(2)/448/452/379/380/34 and 120B of IPC
(Annexure-P-1) [in Crl.M.C.3192/2013] and another Criminal Complaint
No.12/1/2013 titled Jagat Singh v. Sh. Malook Nagar & Others under
Sections 200 of Cr.P.C read with Section 452/308/506/323/34 of IPC
(Annexure P-1) [in Crl.M.C. No.3192/2013] as well as orders of 28th June, 2012 (Annexure P-9) and 29th July, 2013 (Annexure P-11) is sought as vide which petitioner-Malook Nagar and his wife-Sudha Nagar have been directed by the trial court to appear in person for recording of their statements so that the dispute can be settled amicably.
At the hearing of the above captioned two petitions, identical arguments were addressed by petitioners' counsel and so, by this common order, these two petitions are being disposed of.
It was vehemently contended by petitioners' counsel that without taking cognizance of the criminal complaints in question and without summoning petitioners as accused, impugned order directing petitioners-
Malook Nagar and his wife-Sudha Nagar to appear before the trial court, is unheard of. Petitioners' counsel had relied upon Apex Court's decision in H.S. Bains, Director, Small Saving-cum-Deputy Secretary Finance, Punjab, Chandigarh v. State (Union Territory of Chandigarh) (1980) 4
SCC 631 to contend that the third alternative of holding an inquiry under
Section 202 of Cr.P.C. can be adopted only after cognizance of the
Crl.M.C. 3192 & 3196 of 2013 Page 3 complaint is taken and in the instant case, since cognizance of the complaints in question has not been taken, therefore, continuance of proceedings arising out the complaints in question is clearly an abuse of process of court.
On merits, quashing of the complaints in question is sought on the ground that it is counter-blast to the FIR No.90/2012 under Sections
447/379/506/34 of IPC, P.S. Fatehpur Beri, Delhi lodged by petitioner-
Sudha Nagar against respondent-complainant and the copy of the demarcation report of 6th March, 2013 (Annexure P-4) clearly shows that petitioners are in legal possession of the property in question and thus, ingredients of the offence alleged in the criminal complaints are not made out and so, aforesaid criminal complaints and proceedings arising out of them deserve to be quashed.
Upon hearing petitioners' counsel and on perusal of the criminal complaints in question, impugned order and the reply filed by the local police to respondent-complaints' application under Section 156 (3) of
Cr.P.C., I find that the offences purportedly committed by petitioners are cognizable one and at this initial stage, the contents of the criminal complaints in question cannot be pre-judged by relying upon the demarcation report as during the course of pre-charge evidence, petitioners would be well within their rights to cross-examine respondent- complainants and to confront them with demarcation report, which is being strongly relied upon by petitioners, and in the eventuality of trial court taking cognizance of the offences enumerated in the criminal complaints in question. Thus, in the considered opinion of this Court, no case for quashing of the criminal complaints in question is made out.
Crl.M.C. 3192 & 3196 of 2013 Page 4 Since status report on respondent-complainants' application under
Section 156 (3) of Cr.P.C. has been sought by the trial court and till date, final status report has not been filed before the trial court, as inquiry on the complaint in questions is said to be pending, therefore, trial court was not justified in directing petitioners-Malook Nagar and his wife-Sudha
Nagar to appear in person for recording of their statements by the trial court. Such an exercise, if at all is to be undertaken, it can be done by the local police, whose comprehensive status report is still awaited.
In light of the aforesaid, petitioners-Malook Nagar and his wife-
Sudha Nagar be not called by the trial court for recording of their statements and it should be left to the local police, who is conducting inquiry in the criminal complaints in question, to do so. Monitoring of the inquiry by the local police undertaken by the trial court vide its order of
28th June, 2013 is uncalled for. Local police is within its jurisdiction to do so and trial court without deciding pending application under Section 156
JUDGMENT
(3) of Cr.P.C. is precluded from adopting the course of action sought to be undertaken in terms of order of 28th June, 2013 and 29th July, 2013. Needless to say, inquiry of respondent-complainants' application under Section 156 (3) of Cr.P.C. by the local police is to be broad based and not a detailed one and the local police ought to submit the comprehensive status report on priority basis, so that the trial court is in position to decide the pending application under Section 156 (3) of Cr.P.C. While refraining to quash the criminal complaints in question with liberty to petitioners to confront the complainant party with the demarcation report during the pre-charge evidence in case trial court chooses to take cognizance and proceed with the complaints in question, Crl.M.C. 3192 & 3196 of 2013 Page 5 these two petitions and the applications are disposed of while not commenting on the merits lest it may prejudice petitioners at trial. In the event of trial court deciding pending application under Section 156 (3) of Cr.P.C., either side would be at liberty to avail of the remedies available in law. These two petitions and the applications are accordingly disposed of. (SUNIL GAUR) Judge AUGUST 07, 2013 s