Savitri Devi And Ors. vs Kailash Chopra And Anr.
1987 Latest Caselaw 176 Del

JUDGMENT

M.K. Chawla, J.

(1) Smt. Savitri Devi and her three sons are not satisfied with the order dated 1-7-1983 passed by Shri J.K. Pali, Metropolitan Magistrate, New Delhi, by which they Along with their wives were summoned to face charge for the offences under Sections 147/452/323/149 Indian Penal Code . In order to understand the scope of attack, it is relevant to keep in mind few salient features of the complaint and the preliminary evidence recorded therein.

(2) Smt. Kailash Chopra, complainant is the wife of Jatinder Pal Chopra. He is the son of Smt. Savitri Devi and brother of Manmohan, Jagdish and Dalip. Yash Pal Duggal is his brother-in-law. Who is married to Smt. Swam Lata, their sister. On 22-4-83, Smt. Kailash Chopra lodged a complaint in the court of Shri J.K. Pali, Metropolitan Magistrate, New Delhi, on the allegations that she aloag with her husband and other members of the family has been living in house no. D-1/206, Lajpat Nagar, New Delhi. Her husband and one of his brothers Shri Surinder Kumar Chopra are the owners in possession of this house. In the year 1950, a hutment measuring 200 sq. yds. at Lajpat Nagar was allotted by the Ministry of Rehabilitation, New Delhi, to the family of the complainant's husband, in the name of his mother being head of the family, although she was not an earning member. The family members constructed two separate portions bearing no. D-1/205 and D-1/206 on this plot. The complainant, her husband and Surinder Kumar Chopra Along with the mother started living in house no. D-1/206. Sometime later, Smt. Savitri Devi, without the consent and knowledge of the complainant and her husband, entered into an agreement to sell this property to a third party. Immediately after coming to know of this plan. Shri Jatinder Pal Chopra filed a civil suit and succeeded in obtaining an injunction order restraining his mother from proceeding further in the matter. However, in order to resolve the family dispute, a family arrangement was entered into, as a result of which Smt. Savitri Devi transferred her share in house no. D-1/206 in favor of Jatinder Pal Chopra and his brother Surinder Kumar Chopra by means of a registered deed.

(3) It is the case of the complainant that this family arrangement annoyed the accused persons who wanted to grab the entire property. They even instigated Smt. Savitri Devi to cancel the deed of transfer of the property. Narrating the incident, the complainant averred that on 12-2-1982 at about 5 P.M. while she was sitting in a room under their occupation, accused Yash Pal, his wife Smt. Swam Lata, Manmohan, his wife Smt. Kanta, Jagdish, his wife Smt. Renu, Dalip, his wife Smt. Kamlesh and Savitri Devi entered the said room, shouting that they would kill the complainant and all the members of her family if her husband and his brother did not sign an agreement to cancel the transfer of the house in their favor. All the accused then started giving slaps and fist blows, as a result of which she sustained bodily pain and injuries all over her body. She raised an alarm and on hearing the noise, her husband, Shri Chaman Lal Narula and Shri Brij Mohan Sethi came to her rescue. Her husband immediately rang up the control room and also sent an information to Police Station Lajpat Nagar, which was recorded vide Dd No. 15A dated 12-2-82. The local police arrived at the spot but no action was taken against any of the accused under the pretext that it was a family dispute. The complainant impressed upon the local police but they did not move in the matter nor got her medically examined. The complainant, however, was given first-aid by Dr. Y.K. Tripathi on the same day and was further treated by Dr. B.R. Bhattacharya. The complainant further alleged that in spite of her repeated attempts and requests, the local police did not take any action. Left with no other alternative, she filed the present complaint praying for the summoning of the accused, their trial and to punish them according to law. Along with this complaint, she also filed the list of witnesses and the relevant documents.

(4) In support of the complaint, Smt. Kailash Chopra appeared as her own witness and also produced her husband and Shri Chaman Lal Narula, and in her statement, she proved the medical certificates issued by Dr. Y. K. Tripathi and the treatment slip of Dr. B.R. Bhattacharya. The learned lower court as stated earlier found the contents of the complaint as seemingly correct and corroborated by the oral as well as documentary evidence placed on the record.

(5) The contention of the learned counsel for the petitioner is that none of the accused persons who have the right to be in the house being co-owners, can be summoned for an offence of trespass. Further more, Smt. Savitri Devi was allowed to occupy and remain in house no. D-1/206 and she being the old lady of 70 years was not in a condition to give beating to the complainant and her false implication in these circumstances cannot be ruled out. it is also the case of the petitioners that the present complaint has been instituted with mala fide intention to frustrate the pending litigation and to forestall the complaint of Smt. Savitri Devi which is pending consideration in the court below.

(6) The learned counsel for the respondent has raised the preliminary objections to the maintainability of the revision petition in as much as the order under challenge is an interlocutory order. On merits, he has taken me through the oral as well as the documentary evidence to show that the learned lower court has considered the complaint from all angles and has given valid reasons for the summoning of the accused persons which order does not call for any interference.

(7) To start with. I do not propose to go into the question as to whether the impugned order is final or an interlocutory one against which the present revision is maintainable or not, as, in my opinion, the petitioner has not been able to make out any case for the interference in the impugned order The complainant has given a valid explanation of instituting the complaint after a lapse of about one year of the incident as in spite of her repeated attempts and approach to the police authorities, the local police did not move in the matter. It is not disputed that Smt. Kailash Chopra lodged the D D Report No. 15-A on 12.2.82 immediately after the accused persons attacked her and caused injuries on her person. Once they have reported the matter promptly, it was the duty of the local police to initiate some action against the accused persons but for the reasons best known to them, they were neither summoned nor any case was registered against them. The present complaint under these circumstances cannot be said to be a counterblast to the already pending complaint of Smt. Savitri Devi, The contents of the complaint have been fairly supported by the complainant as well as her husband and Shri Chaman Lal Narula, who happened to be present there at the time of the incident. Both these witnesses gave in minute details the part played by each of the accused persons in causing bodily injuries to the complainant It is not a case where any of the accused persons was actually residing or in occupation of any portion of the house D-1/206. All along this very house has been in occupation of the complainant, her husband and his brother Shri Surinder Kumar Chopra. They also claim its ownership. Even though for the sake of arguments, it may be presumed that there is some dispute about its ownership but that will not entitle any of the accused persons to make forcible entry in the house and without any rhyme or reason assault the complainant. If they had any right in the property, the best course for them was to resort to a legal remedy. The learned lower court has viewed the incident from all angles and has given good reasons to arrive at the conclusion that it is a fit case for the summoning of the accused for the offences mentioned in the complaint. The learned lower court has not raveled beyond the evidence and his finding cannot be said to be perverse The order of summoning was the subject-matter of Special Leave Petition in case Khacheru Singh v. State of U.P. and another, Air 1982 S.C. 784 (2) The judgment of the Supreme Court on this aspect is contained in only paragraph which is reproduced below : "HEARD.Special leave granted. We do nut see any justification though we not expressing any opinion on the merits of the case, for the order passed by the learned Additional Sessions Judge, Meerut in Criminal Revision No. 83 of 1979, which was affirmed the High Court of Allahabad by its order dated 7.5.80. All that the learned Magistrate had done was to issue a summons to respondent no. 2 Satyavir Singh. If eventually, the learned Magistrate comes to the conclusion that no offence was made out against Satyavir Singh it will be open to him to discharge or acquit him, as the case may be. But it is difficult to appreciate why the order issuing "summon" to the accused should be quashed. We, therefore set aside the orders passed by the Sessions Court and High Court, restore that of the learned Special Judicial Magistrate, First Class, Meerut, dated February 2, 1979 and remit the matter to the trial Court for disposal in accordance with law."

(8) On the basis of the above said observations of the Supreme Court, I do not find any scope of interference in the impugned order.

(9) Learned counsel for the petitioner, however, has one point to urge which prima facie appears to be of some substance. His submission is that by virtue of the order of this Court in Suit No. 277/82. Smt. Savitri Devi vs. Jatinder Pal Chopra, she was allowed to remain in a portion of the house D-1/206. In that situation, even if the facts of the complaint are taken on its face value, she cannot be said to have committed an offence of trespass in her own house. Learned counsel also submits that Smt. Savitri Devi is more than 70 years of age and was not in a position to cause any bodily injury on the person of the complainant, it is a fit case in which at least Smt. Savitri Devi be absolved of the commission of any offence. Learned counsel for the respondents has fairly conceded this proposition and has no objection if the name of Smt. Savitri Devi, their mother is removed from the array of the accused persons. In view of the concession of the learned counsel for the complainant, I hereby order that the name of Smt. Savitri Devi be removed from the array of the accused persons. The complaint shall proceed against the remaining accused persons. With this modification, the revision petition is dismissed.