Ravi Kumar Nigam vs State
1993 Latest Caselaw 444 Del

JUDGMENT

Anil Dev Singh, J.

(1) These are two applications under Section 438 Cr. P.C. for anticipatory bail moved by the petitioners, who are. inter alia,alleged to have trespassed into a portion of property No. 17, Darya Ganj,New Delhi and against whom First Information Report has been registered under Sections 420/468/471/448 IPC.

(2) The allegations, relevant for the disposal of the petitions, briefly stated are an under :

(3) The Baptist Union of North India (for short 'BUNI') which is affiliated to the Baptist Church Trust Association, Calcutta (for short'BCTA'), was founded in the year 1947 and has been managing and administering the properties of the latter in North India. Property No. 17, DaryaGanj is one of the properties said to be belonging to 'BCTA.. On 6/12/1976 Buni headed by Dr. David Walter was registered with the Registrar of Societies under the Societies Registration Act. 1860. On 3/01/1991another body, namely, the original Baptist Union of North India (for short'OBUNI') beaded by Shri S. Prasad was registered as a society by the Registrar of Societies under the Societies Registration Act, 1860. On 1/01/1991 two separate rent deeds in respect of a flat and open space on the ground floor of 17. Darya Ganj, New Delhi were executed in favor of each one of the petitioners by Shri S. Prasad and Shri P.N. Prem, representing themselves as President and Secretary respectively of BUNI. These rent agreements are alleged to have been forged and fabricated by the petitioners in connivance with Shri S. Prasad and other office bearers of OBUNI. A perusal of the copies of the deeds reveal that each of the petitioners was to hold his portion of the demised property for a period of five years from the1st day of January. 1991 @ rental of Rs. 500.00. Both the rent agreements contain identical terms and recite that "BUNI" is an affiliated body ofBCTA, a body incorporated under the Indian Companies Act with its registered office at Calcutta. The deeds also state that Bcta is the owner of the said property.

(4) It is also alleged that rent receipts in respect of the rent received from the petitioners were executed by Shri S. Prasad in the name of BUNI even though he had nothing to do with the said organisation. The further case is that on 20/03/1993 the petitioners posing as tenants, with the convinance of Shri S. Prasad and others trespassed on the property in question. According to the petitioners earlier possession of the said property was with Shri Sathaibalan, treasurer of Discipleship Centre and oneS. Bahadur. The petitioners rely on the affidavits of Shri Sathaibalan and Shri S. Prasad to show that possession of the premises in question was given to Shri S. Prasad and then Shri Prasad in turn handed over the possession to the petitioners.

(5) After the petitioners allegedly trespassed on the property in question a report was lodged by Dr. David Walter with P.S. Daryaganj,pursuant to which Fir was registered by the police on 24/03/1993 under Sections 420, 468, 471/480 and 481 IPC. At this stage it may be advantageous to extract a portion of the Fir lodged by Dr. David Walter on 20/03/1993 against Ravi Kumar, petitioner. "THE aforesaid illegal action of the part of the above person i.e. Sh.Ravi Kumar Nigam and Satyaibalan is patently illegal and without any authority and amounts to mischief and substantial loss to thecomplainant. It is further learnt that the said Sbri Ravi Kumar Nigam belongs to land grabing mafia who is very active in Delhi ingrabing the Government and other religious and Charitable properties. The said person is nefariously daring to grab the other part of the aforesaid property of the Buni at 16, Daryaganj, Delhi and has been personally claiming and openly threatening. The above person has threatened and has created a lot of commotion and fear in the mind of the Christian Community which has been largely affected by the aforesaid person and BUNl being law abiding society and having no other way to approach any other authority,we humble place the above said facts for your perusal which may kindly be taken on the record and prompt and proper legal action may kindly be taken against the above said culprits".

(6) Learned Counsel appearing for the petitioners submits that no case whatsoever is made out against the petitioners as their entry into the building is lawful, being the tenants of the premises in question under valid rent agreements.

(7) With regard to the question as to why the rent agreements executed in favor of the petitioners were signed by Shri S. Prasad and ShriP.N. Prem as President and Secretary of BUNl, it is submitted that actually the business of Obuni was being carried out in the name of BUNl as the organisation headed by Shri S. Prasad was the actual BUNl. The same is the explanation for the rent receipts which were executed by Shri Prasad in regard to the premises which has been allegedly taken on rent by the petitioners. It is further contended that there is a dispute with regard to the question whether Shri S. Prasad or Dr. Walter David is the President ofBUNl. Learned Counsel urges that the dispute between the parties is purely of a civil nature.

(8) On the other hand, learned Counsel for the State submits that the petitioners have trespassed on the property in question with the object to grab the same. He points out that the property which was originally fetching about Rs. 2000.00 as rent is now being allegedly given on rent of Rs. 1000.00per month to the petitioners. Learned Counsel also points out that the property is situated in a prime location in Daryaganj and is of immensevalue. It is the submission of the learned Counsel for the State that the property could not have been let out to the petitioners on 1/01/1991 as Shri Sathaibalan, Treasurer of Discipleship Centre was in possession of the said property and was paying rent till 16/03/1993 to the said centre,which in turn was a tenant of Buni headed by Dr. David Walter. As as equitor he points out that the entire transaction between the petitioners, Shri Sathiabalan and Shri S. Prasad and others is a fabricated one, meant to deprive Buni headed by Dr. David Walter and Discipleship Centre of the property in question. He contends that Shri S. Prasad is not the President of BUNI and on his own showing he is the President of Obuni, an organisation which is different from BUNI.

(9) At this stage it will not be appropriate to make a detailed and meticulous examination of the evidence and elaborate exploration of the merits of the case as it may prejudice the case of either of the parties.However, two or three facts/questions, which arise from the material placed on record, especially the affidavits of Shri Sathaibalan and Shri S. Prasad filed in support of the case of the petitioners and the alleged agreements dated 1/01/1991, need to be mentioned :

1.It is surprising that the lease deed in favor of the petitioners was executed on 1/01/1991, when Obuni headed by Shri Prasad was registered only on January i, 1991.2. From the affidavit of Shri Sathaibalan dated 20/07/1993 placed on record by the petitioners, it appears, that he was in possession of the part of the property till 20/03/1993. Receipts produced by Discipleship Centre show that he was paying rent for the property to the Centre till February, 1993. The payment for the month of February, 1993 was made on 16/03/1993to the Discipleship Centre, from whom he had allegedly taken the premises on rent as a sub-tenant. If that was so, how any tenancy could be created in favor of the petitioners in January1991 when Sathaibalan was still holding the possession of the property and paying rent to the Discipleship Centre. In his affidavit he also states that some portion of the premises was handed over by him to Shri S.Prasad and Paul N. Prem on 31/12/1990. If that was correct why was he paying the entire rent, without any corresponding deduction on that acount, to the Discipleship Centre. Again how could the said rent agreement of 1/01/1991 create tenancy with effect from that date, when admittedly Sathaibalan was still in possession of a major portion of the premises. Shri S. Prasad,in his affidavit dated 20/07/1993, asserts that part possession was delivered to the petitioners on 1/01/1991 but the agreements do not say so.

(10) The alleged rent agreements dated 1/01/1991 categorically declare that the landlord leases to the tenants property in question and to hold the same as tenants for a term of five years from 1/01/1991. The agreements clearly postulate that the petitioners will hold the property w.e.f. 1/01/1991. In other words according to the agreements possession was delivered to the petitioners on 1/01/1991. The agreements nowhere suggest that only part possession and not full possession was given to the petitioners on that date. The position taken by Shri Sathaibalan and ShriS. Prasad in the affidavits appear to be not to be inconformity with the agreements dated 1/01/1991. It is significant to note that according to the documents filed by the Discipleship Centre payments of rent from time to time were being made by Sathaibalan to Discipleship Centre through Banks.Last payment made on 16/03/1993 was through a cheque. In the affidavit of Shri S. Prasad dated 20/07/1993 filed in response to the intervention application of Discipleship Centre, it is stated that Discipleship Centre has no concern with the property in dispute, and Buni did not induct Discipleship Centre as tenant of the property. The affidavit further states that since the property in question belongs to the Buni (Original)headed by Shri S. Prasad, the previous tenants, Shri Sathaibalan and ShriS. Bahadur rightly handed over possession to its real owners. If this was theposition, then why Sathaibalan and S. Bahadur were paying rent to the Discipleship Centre. (3)Next question relates to the information given by Bcta, owner of the property in question to the query of the Investigation Officer, Bcta by means of its certificate dated 8/04/1993 has certified that it recognises BUNI as the only lawful successor of the Baptist Union of North India formed in 1947 and is a constituent body of BCI'A. The certificate further recites that Bcta does not recognise any other baptist Union of North India.If this is so how could Shri S. Prasad, President of Obuni create a tenancy in favor of the petitioners.

(11) Learned Counsel for the petitioners submits that entry of the petitioners into the premises was innocent and was on the basis of the agreements dated 1/01/1991. Keeping in view the above 'discussion, at thisstage, it will be sufficient to point out that in a given case taking of the possession of a property to begin with may be innocent but after coming to know that the entry was not proper, if the party still continues in possession and does not withdraw from the property it will indicate an intention which may be actionable under Section 448 read with Section 445 of the IPC.

(12) I am not impressed by the submission of the learned Counsel for the petitioners that the matter between the parties is essentially of a civilnature. The allegations of fabrication and forging of documents to grab the church property are of a serious nature. Investigation is still going on and must be allowed to proceed unhampered in accordance with law.

(13) The learned Counsel for the petitioners also submits that Section 448 Indian Penal Code will not be attracted in the instant case as no insult, injury or annoyance has been caused to any person in possession of the property. According to him, neither Discipleship Centre nor Buni headed by Dr. David Walter were in possession of the property at the time when petitioners acquired possession of the same. I am not inclined to accept the plea of the learned Counsel for the petitioners are being premature as at this stage investigations are still in progress. In this regard, however, the submission of the learned Counsel for the respondent needs to be noticed. He submits that as Shri Sathiabalan ceased to be the tenant, the possession automatically reverted back to Discipleship Centre as the former was a sub-tenant of the latter and annoyance and injury has been caused to it as also to Buni for the alleged trespass over the property by the petitioners.

(14) Prima facie there appears to be no equity in favor of the petitioners, for exercise of discretion under Section 438 Cr. P.C.

(15) In view of the above discussion, I find no merit in the applications and the same are dismissed.

(16) Any observation made hereinabove will not be considered as an expression of opinion on the merits of the case.