Shashi Bhandari & Another vs State & Another
1999 Latest Caselaw 1222 Del

ORDER

K.S. Gupta, J.

1. In this petition under Section 482 Cr. P.C. both the petitioners who are accused, seek the quashing of complaint case No. 187/93 filed under Sections 323/504/506/341/334 IPC pending before a Metropolitan Magistrate.

2. Said complaint case was filed on 3rd November 1993 by Adrash Alreja, respondent No. 2, inter alia, alleging that he is the Managing Director and principal officer of M/s. EDP Aids Pvt. Ltd., a tenant in respect of second floor of property No.B-32, Lajpat Nagar-II, New Delhi. This property was owned by S.N. Mehra who sold it to Smt. Shashi Bhandari, petitioner No. 1 and after purchase the company became tenant under her with effect from 1st June 1989 and had been paying rent to her regularly. I.D. Dubey, tenant, in the ground floor of the said property suddenly vacated it on the night intervening 22nd/23rd October, 1993 without the knowledge of any of the neighbours. To the best of knowledge of respondent No. 2 the petitioners used illegal means for getting the said portion vacated by him. Immediately after petitioner No. 1 purchased the property, the petitioners had been persistently pressing respondent No. 2 to vacate the tenanted portion. It is alleged that on 23rd October, 1993 door on the ground floor leading to the tenanted portion was got locked four times in between 9.30 AM to 12.30 PM by the petitioners thereby causing interference in the free access of the directors, staff members and customers etc. of the company. At about 2.35 PM on the same day respondent No. 2 received a telephone call from one Sh. Sandhu who claimed to have purchased the said property from petitioner No. 1 and he threatened him to vacate the tenanted portion else he would face dire consequences. It had been revealed that petitioner No.1 continues to be the owner of the said property and she had engaged said Sh. Sandhu to get the tenanted portion vacated by threats of violence. Respondent No. 2 was thus compelled to file a suit for permanent injunction against the petitioners and the counsel appearing for petitioners in the suit made a statement before the Sub Judge that petitioner No. 1 will not dispossess respondent No. 2 from the tenanted portion by unlawful means. In view of this statement respondent No. 2 got the suit dismissed as withdrawn.

3. It is further alleged that on 1st November, 1993 at about 6 PM when the respondent No. 2/complainant was sitting in the office and having discussion with some of the staff members both the petitioners suddenly came there. Sekhar Bhandari, petitioner No. 2 caught hold of him and start- ed giving blows on his head and face etc. Petitioner No.1 joined petitioner No. 2 in giving first blows to him. Both of them used strong abusive lan- guage and warned him to vacate the tenanted portion within a week else be ready to face dire consequences. Immediately thereafter a report was lodged with the police but no action was taken by them. After recording statements of respondent No. 2 as CW-1, Pramod Mohan Sahai, CW-2, Ravindran K.,CW-3 under Section 200 Cr.P.C. the petitioners were summoned by the Magistrate by the order dated 7th June, 1994 for the offences under sections 323/504/506/341/34 IPC. Application for recalling the summoning order filed by the petitioner was declined by the order dated 30th January 1997 by the Magistrate.

4. Submission advanced by Sh. Chetan Sharma appearing for the petitioners was that out of vengeance criminal complaint case No. 187/93 had been filed by respondent No. 2 as the petitioners had sought the eviction of respond- ent No. 2 from the tenanted portion by filing an eviction petition. He invited my attention to the order dated 13th May, 1999 made in this peti- tion by S.N. Kapoor J. regarding non-payment of misuse charges by respond- ent No. 2. As part of this submission it was further argued by him that CWs 2 and 3 are the employees of respondent No. 2 and respondent No. 2 with a view to create evidence against the petitioners got himself treated for the injuries allegedly sustained in the occurrence in question from a private doctor instead of going to any of the government hospitals and also that respondent No. 2 did not cooperate with the police in conducting investiga- tion ordered by the Magistrate as is evident from the police report dated 18th March, 1994. In support of the relief claimed strong reliance was placed mainly on the decisions in M/s. Pepsi Foods Ltd. and another Vs. Special Judicial Magistrate and others, 1998 SC 128; Ashok Chaturvedi & Others Vs. Shitul H. Chanchani & Another, and Municipal Corporation of Delhi Vs. Ram Kishan Rohtagi & Others, . While reputing the said submission it was pointed out by Ms. Rebecca John for respondent No. 2 that the eviction petition against respondent No. 2 was filed in 1996 and the police report dated 16th May, 1994 was taken note of by the M.M. while making the summoning order dated 7th June, 1994.

5. Paras 8, 9 and 10 in Ram Kishan Rohtagi's case (supra) which are relevant for deciding the controversy on hand, read thus :-

"Another important consideration which is to be kept in mind is as to when the High Court acting under the provisions of Sec. 482 should exercise the inherent power in so far as quashing of criminal proceedings are concerned. This matter was gone into in greater detail in Smt. Nagawwa Vs. Veeranna Shivalingappa Konjal- gi, where the scope of sections 202 and 204 of the present Code was considered and while laying down the guide- lines and the grounds on which proceedings could be quashed this court observed as follows (para 5):

"Thus it may be safely held that in the following cases an order of the Magistrate issuing process against the accused can be quashed or set aside:

(1) Where the allegations made in the complaint or the statements of the witnesses recorded in support of the same taken at their face value make out absolutely no case against the accused or the complaint does not disclose the essential ingredients of an offence which is alleged against the accused;

(2) Where the allegations made in the complaint are patently absurd and inherently improbable so that no prudent person can ever reach a conclusion that there is sufficient ground for proceeding against the accused;

(3) Where the discretion exercised by the Magistrate in issuing process is capricious and arbitrary having been based either on no evidence or on materials which are wholly irrelevant or inad- missible; and

(4) Where the complaint suffers from fundamental legal defects, such as, want of sanction, or absence of a complaint by legally competent authority and the like. The cases mentioned by us are purely illustrative and provide sufficient guidelines to indicate contingencies where the High Court can quash proceedings."

9. Same view was taken in a later decision of this Court in Sharda Prasad Sinha Vs. State of Bihar, where Bhagwati, J., speaking for the Court observed as follows (para 2):

"It is, now settled law that where the allegations set out in the complaint or the charge-sheet do not constitute any offence, it is competent to the High Court exercising its inherent jurisdic- tion under Section 482 of the Code of Criminal Procedure to quash the order passed by the Magistrate taking cognizance of the offence."

10. It is, therefore, manifestly clear that proceedings against an accused in the initial stages can be quashed only if on the face of the complaint or the papers accompanying the same, no offence is constituted. In other words, the test is that taking the allegations and the complaint as they are, without adding or subtracting anything, if no offence is made out then the High Court will be justified in quashing the proceedings in exercise of its powers under Section 482 of the present Code."

6. In para No. 15 of the said decision it was held :-

"So far as the Manager is concerned, we are satisfied that from the very nature of his duties it can be safely inferred that he would undoubtedly be vicariously liable for the offence; vicarious liability being an incident of an offence under the Act. So far as the Directors are concerned, there is not even a whisper nor a shred of evidence nor anything to show, apart from the presumption drawn by the complaint, that there is any act commit- ted by the Directors from which a reasonable inference can be drawn that they could also be vicariously liable. In these cir- cumstances, therefore, we find ourselves in complete agreement with the argument of the High Court that no case against the Directors (accused Nos. 4 to 7) has been made out ex facie on the allegations made in the complaint and the proceedings against them were rightly quashed."

7. In M/s. Pepsi Foods' case (supra) while quashing the complaint and the proceedings against appellants towards the middle in Para 29 of the report (Page 136) it was held by the Apex Court:-

"The allegations in the complaint merely show that the appellants have given the brand name to "Residency Foods and Beverages Ltd", for bottling the beverage "Lehar Pepsi". The complaint does not show what is the role of the appellants in the manufacture of the beverage which is said to be adulterated. The only allegation is that the appellants are the manufacturer of bottle. There is no averment as to how the complaint could say so and also if the appellant manufactured the alleged bottle or its contents. His sole information is from A.K. Jain who is imp leaded as accused No. 3. The preliminary evidence on which the 1st respondent relied in issuing summon to the appellants also does not show as to how it could be said that the appellants are manufacturers of either the bottle or the beverage or both."

8. In Ashok Chaturvedi's case the order of the Magistrate taking cognizance against the appellant was quashed by the Supreme Court observing :-

"We have examined the allegations made in the complaint petition and the statement of the complainant and the two other witnesses made on oath before the Magistrate. We are clearly of the opinion that the necessary ingredients of any of the offences have not been made out so far as the appellants are concerned. The peti- tion of complaint is a vague one and excepting the bald allega- tion that the shares of the complainant have been transferred on forged signatures, nothing further has been stated and there is not an iota of material to indicate how all or any of these appellants are involved in the so-called allegation of forgery. The statement of the complainant an oath as well as the witnesses do not improve the position in any manner, and, therefore, in our considered opinion, even if the allegations made in the complaint petition and the statement of the complainant and his witnesses are taken on their face value, the offence under sections 406, 420, 467, 468 and 120-B of the Indian Penal Code cannot be said to have been made out. This being the position, the impugned order of the Magistrate taking cognizance of the offence dated 5.2.96 so far as it relates to the appellants cannot be sustained and the High Court also committed error in not invoking its power under section 482 of the Code."

9. Adverting to the facts of this case, it may be noticed that there are specific allegations made particularly in Para No. 6 of the complaint that on 1st November 1993 around 6 PM both the petitioners entered into the tenanted portion, gave beating to respondent No. 2 and held out threat that if he did not vacate the premises within seven days he will have to face dire consequences. These allegations are substantiated by the statements on oath of respondent No. 2 (CW-1), Pramod Mohan Sahai (CW-2) and Ravindran K.(CW-3) and also the police report dated 16th May 1994. Obviously, the present case is not covered by any of the parameters set out in Smt. Nagawwa's case (supra) referred to in Para No. 9 in Ram Kishan Rohtagi's case (supra) nor do any of the said three decisions in Pepsi Foods Ltd., Ashok Chaturvedi & Ors and Ram Kishan Rohtagi (supra) apply to the facts of this case. That being so, the petition deserves to be dismissed being without merit.

10. Accordingly, the petition is dismissed. Trial court record be sent back immediately.

11. Petitioners are directed to appear before the said court on 23rd December, 1999.