Kirpal Singh & Anr vs Wazir Singh & Others
2000 Latest Caselaw 1272 Del

ORDER

Dalveer Bhandari,J.

1. These two Criminal Revision Petitions have been preferred against the order passed by the learned Additional Sessions Judge in Crl.Appeal No.54/98 and Crl.Appeal No.52/98. By his order the learned Additional Sessions Judge has upheld the order passed by the learned Metropolitan Magistrate under Section 448 IPC. Accused Kripal Singh was also sentenced under Section 408 IPC. The Court directed the accused to restore the possession of the shop to the complainant, Wazir singh and released the accused on probation for one year with an undertaking to hand over vacant possession of the shop to the complainant within a month.

2. The complainant,Wazir Singh is aggrieved by the order of the learned Additional Sessions Judge because while convicting the accused, the Court released both the accused on probation.

3. The accused persons also have filed a revision petition against the conviction. I propose to decide both the revision petitions by this common judgment.

Brief undisputed facts which are necessary to decide these revision petitions are recapitulated as under:-

4. The complainant, Wazir Singh, was allotted Shop No.30 in Gokhale Market, Tis Hazari, Delhi by the Ministry of Rehabilitation as a displaced person from Pakistan in 1953. Later on the conveyance deed was executed in his favor by the Ministry of Rehabilitation on 29.5.1953. The complainant Wazir Singh carried on the business in the name and style of M/s Sardar Trading Company in the said shop. It is stated that in March 1961 the complainant started another business of mechanical and electrical works in the name and style of Sardar Electrical and Mechanical Works. For the purpose of running the said business, the complainant engaged Katha Singh and Kirpal Singh as his servants on 10.3.1961 at Rs. 120/- and Rs. 100/- per month as their monthly salary respectively. Both the accused persons had executed separate agreements/contracts of service. However, the accused Katha Singh was dismissed on 21.10.1963 due to his insubordination and misdemeanour. In his place one Ratan Lal was engaged as an employee who too executed contract of service. Ratan Lal absconded during the trial. The accused persons were provided and entrusted with necessary tools of different types valued at Rs.200/-. They were also entrusted with local motor parts such as threaded pins, shakle assembly, starting nuts, springs and parts of goods etc. valuing at Rs. 1000/-. One old BSA bicycle, three wooden racks fitted with wood, chair, wooden table and a bench valued at Rs. 330/- were also lying at the shop.

5. The complainant Wazir Singh used to supervise the work of accused Kirpal Singh and the absconder Ratan Lal. The complainant had two daughters who were employed in Madhya Pradesh and therefore, he used to visit them occasionally leaving the work to be attended by both these workmen (who were employed as his servants) with necessary tools etc.

6. In June 1963 the complainant Wazir Singh visited his daughters at Madhya Pradesh leaving the work and the tools in the care and custody of Kirpal Singh and Ratan Lal. The complainant returned from Madhya Pradesh on 22/23.6.1963 and went to the shop on 24.6.1963. He found that the accused Kirpal Singh and Ratan Lal were working there. He made necessary enquiries about the work done in his absence but they gave evasive replies while adopting terse and indifferent attitude leading the complainant to suspect their bonafides. He checked the articles entrusted to both these persons and found his bicycle and local motor parts missing for which no satisfactory reply was given. He also noticed electrical fittings which previously were not there. In the presence of some other local persons he made enquiries, but both these persons insulted the complainant and threatened to break his bones and shouted that he (complainant) had no connection with the said shop. They also threatened to kill him if he did not leave their shop forthwith. After a few days the complainant again visited the shop. On this occasion besides both the accused he also found one Labh Singh (accused No.3, who is now dead) and Katha Singh. They restrained the complainant from making an entry into the shop by extending threats to kill him. They declared that the complainant had no right to enter into the shop.

7. The complainant filed a criminal complaint under Section 408 & 448 IPC. The accused were summoned and after taking preliminary evidence, accused Labh Singh and Katha Singh were discharged, while Kirpal Singh and absconder Ratan Lal were summoned for the offences under Sections 408/448 IPC. Revision Petitions were filed before the Sessions and Circuit Bench of the Delhi High Court. Finally Katha Singh and Labh Singh were summoned. Both the accused Katha Singh and Labh Singh were charged under Sections 448/34 IPC, while a separate charge under Section 408 IPC was framed against accused Kirpal Singh.

8. The trial court gave a detailed and elaborate judgment. The complainant at the initial stage had examined 9 witnesses as the pre-charge evidence against the accused Kirpal Singh and Labh Singh. Katha Singh had not been summoned and the summoned accused Ratan Lal had been declared a proclaimed offender. Accused Kirpal Singh cross-examined these 9 witnesses. Subsequently Labh Singh and Katha Singh were also summoned and again pre-charge evidence was taken. At that stage, nine witnesses were again examined and cross-examined. However, after framing of the charge it was found that some of the witnesses had died. These witnesses are Sai Dass examined as PW.3 on 16.3.1967 against Kirpal Singh and again as PW.7 examined on 12.2.1982 and 11.11.1983 against all the accused. Similarly Diwan Singh examined as PW.4 on 4.8.1966 against accused Kirpal Singh had also died. The other witness who died during the trial was Jai Kishan Lal Sharma examined as PW.3 on 3.4.1967 against the accused Kirpal Singh.

9. The other witness Gurbaksh Singh examined as PW-5 on 1.4.1967, could not be traced out by the respondent. The trial court and the learned ASJ agreed that the statement of Sai Dass, though he has not been examined, after a charge, can be read against both the accused by virtue of Section 33 of the Evidence Act as all the conditions prescribed therein are obtainable. Both the Courts also agreed that the statements of Dewan Singh and Jai Kishan Lal Sharma against appellant Kirpal Singh can be read against him on the strength of enabling provision, i.e., Section 33 of the Evidence Act. The complainant after the charge, has examined Tulsi Dass as PW-1. Wazir Singh examined himself as PW-2, Bhagat Ram as PW-3 and P.S. Bawa as PW-4. The complainant had proved that this shop in question was allotted to him as a displaced person from Pakistan by the Ministry of Rehabilitation. This shop remained in possession of Kirpal Singh and Katha Singh (who were employed by the complainant as his servants) after they had dispossessed him (complainant) on 24.6.1963.

10. It may be pertinent to mention that the conveyance deed was also duly executed in favor of the complainant by the Managing Officer, Office of the Regional Settlement Commissioner on behalf of the President of India on 19.5.1963. This document has been placed on record. The ownership of the complainant Wazir Singh, even otherwise was never questioned. The complainant proved on record that he had employed Kripal Singh and Katha Singh on a monthly salary. The contract of employment pertained to Katha Singh, is exhibited as PW-1/B and contract of employment of Kripal Singh, is exhibited as PW-1/C. Both these contracts were signed by the accused Katha Singh and Kripal Singh. The complainant Wazir Singh deposed that services of Katha Singh were terminated and in his place Rattan Lal was employed. He produced employment agreement of Rattan Lal (Exhibit PW-1/E) executed on 14.11.1961. Sai Dass is a witness to this agreement. On the strength of the statement of the complainant and the witnesses, the complainant proved his case. Both the trial court and the learned Additional Sessions Judge accepted the claim of the complainant. The accused claimed tenancy of the shop. According to Katha Singh he was working as a partner of deceased accused Labh Singh. Labh Singh is the father of Kripal Singh. Kripal Singh in his statement under Section 313 Cr.P.C. claimed that Wazir Singh let out the shop to his father Labh Singh in February, 1961. Admittedly, no rent agreement was executed. Dewan Singh (PW-3), Tulsi Dass (PW-4), Gurbaksh Singh (PW-5) and Jai Kishan (PW-6) were examined in pre-charge evidence which clearly revealed that Wazir Singh was having dominion over the property in question up to 24.6.1963. Kirpal Singh and absconder Rattan Lal did not allow the complainant to enter into his own shop. The complainant Wazir Singh was subjected to the cross-examination on a number of dates after framing of the charge. According to the trial court, the testimony of the complainant was consistent regarding the ownership and possession of the suit property from 1953 to 24.6.1963. This finding has also been affirmed by the learned Additional Sessions Judge. After examining all the witnesses, the trial court came to a clear finding that the complainant had all along been in possession of the property in question which was allotted to him by the Rehabilitation department in his capacity as a displaced person from Pakistan until he was dispossessed by the Court on 24.6.1963. The findings of the trial court have been affirmed by the learned Additional Sessions Judge.

11. The trial Court has come to the definite conclusion that the accused persons are guilty of the offences under section 448 and 34 IPC. The conviction has been upheld by learned A.S.J. I have heard learned counsel for the accused at length. I have carefully examined the entire record of the case. I cannot find any infirmity in the conclusions arrived at by the courts below. The revision petition filed by Kripal Singh and Katha Singh is totally devoid of any merit and is accordingly dismissed.

12. The main grievance of the complainant Wazir Singh in his revision petition is that the Court ought not to have released the accused persons on probation in the facts and circumstances of this case. It is submitted that the complainant has been harassed for almost four decades and was compelled to spend most of his life in the court proceedings. All these years, the complainant was pushed from pillars to posts. Perhaps, this must be one of the most exceptional cases in which admittedly the real owner of the shop was deprived of its possession and use for almost four decades and during this period he was not paid a penny as a rent or compensation in any form. This indeed is a sorry tale of how an honest and real owner can suffer for decades in a legal tangle and the real owner (complainant) is deprived from the possession and use the said shop. Even if the accused persons' entry into the shop was lawful the accused persons retained it unlawfully and dishonestly for more than 37 years (from 24.6.1963). They are clearly guilty of committing continuous trespass for all these years which is punishable under Section 448 IPC. The Hon'ble Supreme Court in the case of Gokak Patel case observed as under:

" House trespass is punishable under Section 448 of the Indian Penal Code. When entry into or upon property in possession of another is lawful then unlawfully remaining upon such property with the object of intimidating, insulting or annoying the person in possession of the property would be criminal trespass. The offence would be continuing so long as the trespass is not lifted or vacated and intimidation, insult or annoyance of the person legally in possession of the property is not stopped"

13. When this revision petition was filed by the complainant about 90 years and during the pendency of this petition he has died and his son (Gurdeep Singh) is contesting this petition. The complainant in his entire lifetime could not, get possession of the shop despite the fact that he was the real owner of the shop. He did not also get even a penny as a rent or compensation in last 37 years. How can such persons ever have any respect for the rule of law or the judicial system? This is happening because of the tremendous delay in disposal of such like matters in Courts. Like the petitioner many other litigants are suffering in silence in the same way. This is happening primarily because of inadequate infrastructure and inadequate number of judicial officers. The Centre and State Governments must look into this aspect in all seriousness and virtually on the war footing provide necessary infrastructure of court rooms and provide adequate number of judicial officers and supporting staff. Otherwise the judicial system can hardly acquire any legitimacy or credibility which is absolutely imperative for the smooth functioning of the democracy and rule of law.

14. On consideration of the totality of the facts and circumstances of this case, while upholding the judgments of the Courts below convicting the accused and releasing them on probation, I direct that the possession of the shop in question be restored to the complainant's son Gurdeep Singh forthwith. Both the Criminal Revision Petitions are accordingly disposed of.