Delhi High Court
Balbir Singh Sawhney vs The State & Others on 16 July, 2008
Author: Anil Kumar
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ Crl.M.C. No.2204/2008
% Date of Decision : 16.07.2008
Balbir Singh Sawhney ....... Petitioner
Through: Mr.Manoj Khanna, Advocate.
Versus
The State & Others ......... Respondents
Through : Mr.R.N.Vats, APP for the State.
CORAM :-
* HON'BLE MR. JUSTICE ANIL KUMAR
1. Whether reporters of Local papers may YES
be allowed to see the judgment?
2. To be referred to the reporter or not? NO
3. Whether the judgment should be reported NO
in the Digest?
ANIL KUMAR, J.
*
Crl.M.A. No.8168/2008
Allowed, subject to just exceptions.
The application is disposed of.
Crl.M.C. No.2204/2008 & Crl.M.A. No.8167/2008
The petitioner has challenged the order dated 11th April, 2008
passed by Shri H.S. Sharma, Additional District & Sessions Judge,
dismissing the revision petition against the order dated 9th October,
2007 of Shri R.K. Sharma, learned SDM (Kotwali), Delhi, in proceedings
under Section 145(4) of the Code of Criminal Procedure, whereby the
petitioner was directed to share joint possession with respondents No.2
and 3 and dropping the proceedings initiated on the basis of police
kalandra.
Learned counsel for the petitioner, Mr. Khanna, has very
vehemently contended that the petitioner is not in joint possession of
the premises in dispute and in any case the question of possession is a
question of fact which could not be decided in the proceedings under
Section 145 of the Code of Criminal Procedure as the question of
possession could be decided only by a court of competent jurisdiction
and not by the SDM.
The counsel for the petitioner contended that there was no
evidence to show that respondents No.2 and 3 were in joint possession
and that the Ld. ASJ has failed to consider the proceedings relating to
succession of the shop filed by the legal heirs of the deceased landlord
where the petitioner has only been asked to deposit the rent.
The petitioner was running a proprietorship business till 31st
December, 1997 and from 1st January, 1998, a partnership deed was
executed between the parties. The signatures of the parties are admitted
on the partnership deed by the petitioner. Learned counsel for the
petitioner contends that the said partnership deed was not acted upon.
Perusal of the orders and the record reveals that petitioner had
admitted before the court on 28th October, 2006 that he had sent a
letter to the competent authority of the Sales Tax Department for the
necessary amendments in the registration certificate of sales tax and
consequently amendment was carried out in the constitution of the
firm. Since, at the instance of the petitioner, the change in constitution
of firm was carried out, the learned Magistrate held that the
respondents No.2 and 3 were in joint possession and consequently it
was held that there was no jurisdiction under Section 145 of Criminal
Procedure Code to initiate the proceedings. The petitioner and
respondents No.2 and 3 are related, being son, mother and
granddaughter.
The revisional court also held that the sales tax form, dated 21st
July, 1998, was filed wherein respondents No.2 and 3 were added as
partners with effect from 1st August, 1998. Learned counsel for the
petitioner contends that the said form was cancelled and has relied on a
dealers profile showing that no business was done from 2003-04 to
2006-07. However, in the said form in the column "details of
proprietor/partners," it is stipulated that it is not available. On the
basis of the said form also it could not be inferred that the partnership
deed filed by the petitioner indicating respondent Nos.2 and 3 as
partners could be cancelled and was cancelled as allegedly it was not
acted upon.
The courts below have considered all the documents produced by
the parties and their effect and there is no material illegality or such
error in the order impugned before this Court which will require
interference by this court under Section 482 of Code of Criminal
Procedure.
The petition, in the circumstances, is without any merit and it is
dismissed.
July 16, 2008 ANIL KUMAR, J.
'Dev'
