Narender Kumarm & Anr. vs State & Ors.
2009 Latest Caselaw 4466 Del

           IN THE HIGH COURT OF DELHI AT NEW DELHI


                        W.P. (Crl.) No. 1011/2009

                        Judgment delivered on: November 04, 2009



Narender Kumar & Anr.                      ......Petitioners
                  Through: Mr. Khusbhir Singh, Adv.



                             versus

State & Ors.                                           ..... Respondents

Through: Mr. Piyush for Mr. Vikas Pahwa, Additional Standing Counsel, for the State.

CORAM:

HON'BLE MR. JUSTICE KAILASH GAMBHIR,


1. Whether the Reporters of local papers may                      Yes
   be allowed to see the judgment?


2. To be referred to Reporter or not?                             Yes

3. Whether the judgment should be reported                        Yes
   in the Digest?




 KAILASH GAMBHIR, J. Oral:

By this writ petition filed under Article 226 of the Constitution of

India the petitioners seek directions to direct respondents' No. 2 and 3

to register an FIR against the offenders including erring police officials

posted at P.S. Farsh Bazar on the basis of complaints of the petitioners

dated 3.6.2009 and 18.7.2009. The petitioners also seek directions

against the police officials posted at police control room who were on

duty at the time when the petitioners had lodged a complaint on 18th

July, 2009.

Brief facts relevant for deciding the present writ petition are:-

Late Sh.Bishambhar was residing in House No.4/2335, Gali No.6,

Bihari Colony, Shahdra, Delhi, along with his family. He had two sons

namely Narendra Kumar, Raj Kumar and three daughters. After the

dealth of Bishambhar Dyal in 1992 , his son Raj Kumar was inducted in

Delhi Police as a Constable in the year 1993. Raj Kumar married with

Mithlesh @ Pooja against the will of the family members. Narendra

Kumar was living in the house in Bihari Colony. After the death of Raj

Kumar, Pooja along with her sons Master Sahil Chaudhary and Chahat

Chaudhary left the rented accommodation and they started residing in

the said property bearing House No. 4/2335,Gali NO. 6, Bihari Colony,

Shahdra, Delhi with the consent of her in-laws and advice of brother-in-

law Narendra Kumar. The petitioner No.1 got the sale documents dated

as 13.4.2009 executed from his mother and witnessed by the sister of

petitioner No.1.

The petitioner No.1 out of 100 Sq. Yards had raised the

construction on the area measuring 60 Sq. Yards, which opens towards

Gali No.6 and the remaining 40 yards as a courtyard (open area) with

an entry from the gate of Gali No.7. The lady Pooja started residing in

the property having entrance towards Gali No.7. According to

Narendra Kumar some unidentified female named Pooja intruded in the

premises of petitioner No. 1. He did not knew Pooja and as per him his

brother Raj Kumar was never married and was a bachelor. Pooja did

not have any right to trespass in the said property as she was not his

wife. She has been joined by the errant police officials in land grabbing

and trespassing into the property of Petitioner No. 1. On account of

these events, the petitioner in the instant case seeks directions to

direct respondents to register an FIR against offenders including errant

police officials who according to him allowed Pooja to intrude and

illegally trespass into the property of petitioners by breaking open the

locks.

Mr. Khushbir Singh, counsel appearing for the petitioners submits

that petitioner No.1 is living at 4/2335, Gali No. 6 and 7, Behari Colony,

Shadara, Delhi, on a property built on area measuring 100 sq. yds,

while petitioner No. 2 is living in the said property on an area

measuring 50 sq. yds. Counsel further submits that petitioner No. 1 out

of 100 sq. yds had raised construction on an area measuring 60 sq.

yards, which opens towards gali No. 6 and remaining 40 sq. yds has a

separate entry from the gate of gali No. 7. Counsel further submits that

the said property was purchased by the petitioners from his mother

vide agreement to sell dated 13.4.2009, General Power of Attorney

dated 17.12.2007 and Will etc. Counsel for the petitioners further

submits that on 3.5.2009 at about 9.30 p.m. the accused persons

named in the complaint dated 3.6.2009 attempted to forcibly enter in

the said property of the petitioners. All the accused persons had forced

the entry of the said lady Pooja in the said property, but no police

assistance came forth despite the complaint lodged by the petitioners

till 10.30 p.m. when one Head Constable K.K. Sharma and Constable

Jawahar Singh came at the spot who instead of providing police

assistance, helped Pooja and allowed her to trespass into the said

property. It is further stated that at the instigation of the police officials

co-accused persons broke open the locks of the doors of the side

opening towards gali No. 7 of the said property and in this manner they

all entered into the property of petitioner No. 1. The petitioners kept on

dialing police control room again and again against the nefarious

acts of accused persons. It is also stated that on 4.5.2009 again the

said acts were repeated by the accused persons and no police

assistance was given to the petitioner No. 1 despite repeated efforts

made by him by dialing 100 number. It is also stated that petitioner

No. 2 had filed an application under Section 156(2) Cr.P.C against the

accused persons for the offences committed by them on 3.5.2009 and

4.5.2009, but the said application of petitioner No. 2 was dismissed by

the learned Magistrate based on the status reports filed by the police

and the same being treated as being false and frivoulous. It is further

stated that petitioner No. 1 had also filed a civil suit No.228/2009 for

permanent injunction, which was pending in the Court of Shri Pulastya

Pramachala, Metropolitan Magistrate-cum-Civil Judge, Karkardooma,

Delhi. In the said matter the Court gave directions for the appointment

of a Local Commissioner on 30.5.2009 and on the execution of the

commission the Local Commissioner had filed his report before the said

Court. It is further submitted that before the arrival of the Local

Commissioner the police officials had allowed the said lady Pooja to

intrude and illegally trespass into the said property of the petitioners

by braking opening the locks of the premises of petitioner No. 1. Again

due to the said illegal action of Pooja and the police officials the

petitioners approached the DCP (East) and lodged a written complaint

with a request to take action against them. Petitioner No. 1 also filed a

complaint under Section 156(3) Cr.P.C. for offences committed by

accused persons and erring police official posted at P.S. Farsh Bazar,

which too was dismissed by the learned MM Sh. R.L. Meena based on

the status report filed by the police. Petitioner No. 1 then approached

the Civil Court where the suit for permanent injunction was pending

with the application under Section 151 CPC to seek directions against

the said lady Pooja for removal of her belongings lying in the

courtyard of the premises of petitioner No. 1. It is further alleged that

on 18.7.2009 at about 2.30 p.m. the additional SHO Frash Bazar along

with the police force came to the property of the petitioners and with

the help of some goonda elements started breaking the doors from

outside of gali No. 7 Behari Colony. These persons also attempted to

break open the doors from outside of gali No. 6, but they could not

succeed in their attempts. The police officials then allowed entry of

Pooja with the help of a ladder. The petitioners lodged many

complaints against the illegal acts of said police officials and the said

lady Pooja. Counsel for the petitioners submits that instead of taking

action on the complaint of the petitioners the police officials

themselves took law in their hands in illegally allowing the said lady

Pooja to trespass into the property of petitioner Nos. 1 and 2. Counsel

thus submits that necessary directions be given by this Court for the

registration of FIR against the police officials and also against the said

lady and other accused persons named by the petitioners in their

complaints.

Pursuant to the directions given by this Court the State has filed

the status report. In the said status report filed by the State the stand

taken by the State is that Ms Pooja happens to be the Bhabhi of

petitioner No. 1 Narender Kumar as she was married to his brother

Rajkumar. It is also stated that Rajkumar expired on 27.4.2009 and

prior to his death he was residing in a rented accommodation at House

No. A-10, Gali No. 2, Ashok Nagar, Delhi. It is also stated that on

3.5.2009 Smt. Pooja with her sons left the rented accommodation and

came to reside along with the family of petitioner No. 1 after taking

consent of petitioner no.1. On 4.5.2009 a PCR call was received

regarding beating of a woman in house No. 4/2335, Gali No. 7, Bihari

Colony, Delhi and on this information Head Constable Charan Dass

visited the spot and he found that Smt. Pooja along with her two minor

sons were present in the property in question. She also stated that she

came to live in the property after having taken the permission of her

brother-in-law Narender Kumar. The said Charan Dass has also

recorded the statement of Narender Kumar and in the said statement

he clearly stated that her sister-in-law Pooja along with her two sons

came to live in the said house after the death of her husband. It was

thus found by the police that no cognizable offence was committed by

any of the persons named by the petitioners. On 4.5.2009 another PCR

call was received by the police vide D.D. No. 26-A at 2309 Hrs

regarding quarrel at house No. 4/2335, Gali No. 7, Bihari Colony, Delhi

and on reaching at the spot necessary statements of relatives and

neighbours were recorded. It is also stated that Smt. Pooja performed

tehranvi of her husband at the same premises on 8.5.2009 which was

attended by the neighbours and relatives. It is also stated that the

petitioners got executed the sale documents only on 13.4.2009 from

his mother and at that point of time the husband of Pooja was lying on

death bed. The status report further states that the petitioners also

procured an affidavit on 11.5.2009 from the mother, wherein she

falsely stated that she had no concern with her son Raj Kumar for the

last 14 years. The sale documents were witnessed by none else but

the sister of petitioner No. 1 only. In the said status report it is also

stated that the said Rajkumar had also treated his mother in private

hospital in 2006 and spent huge amount on her treatment. On 30 th

May, 2009 since the SHO was a party in the civil suit, he was present in

the Court when the order for appointment of the Local Commissioner

was made and accordingly SHO had accompanied the Local

Commissioner to visit the suit property. Various status reports were

filed by the police before the Metropolitan Magistrate taking the stand

that no cognizable offence was committed by any of the accused

persons named by the petitioners. On 18.7.2009 an application was

moved by petitioner No. 1 under Section 151 CPC to seek directions to

SHO for protection at the time of removal of the alleged trespasser

from the suit property, but without waiting for the orders of the Court

the petitioners committed trespass and theft of belonging and

ornaments of Pooja and a case under Sections 448/380/34 IPC was

registered against the petitioners and their family members vide FIR

No. 128/2009 dated 18.7.2009. It is further stated that Pooja is in

continuous possession of the said property.

On 28th July, 2009 when this matter was taken up by this Court

directions were given to the police to verify the fact as to whether

Pooja is still under the occupation of the rented accommodation or left

the same after the demise of her husband Rajkumar. On verification

the police found that the said Pooja was no more living in the rented

accommodation, which she had vacated immediately after the death of

her husband. Police also took a stand that Pooja is the legally wedded

wife of Rajkumar brother of petitioner No. 1 and she started residing in

the said property bearing No. 4/2335, Gali No. 6 and 7, Behari Colony,

Shadara, Delhi along with her two children after the demise of her

husband. After the said disclosure of the police that the Pooja happens

to be the wife of brother of petitioner No. 1, a query was posed to the

counsel appearing for the petitioners to inform as to whether the said

lady Pooja is the legally weded wife of the brother of petitioner No. 1,

but the counsel on instructions said that she was not the legally

wedded wife of Raj Kumar and therefore, she has no right to enter the

said property. On that date i.e. 11th August, 2009 petitioner No. 1

Narender Kumar was also present in the Court and he was also

questioned by this Court to disclose as to whether his brother

Rajkumar was married to Pooja or not and in reply he stated that

Rajkumar was a bachelor and he was never married. He also stated

that the petitioners do not recognize any lady with the name of Pooja,

to be the wife of deceased Rajkumar. Based on the said statement of

petitioner No. 1 directions were given to the SHO to verify the factum

of marriage of Pooja with Rajkumar and to file all documents in proof of

the said marriage and also with regard to the children who were born

out of the wedlock of Rajkumar and Pooja. Pursuant to the said

directions given by this Court fresh status report has been filed by the

State. Along with the status report the State has filed number of

documents along with the photographs. These documents comprise of

Form No. 3 submitted by the deceased Rajkumar under Rule 54(2) of

the Police Rules, nomination letter whereby the deceased Rajkumar

has nominated his wife Pooja Chaudhary to be his nominee entitled to

all the benefits payable in the event of his death while in service and

Form A furnished by the deceased Rajkumar under Rule 53.1

nominating his wife to be entitled for the amount of gratuity in the

event of his death. The State has also filed photographs, which shows

the marriage between Rajkumar and Pooja and also the photographs of

Terhavi where the children of Pooja are shown to be present. The

police has also filed various documents on record to show the proofs

with regard to the admission of the children in Sant Krishna Bodh

Public School, West Nathu Colony, Delhi, since 1.4.2009 and in the

admission form in the relevant colums name of the father has been

disclosed as Rajkumar and of the mother as Smt. Pooja Chaudhary.

All these documents coming from the Government record and the

Public school besides the photographs clearly show that the said Pooja

was the legally weded wife of Rajkumar brother of petitioner No. 1. It is

quite shocking that in the entire petition and the complaint made by

the petitioners nowhere the said relationship with Pooja has been

disclosed by the petitioners. Not only this, petitioner No. 1 has the

audacity to mislead this Court by clearly denying the said relationship

and further went to the extent of saying that Rajkumar was a bachelor

and he never got married.

Power under Section 482 Cr.P.C. cannot be exercised in favour of

unscrupulous and dishonest persons.

In Ramesh Chand Gupta and Ors. Vs. UOI & Anr. in

Crl.M.C. 3671/2007 decided on 06.02.2009, this Court observed as

under:

"Powers under Section 482 Cr.PC. should be execised by court with great care and circumspection. In this case it is manifest that complainant filed the complaint on account of personal reasons, prelilections and prejudices. Chagrined and frustrated litigant should not be permitted by the court to give vent to his frustration by invoking jurisdiction of criminal court. Invoking jurisdiction of criminal court under the circumstances is misuse of process of law. "

In Janata Dal Vs. H.S. Chaudhary & Ors., (1992) 4 SCC

305, the Hon'ble Apex Court observed as under:-

"The criminal courts are clothed with inherent powers to make orders as may be necessary for ends of justice. Such power should be exercised in appropriate cases, ex debito justiatiae, to do real and substantial justice."

In the present case the inherent powers of the court have

been invoked based on distorted, manipulated, misleading and false

averments.

Without expressing any opinion on the merits of the case as

to whether the said lady Pooja had any right to live in the said property

or not it is quite shocking to find that the petitioners throughout has

based their claim on utter falsehood by pleading that one unidentified

lady Pooja with the help of the police officials had threatened to

trespass into the property. Taking into view the said brazen dishonest

conduct of petitioner No. 1 by not truthfully disclosing his relationship

with the said lady Pooja and in a most blatant manner misleading this

Court by denying the said relationship, I am constraint to dismiss the

present petition with costs of Rs. 50,000/-. The costs of Rs. 50,000/-

shall be paid by the petitioners to Smt. Pooja wife of deceased

Rajkumar within a period of four weeks. On payment of the said

amount the petitioners shall file necessary proof with the Registrar

General of this Court.

Since petitioner No. 1 has made a false statement before this

Court on 11th August, 2009 besides swearing a false affidavit with false

averments in the petition, therefore, I am of the view that it would be

expedient and in the interest of justice to proceed against the

petitioner No. 1 under Section 340 Cr.P.C.

The Registrar General of this Court is accordingly directed

to file a complaint against petitioner No. 1 under Section 340 Cr.P.C.

The relevant records of this case be taken out with a view to proceed

against petitioner No. 1 under Section 340 Cr.P.C.

November 04, 2009                                  KAILASH GAMBHIR,J
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