Anil Kumar Jain & Anr. vs Paritosh Jain & Anr.
2013 Latest Caselaw 4090 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                          RESERVED ON : 9th JULY, 2013
                          DECIDED ON : 11th SEPTEMBER, 2013

+             CRL.M.C. 558/2013 & Crl.M.A.No.1825/2013
       ANIL KUMAR JAIN & ANR.                              ..... Petitioners
                           Through :    Mr.Atul Y.Chitale, Sr.Advocate
                                        with Mr.M.S.Rohilla and Mr.Karan
                                        Kanwal, Advocates.

                           versus

       PARITOSH JAIN & ANR.                               ..... Respondents
                     Through :          Mr.R.K.Jain, Advocate with
                                        Mr.P.R.Chopra and Mr.Ankur Jain,
                                        Advocates for respondent No.1.

       CORAM:
       HON'BLE MR. JUSTICE S.P.GARG

S.P.GARG, J.

1. Present petition under Article 227 of the Constitution of India

read with Section 482 Cr.P.C. has been preferred by the petitioners to set

aside a order dated 10.09.2012 of learned Metropolitan Magistrate

whereby they were summoned to face proceedings for commission of

offence punishable under Section 448 IPC. I have heard the learned

counsel for the parties and have examined the record. The petitioners and

respondent No.1 are brothers. Property bearing No. A-60, Gulmohar Park,

New Delhi belonged to their father - Paras Dass Jain who expired on

30.09.2007. The brothers are claiming share in the said property.

Petitioners' case is that Paras Dass Jain executed a Will dated 24.07.2006

in their favour and respondent No.1 was disinherited from the property

due to his conduct and behavior. The respondent No.1 who was earlier in

possession of the second floor of the property in question had left to stay

in C-77, Lajpat Nagar, New Delhi. He intended to forcibly take possession

of the second floor after the death of their father and the petitioners filed a

suit for Permanent Injunction which is pending before the Civil Court.

Section 441 IPC is not attracted as the petitioners were owner of the

property. Respondent's claim is that second floor of the property in

question was in his exclusive possession and the petitioners took its

possession forcibly and set up a forged Will.

2. Record reveals that complaint case under Section

420/468/471/448/506/380/120 B IPC read with Section 156(3) and 190

Cr.P.C. was lodged by respondent No.1 against the petitioners, L.L.Acha

& Surender Kumar Jain. On receiving the complaint, the Metropolitan

Magistrate decided to hold an enquiry into the complaint himself and

recorded evidence. After hearing arguments and considering the evidence,

he by his order dated 10.09.2012 directed process to be issued only

against the present petitioners for committing offence under Section 448

IPC. The Metropolitan Magistrate gave cogent reasons for holding that

there were sufficient grounds for proceeding against the petitioners. He

took into consideration various documents i.e. Ex.CW-1/E (letter written

to National Stock Exchange by Paras Dass Jain confirming his

possession); Ex.CW-1/F (copy of ICICI Bank letter along with copy of

cheque at the address of premises at Gulmohar Park); Ex.CW-1/G

(certified copy of membership of Sports Community Center); Ex.CW-1/I

(Jain Co-operative Bank confirming the address) besides complaint

Ex.CW-1/B lodged by his deceased father. The petitioners have not

challenged the genuineness and authenticity of the said documents. The

Trial Court also took into consideration the report of the Local

Commissioner in Civil Suit filed by the petitioners. The petitioners are not

categorical as to on which specific date the respondent No.1 vacated the

second floor which was earlier in his exclusive possession. The impugned

order issuing process against the petitioners is a very well reasoned one

which took into consideration the allegations in the complaint as also the

evidence adduced in support of it. The Metropolitan Magistrate clearly

applied his mind and analyzed the evidence minutely. It is not a case

where he had passed an order issuing process in a mechanical manner or

just by way of routine. The fact that the petitioners were not summoned

for committing offence under Section 468/471/506 IPC and no process

was ordered to be issued against L.L.Acha and Surender Kumarn Jain

reflects that there was application of mind.

3. Section 441 and succeeding provisions are intended to

protect possession as distinguished from title or ownership of the

property. Title or right of ownership can be decided only by a competent

Civil Court. Even a joint owner of land who enters upon the land with the

intention and knowledge of doing a wrongful act commits criminal

trespass. A joint owner of the property is entitled to have joint possession

restored to him in a Civil Court; but he is not justified in taking the law

into his own hands to recover possession. If he does so, he is prima facie,

liable for criminal trespass. Intention to insult or annoy can be inferred

when an individual forcibly or clandestinely enters a house which he

knew to have been definitely closed and barred against him by the owner /

occupier thereof. Such an intention is inherent in the acts of the individual

as to form an essential part of the purpose with which entry into the house

was effected. It is a legal preposition of law that scope of inquiry under

Section 202 Cr.P.C. is extremely limited - limited only to the

ascertainment of the truth or falsehood, of the allegations made in the

complaint on the materials placed by the complaint before the Court in

order to determine the question of the issue of process. The Section does

not say that a regular trial in adjudging the guilt or otherwise of the person

complained against should take place at that stage; for the person

complained against can be legally called upon to answer the accusation

made against him only when a process has issued and he is put on trial. In

the instant case, the complicated question of ownership of the property in

question on the basis of Will, which is disputed by the complainant being

forged, cannot be taken into consideration at this stage.

4. In the light of above discussion, the petition is unmerited and

is dismissed. It is however made clear that observations in the impugned

order and this order shall have no impact on the merits of the case.

Pending application also stands disposed of being infructuous.

(S.P.GARG) JUDGE September 11, 2013 tr