Delhi High Court
Ashok Kumar vs State & Anr. on 11 December, 2014
Author: V.P.Vaish
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CRL.M.C. No. 1608/2012
Date of decision: 11th December, 2014
ASHOK KUMAR ..... Petitioner
Through: Mr.Anil Kumar, Adv.
versus
STATE & ANR. ..... Respondents
Through: Mr.M.P. Singh, APP for the
State.
CORAM:
HON'BLE MR. JUSTICE VED PRAKASH VAISH
VED PRAKASH VAISH, J. (ORAL)
1. By way of this petition under Article 227 of the Constitution of
India read with Section 482 of the Code of Criminal Procedure
(hereinafter referred to „Cr.P.C.‟), the petitioner assailed order dated
15.11.2011 passed by learned Metropolitan Magistrate, Delhi whereby
the charges punishable under Sections 447/509 IPC were framed
against the petitioner.
2. Shorn off unnecessary details, the facts giving rise to the present
petition are that respondent No.2/ Smt. Kamla Devi filed a complaint
on the allegations inter alia that the complainant is residing on the
ground floor of property bearing No.2183/7, Shora Kothi, Subzi
Mandi, Delhi and the petitioner No. 1/accused persons had purchased
first floor of the said property from the complainant in December,
2006. On 06.02.2007, the petitioner trespassed into the property by
entering into the portion which was in exclusive possession of the
complainant. The complainant adduced pre-summoning evidence.
After recording pre-summoning evidence, vide order dated 17.11.2009,
learned trial Court took cognizance of the offence under Sections
447/509/34 IPC.
3. Vide order dated 14.01.2011, learned trial Court passed an order
for framing of charges under Sections 448/323/506(II) IPC. The
petitioner challenged the said order by filing Crl. Rev. No.10/2011.
Vide order dated 03.05.2011, the said petition was allowed by learned
Additional Sessions Judge, Delhi and the matter was remanded back to
learned Metropolitan Magistrate with the directions to proceed as per
procedure provided under the Code of Criminal Procedure.
4. Vide order dated 15.11.2011, learned trial Court framed the
charges for the offence punishable under Sections 447/509 IPC against
the petitioner.
5. Against the said order, the petitioner filed Crl. Rev. No.7/2011
which was dismissed by learned Additional Sessions Judge, North
Delhi vide order dated 22.02.2012.
6. Feeling aggrieved with the impugned order, the petitioner has
filed the present petition.
7. Notice was issued to respondent No.2 but none appeared on
behalf of respondent No.2 despite service.
8. Learned counsel for the petitioners urges that petitioner
No.1/Ashok Kumar had purchased the first floor with roof rights of the
property bearing No.2183, Shora Kothi, Subzi Mandi by virtue of
registered sale deed dated 04.12.2006. The respondent
No.2/complainant is in possession of Ground Floor of the said property
and respondent No.2 started raising construction and the petitioner
No.1 filed a suit for injunction. He further submits that there is no
specific allegation against the petitioner and the offence under Sections
447/509 IPC is not made out.
9. The scope of Section 482 Cr.P.C. has been considered in
„Dhanalakshmi v. R. Prasanna Kumar‟, (1990) Supp. SCC 686. In
the said case, it was observed as under:-
"Section 482 of the Code of Criminal Procedure
empowers the High Court to exercise its inherent powers
to prevent abuse of the process of court. In proceedings
instituted on complaint exercise of the inherent power to
quash the proceedings is called for only in cases where
the complaint does not disclose any offence or is
frivolous, vexatious or oppressive. If the allegations set
out in the complaint do not constitute the offence of
which cognizance is taken by the Magistrate it is open to
the High Court to quash the same in exercise of the
inherent powers under Section 482. It is not, however,
necessary that there should be a meticulous analysis of
the case, before the trial to find out whether the case
would end in conviction or not. The complaint has to be
read as a whole. If it appears on a consideration of the
allegations, in the light of the statement on oath of the
complainant that ingredients of the offence/ offences are
disclosed, and there is no material to show that the
complaint is mala fide, frivolous or vexatious, in that
event there would be no justification for interference by
the High Court.
The High Court without proper application of the
principles that have been laid down by this Court in
Sharda Prasad Sinha v. State of Bihar, S. Trilok Singh v.
Satya Deo Tripathi and Municipal Corpn. of Delhi v.
Purshotam Dass Jhunjunwala proceeded to analyse the
case of the complainant in the light of all the probabilities
in order to determine whether a conviction would be
sustainable and on such premises arrived at a conclusion
that the proceedings are to be quashed against all the
respondents. The High Court was clearly in error in
assessing the material before it and concluding that the
complaint cannot be proceeded with. We find that there
are specific allegations in the complaint disclosing the
ingredients of the offence taken cognizance of. It is for
the complainant to substantiate the allegations by
evidence at a later stage. In the absence of circumstances
to hold prima facie that the complaint is frivolous when
the complaint does disclose the commission of an offence
there is no justification for the High Court to interfere."
10. Further, in „State of Bihar vs. Murad Ali Khan‟, (1988) 4 SCC
655, the Apex Court observed as under: -
"It is trite that jurisdiction under Section 482 Cr.P.C.,
which saves the inherent power of the High Court, to
make such orders as may be necessary to prevent abuse
of the process of any court or otherwise to secure the
ends of justice, has to be exercised sparingly and with
circumspection. In exercising that jurisdiction the High
Court should not embark upon an enquiry whether the
allegations in the complaint are likely to be established
by evidence or not. That is the function of the trial
Magistrate when the evidence comes before him.
Though it is neither possible nor advisable to lay down
any inflexible rules to regulate that jurisdiction, one
thing, however, appears clear and it is that when the High
Court is called upon to exercise this jurisdiction to quash
a proceeding at the stage of the Magistrate taking
cognizance of an offence the High Court is guided by the
allegations, whether those allegations, set out in the
complaint or the charge-sheet, do not in law constitute or
spell out any offence and that resort to criminal
proceedings would, in the circumstances, amount to an
abuse of the process of the court or not."
11. In view of the authoritative pronouncement in the
aforesaid judgments, it is evident that that unless this Court
feels that the inherent jurisdiction is to be exercised in a
particular case to correct the mistake committed by the
revisional court while acting under Section 482 of Cr.P.C. and
that too after learned Additional Sessions Judge had declined to
interfere in the matter, this court cannot enter the arena of
appreciation of evidence.
12. In the instant case, learned trial Court, after considering
the oral as well as documentary evidence, formed an opinion
that a prima facie case is made out, therefore this Court cannot
delve into the merits of the case for framing of charges. Thus,
there is no illegality or infirmity in the impugned order passed
by learned trial Court.
Accordingly, the petition is dismissed.
Crl.M.A. No.5629/2012
The application is dismissed as infructuous.
(VED PRAKASH VAISH)
JUDGE
DECEMBER 11, 2014/gm
