Sushila Garg vs State And Others
2015 Latest Caselaw 5365 Del

$~R-28

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

                                  Date of Decision: July 28, 2015

+     CRL.M.C. 979/2013
      SUSHILA GARG                                       ..... Petitioner
                             Through:   Mr. R.N. Dubey, Advocate

                    versus

      STATE & ORS.                                         .....Respondents
                             Through:   Mr. Vinod Diwakar, Additional
                                        Public Prosecutor for respondent-
                                        State with SI Kapil Kumar
                                        Ms. Mansi Sahoo, Advocate for
                                        impleader

      CORAM:
      HON'BLE MR. JUSTICE SUNIL GAUR

                         JUDGMENT

% (ORAL)

Crl.M.A.6746/2014 (for impleadment) For the reasons stated in the application, it is allowed and applicant-Brij Mohan Gupta is added a respondent-party in the main petition.

The application stands disposed of.

CRL.M.C. 979/2013 In proceedings under Section 145 of Cr.P.C., petitioner had sought execution of order of 1st September, 2008 vide which she had been

CRL.M.C. 979/2013 Page 1 permitted to continue in possession of the disputed property with a rider that she can be dispossessed by following due process of law. In the execution proceedings, vide order of 2nd December, 2011 (Annexure P-8) local police was directed to ensure the compliance of the aforesaid order of 1st September, 2008. Finding that the local police is not complying with the aforesaid order, petitioner had filed a criminal revision petition seeking enforcement of the aforesaid order (Annexure P-8) and the said revision petition stands dismissed as not maintainable by the revisional court vide order of 16th December, 2013, which is impugned in this petition.

In the impugned order, it has been held that the order of 2 nd December, 2011 passed (Annexure P-8) in the execution proceedings is an interlocutory order.

At the hearing, learned counsel for petitioner had contended that the order of 2nd December, 2011 (Annexure P-8) is not an interlocutory order and the revisional court ought to have ensured that the order of 2 nd December, 2011 (Annexure P-8) was complied with by the local police.

During the course of hearing, it was submitted by learned counsel for petitioner that petitioner had made a complaint on 17 th May, 2012 (Annexure P-12) to the local police regarding petitioner being not permitted to enter into the premises in question and it was also submitted that an application under Section 156 (3) of Cr.P.C. is pending before the trial court. Reliance was placed by learned counsel for petitioner upon decision of a co-ordinate Bench of this Court in Jagdish Gandhi & Anr. V. State & Anr. 153 (2008) DLT 64 wherein it was held that an order under Section 145 of Cr.P.C. is not an interlocutory order. Reliance was

CRL.M.C. 979/2013 Page 2 also placed upon a decision of a Division Bench of this Court in the matter of Court on Its Own Motion in Re. Sh. Vinod Kumar Jain, 2013 SCC OnLine Del 4201 to submit that the conduct of respondent-Brij Mohan Gupta is contumacious and so, he deserves to be punished for contempt as has been done in Vinod Kumar Jain (supra).

Attention of this Court was also drawn to Apex Court's decision in Laxmibai (Dead) Thr. Lrs. & Anr. v. Bhagwantbuva (Dead) Thr. LRS. & Ors. I (2013) SLT 644 to remind this Court that the substantial justice deserves to be preferred and on technicality, the order (Annexure P-8) cannot be termed to be an interlocutory one.

Learned counsel for the intervener/respondent had sought to argue this case on merits and had submitted that there is no substance in this petition.

Having heard learned counsel for the parties as well as the intervener and on perusal of the impugned order and order of 2 nd December, 2011 (Annexure P-8), the material on record and the decisions cited, I find that the order of 2nd December, 2011 (Annexure P-8) is infact an interlocutory order and the impugned order does not suffer from any palpable error. So far as the compliance of the order of 1 st September, 2008 is concerned, I find that it is not clearly brought out before this Court as to what is the background which compels petitioner to seek re-entry into the premises in question when order of 1 st September, 2008 holds that petitioner is in possession of the premises in question. In any case, since the controversy now sought to be raised in this petition is already the subject matter of the pending application under Section 156 (3) Cr.P.C. before the trial court, therefore, this Court is not inclined to

CRL.M.C. 979/2013 Page 3 exercise its inherent extraordinary jurisdiction under Section 482 of Cr.P.C..

This petition is disposed of while making it clear that the dismissal of this petition will not stand in the way of trial court to consider the pending application under Section 156 (3) Cr.P.C. independently.

With aforesaid observations, this petition stands disposed of.

                                                       (SUNIL GAUR)
                                                          JUDGE
JULY 28, 2015
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CRL.M.C. 979/2013                                                      Page 4