Delhi High Court
Sewak Balkishan Gupta vs The State & Ors. on 1 December, 2017
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on: 1st December, 2017
1. CRL.M.C. 4542/2016 & CRL.M.A.18997/2016
SEWAK BALKISHAN GUPTA ..... Petitioner
Through: Mr.Ramesh Gupta, Sr. Adv. with
Mr.Sunil Magoo, Adv.
versus
THE STATE ..... Respondent No.1
JITENDER NATH ..... Respondent No.2
RAJNISH GOENKA ..... Respondent No.3
KAMAL GAIND ..... Respondent No.4
RAM PHAL BANSAL ..... Respondent No.5
Through: Mr.Raghuvinder Varma, APP for
State with SI Chanchal Singh, PS-
EOW. Mr.Sumit Chander, Adv. with
Mr.Mizan Siddiqui, Mr.Jatin
Choudhary and Mr.Supreet Prasad,
Advs. for R-2.
2. CRL.M.C. 223/2017 & CRL.M.A.982/2017
RAM PHAL BANSAL ..... Petitioner
Through: Mr.A.K.Singla, Sr. Adv. with
Mr.Rajesh Bansal, Mr.Arun
Shrivastava, Mr.Pramod Dayal,
Mr.Deepak Dewan, Mr. Vijay K.
CRL.M.C.4542/2016, CRL.M.C.223/2017, CRL.M.C.317/2017, CRL.M.C.4544/2016
Page 1 of 20
Gupta, Mr. Mohit Saroha and
Ms.Ridhima Bansal, Advs.
versus
STATE ..... Respondent No.1
JITENDER NATH ..... Respondent No.2
SEWAK BALKISHAN GUPTA ..... Respondent No.3
KAMAL GAIND ..... Respondent No.4
RAJNISH GOENKA ..... Respondent No.5
Through: Mr.Raghuvinder Varma, APP for
State with SI Chanchal Singh, PS-
EOW. Mr.Sumit Chander, Adv. with
Mr.Mizan Siddiqui, Mr.Jatin
Choudhary and Mr.Supreet Prasad,
Advs. for R-2.
3. CRL.M.C. 317/2017 & CRL.M.A.1387/2017
RAJNISH GOENKA ..... Petitioner
Through: Mr.A.S.Chandhiok, Sr. Adv. with
Mr.Sunil Magoon, Mr.Dipender
Chauhan, Ms.Ramya Kutty and
Ms.Anshu, Advs.
versus
STATE ..... Respondent No.1
JITENDER NATH ..... Respondent No.2
KAMAL GAIND ..... Respondent No.3
SEWAK BALKISHAN GUPTA ..... Respondent No.4
CRL.M.C.4542/2016, CRL.M.C.223/2017, CRL.M.C.317/2017, CRL.M.C.4544/2016
Page 2 of 20
RAM PHAL BANSAL ..... Respondent No.5
Through: Mr.Raghuvinder Varma, APP for
State with SI Chanchal Singh, PS-
EOW. Mr.Sumit Chander, Adv. with
Mr.Mizan Siddiqui, Mr.Jatin
Choudhary and Mr.Supreet Prasad,
Advs. for R-2.
4. CRL.M.C. 4544/2016 & CRL.M.A.19004-19005/2016
KAMAL GAIND ..... Petitioner
Through: Mr.Ramesh Gupta, Sr. Adv. with
Mr.Sunil Mangon, Adv.
versus
THE STATE ..... Respondent No.1
JITENDER NATH ..... Respondent No.2
RAJNISH GOENKA ..... Respondent No.3
SEWAK BALKISHAN GUPTA ..... Respondent No.4
RAM PHAL BANSAL ..... Respondent No.5
Through: Mr.Raghuvinder Varma, APP for
State with SI Chanchal Singh, PS-
EOW. Mr.Sumit Chander, Adv. with
Mr.Mizan Siddiqui, Mr.Jatin
Choudhary and Mr.Supreet Prasad,
Advs. for R-2.
CRL.M.C.4542/2016, CRL.M.C.223/2017, CRL.M.C.317/2017, CRL.M.C.4544/2016
Page 3 of 20
CORAM:
HON'BLE MR. JUSTICE I.S.MEHTA
JUDGMENT
I. S. MEHTA, J.
1. By virtue of the above four captioned petitions, the petitioners
invoke the inherent jurisdiction of this Court under Section 482 of
the Code of Criminal Procedure, 1973 read with Article 227 of the
Constitution of India, 1950 to set aside the order of framing of
charge dated 6th May, 2014 and 17th May, 2014 passed by the
learned Chief Metropolitan Magistrate in FIR No. 119/97 dated 10th
March, 1997 under Sections 201/448/471/120-B/34 IPC registered
at Police Station Chitranjan Park, New Delhi, which was upheld by
the District and Sessions Judge, South East, Saket Court on 7 th
October, 2016.
2. The factual matrix of the case is that, the respondent no.2 -
Jitender Nath, the President of Shri Sanatan Dhanam, Greater
Kailash-II Sabha made a complaint on 3rd March, 1997 with the
Commissioner of Police, regarding commission of offence of
criminal trespass, destruction of records, man-handling of the staff
and use of force in the Administrative Block of Shri Sanatan
Dharam Greater Kailash-II Sabha. It was alleged by the respondent
no.2/complainant that on 2nd March, 1997 accused persons namely
B.K. Rana, P.R. Gulati, Rajnish Goenka and Kamal Gaind in
furtherance of criminal conspiracy trespassed into the office of
Sanatan Dharam Greater Kailash-II in order to grab the
CRL.M.C.4542/2016, CRL.M.C.223/2017, CRL.M.C.317/2017, CRL.M.C.4544/2016
administration of the said Sabha and snatched the keys from the
respondent no.2/complainant and took illegal possession of
gullak/chest. It was further alleged that all the accused persons
forged three documents i.e. requisition for holding Extraordinary
General Body Meeting dated 3rd January, 1997; Notice dated 4th
February, 1997 for attending Extraordinary General Body Meeting
and attendance register of the Extraordinary General Body Meeting
dated 2nd March, 1997 to justify their act and used these documents
in litigations before High Court and were filed in the office of
Registrar of Societies on 5th March, 1997 by Rajnish Goenka and
Ramphal Bansal assisted the accused persons.
3. It was further alleged that the accused persons opened a new
account in the State Bank of Indore, Greater Kailash-II in the name
of Sanatan Dharam Greater Kailash-II Sabha and cheated the
contributors, whose money was deposited in new account.
Furthermore, it was alleged by the complainant that Advocate Ram
Phal Bansal represented the accused persons in the High Court and
though he gave undertaking on behalf of them that the forged
documents would be produced for the purpose of investigation, but
the same were alleged to be destroyed by him in conspiracy with
co-accused and he gave an excuse that these documents have been
misplaced in his office.
4. The said complaint was registered as an FIR No.119 of 1997 on
10th March, 1997 and vide order dated 28th October, 1997 passed by
the Lieutenant Governor of Delhi, the investigation of the case FIR
No.119/1997 registered at Police Station Chitranjan Park was
CRL.M.C.4542/2016, CRL.M.C.223/2017, CRL.M.C.317/2017, CRL.M.C.4544/2016
transferred to Land and Building Racket Section of Economic
Offences Wing Cell of the Crime branch.
5. Thereafter, the petitioners through Advocate Ram Phal Bansal
(the petitioner herein in Crl.M.C. 223/2017) filed a Criminal Writ
Petition No.3 of 1998 in this Court for quashing of FIR No. 119/97
of Police Station Chitranjan Park, initially registered under Sections
448/420/468/471 read with Section 120-B of IPC. The said FIR was
quashed by this Court vide order dated 16 th October, 1998.
Subsequently, the respondent no.2-Jitender Nath filed a Criminal
Appeal No.561 of 1999 in the Hon'ble Supreme Court challenging
the order dated 16th October, 1998 passed by this Court. Vide order
dated 19th August, 2004, the Hon'ble Supreme Court set aside the
order dated 16th October, 1998 passed by this Court and directed the
investigation to proceed further in accordance with law, after which
charge sheet was to be filed by the investigating agency and
directed the learned Magistrate to proceed in accordance with law.
6. The Economic Offences Wing Cell of the Crime branch filed its
charge sheet on 17th March, 2006 under Section
201/420/448/468/471/120-B of IPC against all the seven accused
persons namely:
i. Prithvi Raj Gulati,
ii. Sukhdev Raj,
iii. Kamal Gaind,
iv. Sewak Balkishan Gupta,
v. B. K. Rana,
CRL.M.C.4542/2016, CRL.M.C.223/2017, CRL.M.C.317/2017, CRL.M.C.4544/2016
vi. Rajnish Goenka and
vii. Ram Phal Bansal.
The accused persons Prithvi Raj Gulati, Sukhdev Raj and B. K.
Rana died during the pendency of this case.
7. The learned Metropolitan Magistrate vide order dated 15th
September, 2006 took cognizance of the offences punishable under
Sections 420/448/468/471/120-B of IPC and issued summons
against all the six accused persons except Ram Phal Bansal for want
of evidence.
8. The respondent no.2/complainant- Jitender Nath preferred a
Criminal Revision Petition No.832 of 2006 under Section 397 read
with Sections 401/403/482 Cr.P.C. before this Court seeking to set
aside a portion of the order dated 15th September, 2006 passed by
the learned Metropolitan Magistrate, whereby he refused to take
cognizance of offence committed by Ram Phal Bansal under
Section 201 read with Section 120-B of IPC. On the other hand,
petitioners namely Rajnish Goenka, B.K. Rana, Kamal Gaind,
S.R.Chanan and Sewak Balkishan Gupta preferred Criminal
Miscellaneous Petition No. 7311-15 of 2006 before this Court to
quash FIR No. 119/1997 under Sections 420/448/468/471/120-B of
IPC and challenged the summoning order dated 15 th September,
2006. This Court decided both the petitions together and vide the
common judgment dated 17th May, 2010 allowed the Criminal
Revision Petition No.832 of 2006 filed by the respondent no. 2-
Jitender Nath and directed all the accused persons including Ram
CRL.M.C.4542/2016, CRL.M.C.223/2017, CRL.M.C.317/2017, CRL.M.C.4544/2016
Phal Bansal to appear before the learned Metropolitan Magistrate on
31st May, 2010.
9. Meanwhile, the petitioner Ram Phal Bansal preferred a Special
Leave to Appeal (Crl.) No. 5510 of 2010 against the judgment and
order dated 17th May, 2010 in Crl. Rev.P. No.832 of 2006 passed by
this Court. The Hon'ble Supreme Court, vide order dated 16th
August, 2010 dismissed the petition.
10. In another round of litigation, petitioners namely Kamal Gaind
and Ram Phal Bansal approached this Court by way of Writ Petition
(Crl.) No. 1379 of 2013 and Writ Petition (Crl.) No. 1502 of 2013
respectively, filed on 12th September, 2013 for quashing of FIR No.
119/97 registered at Police Station Chitranjan Park and charge sheet
dated 17th March, 2006. This Court vide order dated 30th September,
2013 dismissed both the petitions and observed that criminal
proceeding cannot be quashed merely on the ground of delay.
Aggrieved by the order dated 30th September, 2013, the petitioner
Kamal Gaind preferred a Special Leave to Appeal (Crl.) No. 1263
of 2014 in Hon'ble Supreme Court, which was dismissed as
withdrawn on 13th February, 2015.
11. Thereafter, on the basis of evidence on the record and after
hearing the arguments on charge, the learned Chief Metropolitan
Magistrate vide order dated 6th May, 2014 and 17th May, 2014
framed charges against all the accused persons. The petitioner-Ram
Phal Bansal was charged on 24th May, 2014 under Sections
201/120-B/34 IPC, the petitioner-Sewak Bal Kishan Gupta was
charged on 17th May, 2014 under Section 471/201/120-B/34 IPC
CRL.M.C.4542/2016, CRL.M.C.223/2017, CRL.M.C.317/2017, CRL.M.C.4544/2016
and the petitioners- Rajnish Goenka and Kamal Gaind were charged
on 17th May, 2014 under Sections 448/471/201/120-B/34 IPC. Vide
the order dated 6th May, 2014, Sewak Bal Kishan Gupta was
discharged for offence punishable under Section 448 IPC and
accused persons namely Rajnish Goenka, Kamal Gaind and Sewak
Bal Kishan Gupta were discharged for the offence under Section
468 IPC.
12. Aggrieved by the above said orders dated 6th May, 2014 and
17th May, 2014, all the accused persons namely Ram Phal Bansal,
Kamal Gaind, Sewak Balkishan Gupta and Rajnish Goenka
preferred separate revision petitions and filed Crl.Rev.No. 04/16,
Crl.Rev.No.118/14, Crl.Rev.No. 119/14 and Crl.Rev.No. 146/14
respectively, in the Court of District & Sessions Judge, South East,
Saket Court, New Delhi. The learned District & Sessions Judge vide
common judgment and order dated 7th October, 2016 dismissed all
the four revisions petitions and directed the learned Trial Court to
complete the trial expeditiously.
13. Against the said impugned order dated 7th October, 2016,
passed by the learned District & Sessions Judge, Sewak Balkishna
Gupta filed Crl.M.C.4542/2016, Ram Phal Bansal filed Crl.M.C.
233/2017, Rajnish Goenka filed Crl.M.C. 317/2017 and Kamal
Gaind filed Crl.M.C. 4544/2016 in this Court, assailing the
dismissal of their revision petitions under Section 482 Cr.P.C. read
with Article 227 of Constitution of India and for setting aside the
order of framing of charge dated 6th May, 2014 and 17th May, 2014
passed by the learned Chief Metropolitan Magistrate in FIR No.
CRL.M.C.4542/2016, CRL.M.C.223/2017, CRL.M.C.317/2017, CRL.M.C.4544/2016
119/97 and the order dated 7th October, 2016 passed by the learned
District and Sessions Judge.
Hence the present four petitions.
14. The learned senior counsel appearing on behalf of the
petitioners has submitted that the present petition has been filed
under Section 482 Cr.P.C for setting aside impugned order dated 7th
October, 2016. He has further submitted that the alleged incident is
dated 2nd March, 1997 and FIR was registered on 10th March, 1997
for offence under Section 448 IPC. However, after investigation
charge sheet was filed on 17th March, 2006 for offences punishable
under Sections 201/420/448/468/471/120-B IPC against seven
accused persons and the cognizance was taken by the learned
Magistrate on 15th September, 2006 against six accused persons for
offences under Sections 420/448/468/471/120-B IPC. However, the
learned Magistrate had not taken cognizance against accused
Ramphal Bansal, Senior Advocate. The respondent
no.2/complainant filed Revision Petition No. 832/2006 under
Section 397 read with Sections 401/403/482 Cr.P.C., wherein it was
directed that Ramphal be also summoned and therefore he was also
summoned. Out of the seven accused persons, three died and four
are before this Court challenging the order of framing charge
against them.
15. The learned senior counsel appearing on behalf of the
petitioners has submitted that the charge framed is bad in law.
CRL.M.C.4542/2016, CRL.M.C.223/2017, CRL.M.C.317/2017, CRL.M.C.4544/2016
16. The learned senior counsel has further submitted that the
learned Magistrate failed to take notice of the fact that cognizance
in this case was taken after almost 8 years whereas it should have
been taken within 3 years because the charges were framed under
Sections 201/448/471/120-B/34 IPC against two accused persons
and all offences are punishable up to maximum of two years.
However, charge was not framed under Sections 468/420 for want
of evidence and the same is not challenged by the State.
17. He has further submitted that the learned Magistrate while
framing the charge has not gone into the factum of limitation to
which he should have satisfied himself that the cognizance taken is
within the period of limitation for the offences for which he has
framed charge. Until and unless this factum is made clear the charge
framed is bad in law and it cannot sustain.
18. He has further submitted that though Sections 468 and 420 IPC
at the time of taking cognizance were there in existence but mere
factum of existence of Sections 468 and 420 IPC in the charge sheet
ipso facto does not help the prosecution to defeat the law of
limitation for taking cognizance.
19. The learned senior counsel on behalf of the petitioners has
submitted that even if the contentions of the learned Additional
Public Prosecutor are to be accepted still it is beyond three years.
Registration of FIR was on 10th March, 1997 and the same was
quashed by this Court on 16th October, 1998 and it was restored by
Hon'ble Supreme Court on 19th August, 2004 and the charge sheet
was filed on 17th March, 2006.
CRL.M.C.4542/2016, CRL.M.C.223/2017, CRL.M.C.317/2017, CRL.M.C.4544/2016
20. The learned senior counsel in support of his arguments has
relied upon the following judgments:-
i. Arun Vyas & Anr. v. Anita Vyas, 1999 SCC CRI 629.
ii. C.H. Satyanarayan v. State, 2012 SCC OnLine Del
1412.
iii. Vipin Kalra v. State, 2001 SCC OnLine Del 1240.
iv. Mam Chand & Ors. v. State, 1998 SCC OnLine Del
v. Surinder Kumar v. State, 64 (1996) DLT 620.
vi. M.K. Razdan & Ors. State, 2008 IV AD (Delhi) 73.
vii. Shashi Lata Khanna v. State of Delhi & Others, 121
(2005) DLT 522.
21. Per contra, the learned Additional Public Prosecutor on behalf
of the State has submitted that the issue in question has already been
decided by this Court in W.P. Crl. 1379/2013 and W.P.
Crl.1502/2013 filed by the petitioners namely Kamal Gaind and
Ram Phal Bansal respectively, whereby this Court vide order dated
30th September, 2013 has observed that criminal proceeding cannot
be quashed merely on the ground of delay. The same has been
upheld by the Hon'ble Supreme Court vide its order dated 13 th
February, 2015.
22. The learned Additional Public Prosecutor has pointed out that
the FIR No. 119 of 1997 was quashed by this Court in Crl.W.P.
3/1998 on 16th October, 1998 and thereafter the Hon'ble Supreme
CRL.M.C.4542/2016, CRL.M.C.223/2017, CRL.M.C.317/2017, CRL.M.C.4544/2016
Court directed to reopen the case on 19th August, 2004 and the
charge sheet was filed on 17th March, 2006.
23. Therefore, when the FIR itself was quashed, there was no
question of filing charge sheet. However, since Hon'ble Supreme
Court has reopened the FIR on 19th August, 2004, fresh limitation
started by setting aside the order passed by High Court of Delhi.
24. The learned Additional Public Prosecutor in support of his
arguments has placed reliance on the following judgments:
i. Ganesh Narayan Hagde v. S. Bangarappa, (1995) 4
SCC 41.
ii. Jagdish Ram v. State of Rajasthan & Another, (2004) 4
SCC 432.
25. I have given my thoughtful consideration to the submissions
made by the learned counsel for both the parties and have also perused
the material on record.
26. The whole dispute hinges around whether the learned
Metropolitan Magistrate has taken the cognizance within the period of
limitation and whether there is sufficient material evidence on record
to proceed with the matter in accordance with law?
The answer is: YES.
27. It is an admitted fact emerging on record that the FIR No. 119
of 1997 was registered on 10th March, 1997, the said FIR was
challenged in the High Court of Delhi by the petitioners and the same
CRL.M.C.4542/2016, CRL.M.C.223/2017, CRL.M.C.317/2017, CRL.M.C.4544/2016
was quashed by this Court vide its order dated 16 th October, 1998 and
the relevant paragraph is reproduced hereunder for ready reference:
"IN THE HIGH COURT OF DELHI
CRIMINAL WRIT NO. 3/1998
Date of decision: October 16, 1998
Shri Prithvi Raj and others through Mr.R.P.Bansal
Senior Advocate with Mr.Rajeev Awasthi, Advocates
Versus
States (NCT) of Delhi through Mr.S.S.Gandhi for the
State and Mr.R.M.Bagai for the Intervener.
....Consequently, the petition is allowed. FIR and
proceedings taken thereunder are quashed. However, it
is made clear that observations made while deciding this
petition will not prejudice any of the parties in any
pending litigation or other proceedings."
28. The respondent no.2-Jitender Nath aggrieved from the quashing
of FIR No. 119 of 1997 preferred a Criminal Appeal No.561 of 1999
in the Hon'ble Supreme Court. The relevant order of the Supreme
Court in this context is reproduced to show the position of law
between the parties as on 19th August, 2004:
"IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.561 OF 1999
Jitendra Nath ...Appellant(S)
Versus
CRL.M.C.4542/2016, CRL.M.C.223/2017, CRL.M.C.317/2017, CRL.M.C.4544/2016
State (NCT of Delhi) and Ors.
...Respondent (S)
ORDER
Heard Learned Senior Counsel for the parties.
This appeal by special leave has been filed challenging
order dated 16th October, 1998 passed in Criminal Writ
Petition No.3 of 1998 by the Delhi High Court, whereby
First Information Report No.119 of 1997, instituted at
Chitaranjan Park Police Station, under Section 448, 420,
468 and 471 read with Section 120 B of the Indian Penal
Code, has been quashed. In the facts and circumstances
of the case, we are of the view that it was got a fit case
where the High Court should have interfered with the
investigation and quashed the First Information Report.
Accordingly, the appeal is allowed, impugned order
passed by the High Court is set aside and the writ
petition is dismissed. The investigation shall now
proceed further in accordance with law and upon
completion thereof, final form shall be submitted, which
may be either in the shape of charge sheet or final
report, as the case may be, on receipt whereof, the
learned Magistrate shall apply his mind and proceed in
accordance with law. It is made clear that if upon
submission of final form by the police, cognizance is
taken and accused persons are summoned, it would be
open to them to move the High Court for quashing their
prosecution and in case such an application is filed, the
same shall be considered on its own merits. It is clarified
that we should not be misunderstood to have expressed
any opinion one way or the other on merits of the case.
sd/-
B.N.Aggarwal J.
sd/-
H.K.Sema J.
CRL.M.C.4542/2016, CRL.M.C.223/2017, CRL.M.C.317/2017, CRL.M.C.4544/2016
New Delhi
August 19, 2004"
29. After the completion of investigation, the charge sheet was
admittedly filed on 17th March, 2006, which comes within the period
of three years.
30. In the instant petition, the learned Metropolitan Magistrate took
cognizance of the offences punishable under Sections
420/448/468/471/120-B and issued summons against all the accused
persons on 15th September, 2006. Therefore, the contention of the
learned senior counsel of the petitioner that the FIR was registered in
the year 1997 and offences are punishable up to maximum of two
years and the charge sheet has been filed beyond the period of three
years is without force as the Apex Court has cleared the position of
law on this point on 19th August, 2004.
31. So far, the evidence to proceed with the matter is concerned, the
FIR No. 119 of 1997 was registered on the basis of a complaint made
by the respondent no.2/ complainant on 3rd March, 1997 to the Police
Station Chitranjan Park, New Delhi alleging that the accused persons
namely B.K. Rana, P.R. Gulati, Rajnish Goenka and Kamal Gaind in
furtherance of criminal conspiracy trespassed into the office of
Sanatan Dharam Greater Kailash-II on 2nd March, 1997, in order to
grab the administration of the said Sabha and snatched the keys from
the respondent no.2/ complainant (President of said Sabha) and took
illegal possession of gullak/chest. It was also alleged that all the
accused persons forged three documents i.e.:
CRL.M.C.4542/2016, CRL.M.C.223/2017, CRL.M.C.317/2017, CRL.M.C.4544/2016
i. Requisition for holding Extraordinary General Body
Meeting dated 3rd January, 1997 purportedly signed
by 31 signatories;
ii. Notice dated 4th February, 1997 signed by 32
persons for attending the Extraordinary General
Body Meeting on 2nd March, 1997 and
iii. Attendance register of the Extraordinary General
Body Meeting dated 2nd March, 1997 purportedly
signed by 62 persons.
32. It has been further alleged that to justify their act, the petitioners
used the above mentioned documents in litigation before High Court
and filed in the office of Registrar of Societies on 5th March, 1997 by
Rajnish Goenka and the petitioner/accused Advocate Ram Phal Bansal
assisted the accused persons. It has also been alleged that the accused
persons opened a new account in the State Bank of Indore, GK-II in
the name of Sanatan Dharama Greater Kailash-II Sabha and cheated
the contributors, whose money was deposited in new account.
Moreover, it has been alleged that Advocate Ram Phal Bansal, who
represented the accused persons in this Court had given an undertaking
on behalf of his clients/petitioners that the forged documents would be
produced for the purpose of investigation, but the same were alleged to
be destroyed by him in conspiracy with co-accused and he gave an
excuse that these documents have been misplaced in his office.
33. During the investigation, it transpired that as per the
Memorandum of Articles and Association of Sanatan Dharam GK-II
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Sabha, "to call a General Body Meeting, 25 life members of the Sabha
have to sign a requisition and send the same to General Secretary",
however, in the Requisition dated 3rd January, 1997, which is
purported to have been signed by 31 members/signatories, most of the
signatories have denied their signatures in the statement given under
Section 161 Cr.P.C. Moreover, Sh.S.M. Aggarwal, the then General
Secretary of the Sabha has also denied receiving any such requisition.
34. The statement of witnesses under Section 161 Cr.P.C. of Tek
Bahadur, Shiv Narain, Sudershan Kumar Chopra and Tilak Singh
revealed that on 2nd March, 1997, the accused persons Rajnish
Goenka, B.K. Rana, S.R. Chanan and P.R. Gulati entered into the
premises of Sanatan Dharam Greater Kailash-II Sabha and snatched
the keys and this way grabbed the seat and encroached the premises of
Sanatan Dharam Greater Kailash-II Sabha.
35. On the basis of abovementioned evidence, the investigating
agency filed its charge sheet on 17th March, 2006 under Sections
201/420/448/468/471/120-B of IPC against all the seven accused
persons namely Prithvi Raj Gulati, Sukhdev Raj, Kamal Gaind,
Sewak Balkishan Gupta, B. K. Rana, Rajnish Goenka and Ram
Phal Bansal. The accused persons Prithvi Raj Gulati, Sukhdev Raj
and B. K. Rana died during the pendency of this case.
36. The written complaint and statement of witnesses under Section
161 Cr.P.C. would be appreciated during the trial. At this stage, in
presence of the complaint dated 3rd March, 1997 and statement of
witnesses i.e. Jitender Nath, S.M. Aggrawal, Tek Bahadur, Shiv
Narain, Sudershan Kumar Chopra and Tilak Singh etc. recorded under
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Section 161 Cr.P.C., it cannot be said that there is no sufficient
evidence to proceed with the matter.
37. Consequently, the finding of Court below that, there is prima
facie case made out against accused Ram Phal Bansal under Sections
201/120-B/34 IPC, a prima facie case under Sections 471/201/120-
B/34 IPC made out against accused Sewak Bal Kishan Gupta and a
prima facie case made out against accused persons Rajnish Goenka
and Kamal Gaind under Sections 448/471/201/120-B/34 requires no
interference. In this regard, the following observation of the Hon'ble
Supreme Court in the case of Hem Chand v. State of Jharkhand, AIR
2008 SC 1903, are relevant:
"The Court at the stage of framing charge
exercises a limited jurisdiction. It would only have to
see as to whether a prima facie case has been made
out. Whether a case of probable conviction for
commission of an offence has been made out on the
basis of the materials found during investigation
should be the concern of the Court. It, at that stage,
would not delve deep into the matter for the purpose of
appreciation of evidence. It would ordinarily not
consider as to whether the accused would be able to
establish his defence, if any. "
38. In view of the aforesaid reasons and circumstances in the
present case and in the light of the abovementioned caselaw, I do not
find it a fit case to invoke the powers under Sections 482 Cr.P.C.
39. Consequently, all the four petitions are dismissed and disposed
of in the above terms. All the pending applications (if any) are also
disposed of.
CRL.M.C.4542/2016, CRL.M.C.223/2017, CRL.M.C.317/2017, CRL.M.C.4544/2016
40. The original order be placed in Crl. M.C.4542/2016 and the
copies may be placed in Crl. M.C. 223/2017, Crl.M.C. 317/2017 and
Crl.M.C. 4544/2016.
41. Lower Court Record be sent back forthwith along with one copy
of this judgment to the concerned Court(s).
No order as to Costs.
I.S.MEHTA, J
DECEMBER 01, 2017
CRL.M.C.4542/2016, CRL.M.C.223/2017, CRL.M.C.317/2017, CRL.M.C.4544/2016
