Delhi High Court
Parmod Gupta vs State & Anr on 29 February, 2024
Author: Sudhir Kumar Jain
Bench: Sudhir Kumar Jain
$~
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Reserved on: February 14, 2024
Decided on: February 29, 2024
+ CRL.M.C. 902/2019 & CRL.M.A. 3604/2019
PURAN MAL GUPTA
..... Petitioner
Through: Mr. J.K. Sharma, Advocate
V
STATE & ANR
..... Respondents
Through:
Mr. Utkarsh, APP for
State/R-1 with SI Ramesh
Kumar, P.S. Lodhi Colony
Mr. Havish Katyal and
Mr. Vardaan Gupta,
Advocates for R-2
+ CRL.M.C. 1278/2019 & CRL.M.A. 5075/2019
PARMOD GUPTA
..... Petitioner
Through: Mr. J.K. Sharma, Advocate
with petitioner in person
V
STATE & ANR ..... Respondents
Through: Mr. Utkarsh, APP for
State/R-1 with SI Ramesh
Signature Not Verified
Digitally Signed
By:NIDHI
Signing Date:01.03.2024 CRL.M.C. 1278/2019 & CRL.M.C. 902/2019 Page 1
14:56:48
Kumar, P.S. Lodhi Colony
Mr. Havish Katyal and
Mr. Vardaan Gupta,
Advocates for R-2.
CORAM
HON'BLE DR. JUSTICE SUDHIR KUMAR JAIN
JUDGMENT
1. The present petitions are filed under section 482 of the Code of
Criminal Procedure, 1973 (hereinafter referred to as "the Code") for
quashing of the order dated 07.01.2019 (hereinafter referred to as
"the impugned order") passed by the court of Sh. Sandeep Yadav,
Additional Sessions Judge-02, South East, Saket (hereinafter referred
to as "the revisional court") in Criminal Revision bearing no
204830 / 2016 titled as Pradeep Sethi V State & others.
2. The factual background of the case is that Pradeep Sethi/the
respondent no 2 filed a complaint under section 156(3) of the Code
titled as Predeep Sethi V Puran Mal Gupta & others against Puran
Mal Gupta (petitioner in Crl. MC No. 902/2019 and hereinafter
referred to as "Puran Mal Gupta"), Pramod Gupta (petitioner in
Crl. MC No 1278/2019 and hereinafter referred to as "Pramod
Gupta"), Usha Rani (mother of the respondent no 2, Ravi Kant Sethi
and Rajinder Sethi (brothers of the respondent no 2) and Nafeez. The
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respondent no 2 alleged that the respondent no 2 was occupant of
shop cum residence bearing no 3, Main Market, Lodhi Colony, New
Delhi (hereinafter referred to as "the premise in question") which
was allotted to A. P. Sethi, father of the respondent no 2 as licensee.
Puran Mal Gupta and Pramod Gupta are in illegal possession of the
premise in question. The respondent no 2 on 21.02.2005 at about
08:00 am was asked by Sanjeev Kaushal, one of the relatives of the
respondent no 2 to visit the premise in question. The respondent no 2
immediately rushed to the premise in question and noticed hole in the
back door of the premise in question. Rajinder Kumar Sethi was
found standing near the stairs and Vipin Kaushal, one if the relatives
of Rajinder Sethi was bringing household articles from the first floor
to the ground floor. Nafeez, who was known to Ravi Kant Sethi and
Rajinder Sethi, was also found present there. The respondent no 2
came back to his place. On 22.02.2005, the respondent no 2 along
with his wife went to the premise in question to conduct routine
business but he was restrained by the Usha Rani, Ravi Kant Sethi and
Rajinder Sethi to enter into premise in question as locks were put on
front and rear gates of the premise in question. The respondent no 2
Signing Date:01.03.2024 CRL.M.C. 1278/2019 & CRL.M.C. 902/2019 Page 3
reported matter to the local police but the local police did not take
any action and also threatened the respondent no 2 to implicate in
false case. The respondent no 2 in evening of 28.02.2005 was
dispossessed from the premise in question by abovementioned
persons including Puran Mal Gupta and Pramod Gupta and they also
removed various articles which were lying in both floors of the
premise in question. The respondent no 2 also made complaints to
various authorities and subsequent reminders. The respondent no 2
being aggrieved filed the present complaint. The court of
Metropolitan Magistrate, South-East, Saket vide order dated
11.04.2008 directed concerned SHO to register FIR against proposed
accused by observing that cognizable offences are made out against
the proposed accused. Accordingly FIR bearing no 0099/2008 was
got registered at police station Lodhi Colony under section 379 IPC.
The charge sheet after completion of investigation was filed against
Puran Mal Gupta and Pramod Gupta for offences punishable under
sections 380/120B/448 IPC. However no sufficient incriminating
material could be collected against Usha Rani, Rani Kant Sethi,
Rajinder Kumar Sethi and Nafeez.
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3. The court of Sh. Ravindra Kumar Pandey, Metropolitan
Magistrate-01, South-East, Saket (hereinafter referred to as "the
trial court") vide order on charge dated 16.07.2016 discharged
Puran Mal Gupta and Pramod Gupta for the offences punishable
under sections 380/120B/448 IPC.
4. The respondent no 2 being aggrieved from order on charge dated
16.07.2016 filed criminal revision bearing no 204830/16 titled as
Pramod Sethi V State & others which was decided by the
revisional court and the revisional court vide impugned order set
aside order on charge dated 16.07.2016. The relevant portion of the
impugned order is verbatim reproduced as under:-
9. Both the respondents were discharged U/s. 448 IPC on
the premise that at the time of incident Smt. Usha Rani was
licencee of the premises and she was having authority to
sub-licence the premises; the petitioner was not the licence
holder of the premises, so even if both the respondents
occupied the premises at the instance of Smt. Usha Rani,
their occupation of the premises cannot be termed as
criminal trespass as defined U/s. 441 IPC. There was no
material before the Ld. MM-01 to come to the conclusion
that Smt. Usha Rani being licencee had authority to sub-
licence the premises to the respondents. The crucial
document in this regard is the information dated 09.04.2009
furnished by New Delhi Municipal Corporation to the SHO
PS Lodhi Colony. As per this information the shop is still
under the occupation of the respondents and their case for
revocation of licence/allotment and transfer is still pending
Signing Date:01.03.2024 CRL.M.C. 1278/2019 & CRL.M.C. 902/2019 Page 5
with NDMC considering the status-quo orders as well as
the pending litigation. SHO PS Lodhi Colony was further
informed by NDMC through this letter that the present
occupants will continue to be deemed as unauthorized
occupant till their pending request is finalized. The
information provided in the letter dated 9.42009 by the
NDMC to the SHO PS Lodhi Colony was sufficient to
frame the charge U/s 448 IPG against the respondents. The
witnesses namely Rajeev Mittal and Vinod Kumar Goel
were examined during the investigation have stated that the
petitioner has been practicing astrology from shop No.3,
Main Market, Lodhi Colony. The factual position is on
today is that the petitioner is not in possession of the said
shop, hence the respondents who are in unauthorized
possession of the shop bearing No. 3, Main Market, Lodhi
Colony as per information provided by NDMC to SHO PS
Lodhi Colony are liable to be charged U/s. 448 IPC.
10. However, there was no material before the Ld.
Magistrate to frame the charge of conspiracy against the
respondents. Accordingly, the impugned order dated
16.07.2016 is set aside and revision petition is disposed of
with direction to the trial court to frame charge U/s. 448
IPC against both the respondents i.e. 2 & 3 namely Pooran
Mal Gupta and Pramod Gupta. The trial court is further
directed to frame charge U/s. 380 IPC against respondent
No.3 Pramod Gupta only.
5. The petitioners Puran Mal Gupta and Pramod Gupta being
aggrieved by the impugned order filed the present petitions to
challenge the impugned order dated 07.01.2019. The Puran Mal
Gupta and Pramod Gupta pleaded that A.P. Sethi, father of the
respondent no 2 was allotted premise in question on license by New
Signing Date:01.03.2024 CRL.M.C. 1278/2019 & CRL.M.C. 902/2019 Page 6
Delhi Municipal Corporation (hereinafter referred to as "NDMC").
The premise in question was transferred in name of Usha Rani Sethi
(mother of the respondent no 2) after demise of A. P. Sethi. Usha
Rani Sethi on 16.09.2004 entered into a partnership vide partnership
deed with Puran Mal Gupta and Pramod Gupta and partnership firm
was substituted in the records of NDMC. Usha Rani Sethi in
December 2004 resigned from the partnership and intimation of the
dissolution was given to the concerned authority. Puran Mal Gupta
and Pramod Gupta challenged impugned order primarily on the
grounds that the revisional court has failed to appreciate that
regularizing of the allotment of the premise in question in favour of
Puran Mal Gupta and Pramod Gupta is still pending before the
NDMC. NDMC opined Puran Mal Gupta and Pramod Gupta to be
unauthorized occupants in the premise in question till the disposal of
application for regularisation of the premise in question. Puran Mal
Gupta and Pramod Gupta were brought into the premise in question
by Usha Rani Sethi who was admittedly the licensee in respect of the
premise in question. A civil dispute is pending between the
concerned parties in respect of premise in question. The revisional
Signing Date:01.03.2024 CRL.M.C. 1278/2019 & CRL.M.C. 902/2019 Page 7
court did not appreciate the distinction between an unauthorized
occupant whose possession is capable of being regularized and a
person who commits the offence of criminal trespass. The impugned
order was passed in mechanical manner while misinterpreting the
documents filed along with the charge sheet. Puran Mal Gupta and
Pramod Gupta were treated unequally as the family of the respondent
no 2 were not summoned. The respondent no 2 did not have any
locus standi to file the present complaint. Usha Rani Sethi who was
having possessory rights over the premise in question by virtue of
license from the NDMC allowed Puran Mal Gupta and Pramod
Gupta to use the premise in question. The respondent no 2 never
resided in the premise in question. Puran Mal Gupta and Pramod
Gupta prayed that the impugned order be set aside.
6. The respondent no 1/State filed the Status Report wherein stated
that it was revealed during investigation that the premise in question
is a licensee shop allotted in the name of Usha Rani Sethi who is
stated to be mother of the respondent no 2. The respondent no 2 was
practicing astrology from the premise in question till the premise in
question was unauthorized occupied by Puran Mal Gupta and Pramod
Signing Date:01.03.2024 CRL.M.C. 1278/2019 & CRL.M.C. 902/2019 Page 8
Gupta. NDMC termed Puran Mal Gupta and Pramod Gupta as
unauthorised occupants in respect of the premise in question. No
sufficient incriminating material could be collected during
investigation against Rajinder Sethi, Ravi Kant Sethi, Usha Rani
Sethi and Nafees.
6.1 NDMC in reply to queries in FIR no 0099/2008 vide letter D-
1012/Estate dated 09.04.2009 regarding legal status of
ownership/possession in respect of the premise in question responded
that the premise in question was allotted to Anand Prakash
Sethi (A. P. Sethi) on 14.11.1952 vide Resolution no 156 dated
08.10.1952 for running doctor clinic. The premise in question after
death of Anand Prahash Sethi was allotted to Usha Rani Sethi on
30.03.1966 on legal heir basis as per Reso. No. 53 dated 14.10.1966.
Usha Rani Sethi entered into partnership deed with Puran Mal Gupta
and Pramod Gupta on 16.09.2004 which was subsequently dissolved
on 29.12.2004. The orders of cancellation were issued on 07.11.2005
due to carrying out certain types of work. The premise in question is
still occupied by Puran Mal Gupta and Pramod Gupta. The case for
revocation of licence/allotment is still pending with NDMC. It was
Signing Date:01.03.2024 CRL.M.C. 1278/2019 & CRL.M.C. 902/2019 Page 9
also informed that NOC of Rajinder Sethi dated 14.06.1966 in favour
of Usha Rani Sethi was also submitted and thereafter Usha Rani Sethi
also submitted NOC dated 29.12.2004 in favour of Puran Mal Gupta
and Pramod Gupta. It was further submitted that the premise in
question is still in possession of Puran Mal Gupta and Pramod Gupta.
6.2 The respondent no1/State filed Status Report in the court of Sh.
Sanjeev Kumar, Patiala House Courts wherein stated that it was
revealed during investigation that the respondent no 2 used to reside
in the premise in question along with wife, mother and brother till
December, 1999 and thereafter moved to house of Rajinder Sethi on
rent agreement but left some of the articles in the premise in question.
It was also revealed during investigation of Rajinder Kumar Sethi
that Usha Rani Sethi handed over possession of the premise in
dispute to Puran Mal Gupta and Pramod Gupta on 21.02.2005. The
respondent no 2 in complaint also mentioned about registration
number of two trucks which were allegedly used in commission of
theft. It was revealed from statement of truck owner that his truck
was hired for purpose of transportation of house hold goods and
articles from premise in question but driver of the truck who actually
Signing Date:01.03.2024 CRL.M.C. 1278/2019 & CRL.M.C. 902/2019 Page 10
transported the goods could not be traced. The articles of the
respondent no 2 were stated to be lying in the premise in question
when Usha Rani Sethi and Rajinder Kumar Sethi disappeared from
the premise in question.
7. The respondent no 2 filed replies to the petitions filed by the
Puran Mal Gupta and Pramod Gupta. The respondent no 2 stated that
premise in question is actually owned by NDMC but was allotted to
his father as licensee in the year 1952 for running/operating medical
shop or activities related to medical facilities. The premise in
question was in actual physical possession of A.P. Sethi till his
demise. Usha Rani Sethi after demise of A. P. Sethi applied for
transfer of license in her favour on behalf of legal heirs of A. P. Sethi.
The premise in question cannot be sold and can only be transferred
by NDMC as per their bylaws. Usha Rani Sethi was not having right,
title or interest in the premise in question which can be transferred to
the Puran Mal Gupta and Pramod Gupta who made a fraudulent
transaction with Usha Rani Sethi in respect of premise in question
and had taken the possession from the respondent no 2 in illegal
Signing Date:01.03.2024 CRL.M.C. 1278/2019 & CRL.M.C. 902/2019 Page 11
manner. NDMC already stated that Puran Mal Gupta and Pramod
Gupta are unauthorised occupants in the premise in question.
7.1 The respondent no 2 further stated that FIR bearing no 0099/2008
was got registered. Puran Mal Gupta and Pramod Gupta were found
to be guilty of forcibly removing the goods/article/belongings of the
respondent no 2 from the premise in question in active connivance of
Usha Rani Sethi and others. The revisional court has considered all
relevant facts at time of passing impugned order. Puran Mal Gupta
and Pramod Gupta had occupied the premise in question in illegal
manner after throwing out the respondent no 2 who was in actual
physical possession of the premise in question. NDMC did not allow
the transfer of the premise in question in any manner and cannot
permit change in use of premise in question. Puran Mal Gupta and
Pramod Gupta entered into partnership business with Usha Rani Sethi
on 16.09.2004 and subsequent dissolution deed dated 29.12.2004
clearly reflects the presence of the respondent no 2 in the premise in
question. The respondent no 2 also raised other contentions.
8. It is reflecting that the premise in question was allotted to A. P.
Sethi as a licensee in the year 1952 for medical activities who
Signing Date:01.03.2024 CRL.M.C. 1278/2019 & CRL.M.C. 902/2019 Page 12
remained in the possession of the premise in question till his death.
Thereafter, the premise in question was transferred as a licencee in
favour of Usha Rani Sethi by NDMC. Usha Rani Sethi entered into a
partnership with Puran Mal Gupta and Pramod Gupta on 16.09.2004
and Usha Rani Sethi in the month of December, 2004 resigned from
the partnership and thereafter, Puran Mal Gupta and Pramod Gupta
became partners in the said partnership deed. Puran Mal Gupta and
Pramod Gupta are stated to be in possession of the premise in
question by virtue of partnership firm created on 16.09.2004. Puran
Mal Gupta and Pramod Gupta have not been granted licensee in
respect of the premise in question by NDMC and as per the NDMC
Puran Mal Gupta and Pramod Gupta are unauthorized occupants in
respect of the premise in question. The respondent no 2 is also
claiming his right, title and interest in respect of the premise in
question and a civil suit is also stated to be pending between the
concerned parties is respect of the premise in question. The
respondent no 2 claimed that on 28.02.2005, he was dispossessed
from the premise in question by Puran Mal Gupta, Pramod Gupta,
Usha Rani Sethi, Ravi Kant Sethi Rajinder Sethi and Nafees. On
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21.02.2005 his articles which were stated to be lying in the premise
in question were removed by the above said persons. The respondent
no 2 was stated to be doing astrology consultation in the premise in
dispute till December 1999 and thereafter, he moved to the house of
Rajinder Sethi on rent agreement. The possession of the premise in
question was stated to be delivered to Puran Mal Gupta and Pramod
Gupta on 21.02.2005. After conclusion of the investigation the
charge sheet was filed for the offences punishable under sections
448/380/120B IPC wherein Puran Mal Gupta and Pramod Gupta
were implicated as accused and Usha Rani Sethi, Ravi Kant Sethi,
Rajinder Sethi and Nafees were not charged for any offence.
9. The counsel for Puran Mal Gupta and Pramod Gupta argued that
no offence punishable under sections 448/380 IPC has been made out
against Puran Mal Gupta and Pramod Gupta and Puran Mal Gupta
and Pramod Gupta were put into possession in respect of the premise
in question by Usha Rani Sethi as reflected from the letter dated
09.04.2009 issued by NDMC. It is further argued that Usha Rani
Sethi who was the licensee is respect of the premise in question, has
put Puran Mal Gupta and Pramod Gupta in possession of the premise
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in dispute on the basis of partnership firm, and as such Puran Mal
Gupta and Pramod Gupta cannot be said to be the unauthorized
occupants. It is also the admitted case of NDMC that the premise in
question could not be regularized in favour of Puran Mal Gupta and
Pramod Gupta due to the ongoing litigation. There is also no
evidence that Puran Mal Gupta and Pramod Gupta have removed
articles of the respondent no 2 from the premise in question in the
five trucks. The revisional court has passed the non-speaking order as
no offence is made out against Puran Mal Gupta and Pramod Gupta.
The impugned order is liable to be set aside.
9.1 The Additional Public Prosecutor for the respondent no1/State
argued that, the prosecution is able to establish prima facie case
against Puran Mal Gupta and Pramod Gupta for offences under
sections 380/448 IPC. The impugned order was passed by the
revisional court after proper appreciation of the material collected
during evidence and cannot be set aside. The present petitions are
liable to be dismissed.
9.2 The counsel for the respondent no. 2 argued that the respondent
no. 2 was dispossessed from the premise in question on 28.02.2005
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by Puran Mal Gupta, Pramod Gupta, Usha Rani Sethi, Ravi Kant
Sethi and Rajender Kumar Sethi. The trial court has discharged Puran
Mal Gupta and Pramod Gupta for offences punishable under sections
380/448 IPC, however, the revisional court set aside the order passed
by the trial court on charge and directed for framing of the charges
for offences punishable under sections 380/448 IPC against Puran
Mal Gupta and Pramod Gupta. Usha Rani Sethi was not having any
right title or interest in the premise in question and as such she could
not have transferred any right, title or interest in favour of Puran Mal
Gupta and Pramod Gupta by virtue of partnership which is a sham
transaction. Puran Mal Gupta and Pramod Gupta as per NDMC are
unauthorized occupants in respect of the premise in question. The
respondent no. 2 was thrown out of the premise in question illegally
and by use of force. The premise in question was allotted to A. P.
Sethi only for running the medical activities and the premise in
question cannot be used for any other purpose and the petitions are
liable to be dismissed.
10. As mentioned hereinabove, Usha Rani Sethi became the license
holder in respect of the premise in question after the death of the
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original allotee as licensee i.e. A.P. Sethi. The respondent no. 2 was
one of the legal heirs of A. P. Sethi and was never allotted the
premise in question and his name was also never entered as a licensee
in the records of NDMC. Puran Mal Gupta and Pramod Gupta were
brought into the possession of the premise question by the lawful
allotee i.e. Usha Rani Sethi by virtie of the partnership deed dated
16.09.2004, it is also the stand of NDMC that Puran Mal Gupta and
Pramod Gupta are in possession of the premise in question although
as an unauthorized occupant as their name has not been recorded with
NDMC as lawful allottee. As per police investigation as referred
hereinabove, the respondent no 2 remained in occupation of the
premise in question till December, 1999 and thereafter, he shifted to
the house of Rajinder Sethi on rent agreement. There is no material
on record which can reflect that on the date of the alleged incident i.e.
28.02.2005 the respondent no. 2 was in actual physical possession,
use of the occupation of the premise in question. It may be true that
the some of the articles as detailed in the complaint made by the
respondent no. 2 were lying in the premise in question but there is no
evidence or material stated to have been collected during
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investigation that Puran Mal Gupta and Pramod Gupta have removed
those articles. It is for NDMC to take decision whether the premise in
question can be lawfully allotted in favour of Puran Mal Gupta and
Pramod Gupta according to the bylaws, rules and regulations.
10.1 The trial court has rightly observed in order on charge dated
16.07.2016 that on 28.02.2005, Puran Mal Gupta and Pramod Gupta
were not present at the spot and no recovery was affected at their
instance. The trail court has also rightly observed that there is no
evidence or material collected during the investigation that the
articles from the premise in question were loaded in trucks at the
instance of Puran Mal Gupta and Pramod Gupta. The trial court on
the basis of reasoning given in the order dated 16.07.2016 has rightly
observed that Puran Mal Gupta and Pramod Gupta were in
occupation of the premise in question at the instance of the lawful
allotee/licensee Usha Rani Sethi and as such it cannot be said that
they have criminally trespassed into the premise in question as per
section 441 IPC. The trial court as such rightly discharged Puran Mal
Gupta and Pramod Gupta for the offence punishable under sections
380/448 IPC.
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10.2 The revisional court was not justified in relying on the statement
of Nand Kishore recorded under section 161 of the Code to opine that
the prima facie case under section 380 IPC is made out against Puran
Mal Gupta and Pramod Gupta. The statement of Nand Kishore
recorded as under section 161 of the Code only reflects that Pramod
Gupta was present at the spot when the goods were allegedly
removed from the premise in question. Even otherwise also, mere
removal of the goods from one premise does not attract the offence
punishable under section 380 IPC. The revisional court was also not
justified while observing that there was no material before the trial
court to come to the conclusion that Usha Rani Sethi being the
licensee had the authority to sub licence the premise in question to
Puran Mal Gupta and Pramod Gupta. The issue whether Usha Rani
Sethi was having any authority to put Puran Mal Gupta and Pramod
Gupta in possession of the premise in question is to be considered by
the allotting authority i.e. NDMC and is not sufficient to charge
Puran Mal Gupta and Pramod Gupta for the offence punishable under
section 448 IPC. Puran Mal Gupta and Pramod Gupta as per the
NDMC may be an unauthorized occupant in respect of the premise in
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question but mere alleged unauthorized occupation is not sufficient to
constitute criminal trespass in respect of the premise in question.
There is a difference between unauthorized occupancy and criminal
trespass. The counsel for the petitioner justified in his arguments that
there is a difference between unauthorized occupant and criminal
trespassing. It is pertinent to mention that a civil suit is also stated to
be pending between the concerned parties in respect of the premise in
question. The revisional court was not justified in holding that Puran
Mal Gupta and Pramod Gupta are liable to be charged for offence
punishable under section 448 IPC. The arguments advanced by the
counsel for the respondent no 2 are without any legal and factual
basis.
10.3 In view of the above discussion, the impugned order cannot
sustain and is liable to be set aside. Accordingly, the impugned order
is set aside and Puran Mal Gupta and Pramod Gupta are discharged
for the offences punishable under sections 380/448 IPC. However, it
is made clear that nothing in this order shall affect the merit of the
civil suit stated to be pending between the parties (particulars no
mentioned in record.)
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11. The present petitions bearing no. CRL.M.C. 1278/2019 &
CRL.M.C. 902/2019 are accordingly allowed and pending
applications, if any, stand disposed of.
DR. SUDHIR KUMAR JAIN
(JUDGE)
FEBRUARY 29, 2024
SK/ABK
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