Final Order 14

Order Details: COPY OF JUDGMENT
Pdf Text: IN THE COURT OF MS. SHEFALI SHARMA,
ADDITTIONAL SESSIONS JUDGE-02, NORTH DISTRICT,
ROHINI COURTS, DELHI
In the matter of:
Criminal Revision No. 271/2023
Yashoda Verma
W/o Late Sh. A.K. Verma
R/o 394, Jhande Wali Gali,
Mandawali Fazalpur, Delhi – 110092.
....Revisionist
Versus
Brijesh Kumar @ Neetu
S/o Sh.Prem Chand
R/o A-1/94, Sanjay Nagar,
Mahendra Park, Delhi – 110033.
Also at:
H.No. D-3/90, Sector – 16,
Rohini, Delhi – 110085.
...Respondent
Date of Institution : 28.08.2023
Conclusion of arguments : 18.07.2024
Date of Order : 18.07.2024
ORDER
1. Present revision petition is preferred by the
revisionist against the order dated 22.07.2023 (hereinafter
referred to as impugned order) passed by ld. MM, North whereby
he has discharge the accused, respondent herein in case FIR No.
489/2016, PS S.P.Badli.
CR No. 271/2023
Yashoda Verma Vs. Brijesh Kumar @ Neetu
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2. Brief facts of the case are that the
complainant/revisionist Smt Yashoda has made a complainant
that she had purchased a plot, M-118, Gali no. 4, khasra no. 449
measuring (30X60) 200 sq. yd. (herein after referred to as
“property in question”) from her brother-in-law Late Shri Om
Parkash on 11/01/2002. The complainant alleged that the accused
Brijesh @ Neetu was doing construction on the said plot without
her consent and committed the offense of Section 448 of IPC.
3. It was argued by ld. Counsel for the revisionist that
the ld. MM without appreciating facts of the case has wrongly
discharged the respondent/accused in the said FIR. That there are
specific allegations against the respondent. It was further argued
that Ld. Trial court failed to appreciate the statement of the
complainant recorded by the IO.
It was further argued that ld. Trial court has failed to
appreciate that at the stage of charge, meticulous examination of
the evidence is not required and only prima facie case is to be
seen.
4. Ld. Counsel for the respondent/accused has
vehemently argued that title of aforesaid property is in favour of
Brijesh @ Neetu and he was in possession of the aforesaid
property for last many years. Ld. Counsel for the accused further
submitted that no offence under section 448 of IPC is made out
in the present matter and that ld. Trial court after giving a
CR No. 271/2023
Yashoda Verma Vs. Brijesh Kumar @ Neetu
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thoughtful consideration of the material on record has rightfully
discharged the accused.
5. Heard. Perused.
6. As regards the powers of Revision U/s 397 Cr.P.C
the Ho'ble Supre Court in the latest judgment dated 17.02.2022 in
the case of Directorate of enforcement Vs. Gagandeep Singh
2022 SCC online Delhi 514 has reiterated the law that:
“the provision of revision in Cr.P.C. suggests that
the court shall limit itself to the findings sentence
or order pass by the subordinate court, against
which the revisionists is seeking relief before the
court concerned and shall not go beyond the
analysis and observations made by the subordinate
court.”
Section 397 Cr.P.C. unequivocally states that the
High Court and Sessions Courts which is exercising its revisional
jurisdiction shall apprise itself solely of the question of
correctness, legality and properity of the order of the subordinate
court.
The Hon'ble Supreme Court in
Directorate of
enforcement Vs. Gagandeep Singh (supra) again emphasised that
“
in its revisional jurisdiction court will not
proceed into the enquiry of the records, documents
and other evidence in consideration before the
Trial Court but shall constarin itself to the findings
of the lower court in the impuged order and to the
question whether there is any patent, illegality,
error apparant on record or incorectness.”
7. During the perusal of the file and impugned order
CR No. 271/2023
Yashoda Verma Vs. Brijesh Kumar @ Neetu
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dated 22.07.2023, it transpires that then SDM Narela has passed
order on 25/02/2009 in favour of complainant with respect to the
possession of aforesaid property, however, the said order was
challenged by accused Brijesh @ Neetu before the Ld. ASJ
Court. Ld. ASJ vide order dated 26/05/2010 has confirmed the
order of SDM Narela. Subsequently, accused challenged the
order dated 26/05/2010 and order dated 25/02/2009 under section
482 of Cr.PC. before Hon'ble Delhi High Court. The said petition
was disposed of by the Hon'ble Delhi High Court vide order
dated 22.11.2012 and it is mention therein that complainant
would implead herself in the civil suit no. 1211/2006 and till the
disposal of the aforesaid suit, order dated 25.02.2009 of SDM as
modified on 14.12.2011 shall remain in force. It is apposite to
mention that IO of the case has mentioned in the chargesheet that
complainant did not implead herself in the Civil suit no.
1211/2006 to the reasons best known to her.
8. Ld. Trial Court has failed to appreciate that the
Civil Suit No. 1211/2006 had been dismissed in default for non
prosecution since the complainant therein was suffering from
brain injury and later on she expired and suit was not decided on
merits.
Ld. Trial Court has also failed to take note of the
fact that a fresh suit for possession, declaration and permanent
injunction had been filed by the revisionist bearing CS No.
59707/2016, which is still pending.
CR No. 271/2023
Yashoda Verma Vs. Brijesh Kumar @ Neetu
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9. Further, reliance is placed upon by the revisionist on
the complaint before DCP/Vigilance vide Ref. No. 80/P/Sec/
DCP/Vig dated 11.03.2016 wherein after due inquiry by teh
vigilance department, it was found that the respondent had
illegally trespassed into the property of the petitioner and
committed the offence of criminal trespass. Further, it was also
found that the police officers of PS S.P. Badli failed to discharge
their duty and helped the respondent for doing illegal activity
thereby departmental inquiry was also called against the police
officers of PS S.P. Badli.
10. At the very outset it is pertinent to note the case law
on the point of charge and the considerations to be kept in mind
for framing charge. It is a settled law that at the stage of charge,
only prima facie case is to be looked into and the court is not to
marshal the evidence and meticulous examination of the material
on record is not required and the court is required to examine the
question only prima facie. In the case of Union of India Vs.
Praful Kumar and Anr. (1979) 3 SCC 76 it was held as under:
“1. that the judge while considering the question
of framing the charges U/s 228 of the Code has
the undoubted power to sift and weigh the
evidence for the limited purpose of finding out
whether or not a prima facie case against the
accused has been made out.
2. where the materials placed before the court
disclose grave suspicion against the accused
which has not been properly explained, the
court will be fully justified in framing a charge
and proceeding with the trial.
CR No. 271/2023
Yashoda Verma Vs. Brijesh Kumar @ Neetu
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3. the test to determine a prima facie case would
naturally depend upon the facts of each case and
it is difficult to lay down a rule of universal
application. By and large, however, if two views
are equally possible and the judge is satisfied
that the evidence produced before him while
giving rise to some suspicion but not grave
suspicion against the accused, he will be fully
within his right to discharge the accused.
4. that in exercising his jurisdiction U/s 227 of
the Code the judge which under the present
Code is a senior and experienced Code cannot
act merely as a post office or a mouth piece of
the prosecution, but has to consider the broad
probabilities of the case, the total effect of the
evidence and the documents produced before
the court, any basic infirmities appearing in the
case and so on. This however does not mean
that the judge should make a roving enquiry into
the pros and corns of the matter and weigh the
evidence as if he was conducting a trial.”
In the case of West Bengal Vs. Anil Kumar (1979)
4 SCC 274 the Hon’ble Supreme Court held that “the standard of
test, proof and judgment which is to be applied finally before
finding the accused guilty or otherwise is not exactly to be
applied at the stage of Section 227 or 228 of the Code….”
From the above discussion it seems well settled that
at the stage of charge court is required to evaluate the material
documents on record with a view to finding out if the facts
emerging there from taken at their face value disclose the
existence of all the ingredients constituting the alleged offence
prima facie.
11. Thus, in view of the dispute between the parties over
CR No. 271/2023
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the land in question, it cannot be said that said property belonged
to Brijesh Kumar @ Neetu, as civil dispute is still subsisting and
as such a finding of the criminal court without any evidence or
finding of the Ld. Civil Court at the initial stage of charge is
unfounded.
12. In view of the above said discussion and
observations, the impugned orders dated 22.07.2023 is set aside
and matter is remanded back to the Ld. Trial Court to re-hear the
arguments on the point of charge, keeping in view the aforesaid
observations. The revision petition is accordingly disposed off as
allowed.
Parties are directed to appear before Ld. Trial Court
on 12.08.2023.
13. It is clarified that nothing stated herein shall
tantamount an expression on the merits of the case.
14. TCR, if any be sent back to the concerned court with
copy of this order.
15. Revision file be consigned to Record Room.
Pronounced in open (SHEFALI SHARMA)
Court on 18.07.2024 ADDITIONAL SESSIONS JUDGE-02,
NORTH DISTRICT,
ROHINI COURTS, DELHI
CR No. 271/2023
Yashoda Verma Vs. Brijesh Kumar @ Neetu
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