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2009 DIGILAW 336 (DEL)

Shamsher Singh v. State

2009-03-27

MOOL CHAND GARG

body2009
Judgment Mool Chand Garg, J. 1. By this common order I shall dispose of the aforesaid two petitions arising out of two cross cases, i.e. arising out of FIR No. 255/2004 under Sections 308/324/506/34 IPC registered at Police Station Ambedkar Nagar and complaint case No. 727/01 dated 01.06.2004 titled as Shamsher Singh v. Satbir Singh & Ors. pending in the Court of Shri Gauram Manan, learned M.M. Patiala House Court, New Delhi. 2. Crl.M.C. 2452-55/2005 has been filed for quashing the chargesheet and all the criminal proceedings emanating there from against the petitioners arising out of FIR No. 255/2004 under Sections 308/324/506/34 IPC registered at Police Station Ambedkar Nagar, Delhi pending in the Court of Shri Brijesh Garg, learned M.M., New Delhi. The petitioners in this case are seeking quashing of FIR on the ground that they have been falsely implicated by the complainant who in fact had got registered the FIR out of mala fide, greed and frustration off ailing in their litigation upon khasra No. 507 and 529 at over a dozen legal forums since 1983. These khasras are the• very plots of land where the occurrence as alleged in the FIR and the chargesheet in the instant case has taken place on the very next day of petitioner No. 1 taking over possession of khasra No. 507 from the court-baliff. The said plots of land are under litigation between the family of the petitioners and the complainant in this case for the last past 22 years. 3. It is submitted that the warrants of possession in respect of the said plots of land were issued by the learned Civil Judge, Delhi on 24.05.2004 and consequently the petitioners were handed over the possession of khasra No. 507 by the court-baliff on 25.05.2004, while the instant FIR is dated 26.05.2004. It would be note-worthy that the possession of khasra No. 529 could not be handed over to petitioner No.1 by the court-baliff on 25.05.2004 for the reason of violent resistance posed by the complainant family. To this effect the petitioner No. 1 filed an application for police aid before the executing court. It would be note-worthy that the possession of khasra No. 529 could not be handed over to petitioner No.1 by the court-baliff on 25.05.2004 for the reason of violent resistance posed by the complainant family. To this effect the petitioner No. 1 filed an application for police aid before the executing court. Such resistance from the complainant family also finds mention in the report filed by the court-baliff before the executing court It is submitted that the complainant at whose instance the FIR was registered has preferred the instant complaint as also another FIR against the petitioners with a motive to harass and extract money from them. 4. It is also submitted that the complainant family succeeded to some extent in extorting money from the petitioners as even after taking possession of the plots in question under directions of the Court of law the petitioners compromised the matter and further paid a sum of Rs. 4lakhs to the complainant family in Suit •No. 427/2003 before this Court. In furtherance thereof the complainant family wrote a letter to the SHO, PS Ambedkar Nagar informing about the compromise of the matter in dispute. However, even after the compromise the complainant family refused to get the criminal proceedings quashed. It is also submitted that the continuous of the proceedings arising out of the aforesaid FIR are misuse of the process of Court and are liable to be quashed. 5. Crl. M.C. 105/2008 is filed for quashing of the order dated 14.08.2007 passed by the learned M.M. by which the learned MM summoned the petitioners as accused in the complaint case filed by respondent No.2 as well as to quash the proceedings arising out of the complaint case bearing No. 727/2001 dated 01.06.2004 pending in the Court of learned MM, Patiala House, New Delhi. 6. In brief the case of the complainant in this case is that on 26.05.2004 respondent No.2 (petitioner in Crl.M.C.2452-55/2005) along with Bijender S/o Nathu Ram, Jai Narayan and Bijerider S/o Bhim Singh went to the site at Khasra No. 529, Village Devli to plough the field and took tractor along with them. 6. In brief the case of the complainant in this case is that on 26.05.2004 respondent No.2 (petitioner in Crl.M.C.2452-55/2005) along with Bijender S/o Nathu Ram, Jai Narayan and Bijerider S/o Bhim Singh went to the site at Khasra No. 529, Village Devli to plough the field and took tractor along with them. It is further alleged by the complainant in his complaint that when they were ploughing the field, respondent No.2 took photographs showing their possession and presence at Khasra No. 529, Village Devli, New Delhi and at about 12 noon the petitioners armed with lathis and pistols came there and started pelting stones on respondent No.2 and his relatives. It is further alleged by the complainant in his complaint that petitioner No. 1 Satbir Singh and petitioner No.9 Lalit came there shouting and hurling abuses upon respondent No.2. Petitioner No.4 Jagbir Singh also came running and abusing. It is further alleged by respondent No.2 in his complaint that petitioner No.1 Satbir Singh took out a pistol and shouted that "AAJ HUM IN HE KABZA LENE KA MAZAA CHAKATE HEIN. AAJ INME SE KOYEE JINDA NAHIN JAYEGA." It is further alleged by the complainant in his complaint that in this the other petitioner entered into the field being Khasra No. 529 and started pelting stones on the vehicles of respondent No.2. It is further alleged by respondent No.2 in his complaint that due to pelting of stones, Toyota Qualis No. DL 9C G0038 and other vehicle Tata Indica No. DL 3C W0056 were damaged. Headlight of the Tractor was also damaged and hijacked the Tractor. It is further alleged by respondent No.2 in his complaint that petitioner No.3 Harbir Singh, petitioner No.5 Jasbir Singh and petitioner No.2 Radhey Shyam were having lathis in their hands. It is further alleged by respondent No.2 in his complaint that petitioner No.3 Harblr Singh and petitioner No. 2 Radhey Shyam gave lathi blows to Bijender S/oNathu Ramu; petitioner No.5 Jasbir and other persons gave lathi blows to Jai Narayan and Shamsher Singh. Petitioner No. 7 Murti Devi and petitioner No.8 Smt. Geeta were continuously pelting stones on respondent No.2 and his relatives and hurled abuses that no one from the party of respondent No.2 should be left alive today. Petitioner No. 7 Murti Devi and petitioner No.8 Smt. Geeta were continuously pelting stones on respondent No.2 and his relatives and hurled abuses that no one from the party of respondent No.2 should be left alive today. It is further alleged by respondent No.2 in his complaint that petitioner No.9 Lalit and his mother petitioner No. 10 herein caught hold of Jai Narain and gave beatings to him. It is further alleged by respondent No.2 in his complaint that respondent No.2 and his relatives were beaten up mercilessly-by the petitioners and Bijender had received fracture on his right hand due to lathi blows given by petitioner No.3 Harbir Singh and petitioner No.2 Radhey Shyam. It is further alleged by respondent No.2 in his complaint that Shamsher Singh i.e. respondent No.2 here was given beatings by petitioner No.1 Satbir Singh and petitioner No.9 Lalit. It is further alleged by respondent No.2 in his complaint that respondent No.2 made a call to PCR, which reached the spot at about 12.40 noon and remained there till the arrival of local police. It is further alleged by respondent No.2 in his complaint that the local police after reaching at the spot did not lodge the complaint and the police officials of P.S. Ambedkar N agar were working in such a manner that they were under some influence. It is further alleged by respondent No..2 in his complaint that respondent No.2 and injured Bijender were removed to Police Post and were made to sit there for hours. It is further alleged by respondent No.2 in his complaint that the injured Bijender was sent for medical examination after a long time. It is also alleged by respondent No.2 in his complaint that respondent No.2 and the injured continuously kept on requesting for registering their complaint, but all in vain. On the contrary, the police registered a false case vide FIR No. 255/2004 on the instructions of the petitioners under Section 308/324/506/34 IPC. It is also alleged by respondent No.2 in his complaint that the petitioners have caused injuries to themselves only to involve the complainant in a false criminal case with a view to avoid warrants of possession of Khasra No. 507. It is also alleged by respondent No.2 in his complaint that the brother of Jai Narain gave telegraphic call at 00.40 hours on 27.05.2004 to the Commissioner of Police narrating all the facts. It is also alleged by respondent No.2 in his complaint that the brother of Jai Narain gave telegraphic call at 00.40 hours on 27.05.2004 to the Commissioner of Police narrating all the facts. On these allegations respondent No.2 filed the complaint case. 7. However, perusal of the record of both the cases show that the genesis of the dispute is the attempt of the petitioners in Cr1.M.C.2452-55/2008 to have the possession of the property during the course of execution from the petitioners in Crl.M.C.I05/2008 on the basis of an order passed by the Civil Judge by using force. Even though it has been argued on behalf of the petitioners in Cr1.M.C.2452-55/2008 that they were provided with Police help but in this connection statement of baliff, Shri Tilak Bihari, given in Suit No. 179/1995 (Old No. 46/83) Ex. No. 183/02 (Old No. 71/01), true copy of which is annexed with Cr1.M.C.2452-2455/2005 as Annexure P-l is of importance and the same for the sake of reference is reproduced hereunder:"1 was appointed as a baliff by Administrative Civil Judge for an execution of warrant of possession against the judgment debtor in respect of one third share of khasra No. 507 and khasra No. 529, Village devali, Mehrauli, Delhi in the above case. On 25.05.04 at 3.15 PM I went to the suit premises that is khasra No. 507 and khasra No. 529, Village Devali Mehrauli, Delhi. I went to the said suit premises with authorized DH Shamsher Singh. On reaching the premises, I executed the warrant in respect of khasra No. 529 and handed over possession of one-third share to the DH as per the warrants. And thereafter, I went to khasra No. 507. On reaching the spot, I found JD No.1 with his wife, children and some other females and tl:1ey resisted in execution of warrants in respect of one third share of khasra No. 507, there was apprehension of breach of peace the local police was called on the spot. Sh. Aishvir Singh, Sub-Inspector (Chowki Incharge) Madan Gir, Delhi also came on the spot. The warrants were shown to him and he informed that as there is no direction from the concerned DCP, Police, 1 am not in a position to give police assistance. The said warrants could not be executed in respect of khasra No. 507 as there was breach of peace on the spot, without police help/assistance. The warrants were shown to him and he informed that as there is no direction from the concerned DCP, Police, 1 am not in a position to give police assistance. The said warrants could not be executed in respect of khasra No. 507 as there was breach of peace on the spot, without police help/assistance. My report is Ex. Dl which bears my signature at point A." 8. Taking into consideration the statement made by baliff it is apparent that though no police help was provided to the petitioners in Crl.M.C. No.2452-55/2005, yet they tried to take possession of the property by taking law in their own hands and in this process inflicted several injuries to opposite party which is the basis of registration of FIR in question against the petitioners in Crl.M.C.2452-55/2005 and which is the subject matter of . seeking quashing of the said FIR in Crl.M.C.2452-55/2005. 9. It appears that as a counter blast the petitioners in Crl.M.C.345255/2005 filed a complaint case against the petitioners in Crl.M.C.105/2008 based upon the report of the baliff, who alleged that there were some obstructions in the process of taking possession when he visited the spot. 10. While it is not for this Court to say anything on the merits of this case or the right of the petitioners in Crl. M.C. 2452-55/2005 to take possession of the property based upon the orders passed in their favour, only comment which can be observed here is that nobody is above law. The execution could have been resorted to by the petitioners in case there was appreciation of breach of peace with the help of Police. Once the local SHO refused to provide police help to the petitioners in Crl.M.C.2452-55/2005, they were required to approach the Civil Judge again with a request to ensure that the police help is provided before going to the site to take possession of the property. Having not done so, the circumstances in which the complaint case is filed at the instance of the complaint which is the subject matter of Cr.M.C.105/2008 needs trial. Similarly, the allegations made in the FIR in question which is the subject matter of Crl.M.C.2452-55/2005 arise out of the same incident. 11. Having not done so, the circumstances in which the complaint case is filed at the instance of the complaint which is the subject matter of Cr.M.C.105/2008 needs trial. Similarly, the allegations made in the FIR in question which is the subject matter of Crl.M.C.2452-55/2005 arise out of the same incident. 11. However, the position becomes clear in view of the report of the baliff which shows that the averments made either in the FIR in question or the complaint in question are prima facie not correct and require evidence to be led by both the parties which will crystallize the facts in their correct perspective so as to establish as to which of the parties was the aggressive party and which party exercise its right of self defence. 12. Taking into consideration all the facts of this case, I am satisfied that these are the cases where this Court should not intervene by exercising its power under Section 482 Cr.P.C. The allegations and counter allegations can only be settled after recording of evidence by both the parties. 13. Accordingly, both the petitions are dismissed. However, it may be clarified that nothing stated in my aforesaid order would in any way affect the trial of the cases which are pending before the concerned courts and would not be used as a reflection on the merits of the cases. In view of the orders passed above, the application stands dismissed. Interim order, if any, stands vacated.