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2012 DIGILAW 2479 (DEL)

Noor Jahan @ Haseena v. State NCT of Delhi

2012-08-16

GITA MITTAL, J.R.MIDHA

body2012
JUDGMENT : Crl.M.(Bail)No.468/2012 This application has been premised on a plea of juvenility set up by appellant no.3 Imran Khan s/o Abdul Waheed. Appellant no.3 was charged with commission of offence under Section 302 of the Indian Penal Code with regard to an incident occurred on 8th October, 2008. Appellant no.3 has set up a plea in this application that his date of birth is 17th June, 1991 and, therefore, Fi is age as on the date of incident was about 17 years and 4 months. In this regard, reliance has been placed on copy of a certificate issued by the Government of Uttar Pradesh on 11th February, 2011. Learned APP for the State submits that this document has been issued on the information submitted by the mother of the appellant during the pendency of the appeal and, therefore, does not deserve any credence. 2. The State has relied on an extract of a register purporting to be an extract from the record maintained by the Nagar Nigam Prathmik Vidyalaya, Johari Pur-11, Delhi -110 094 where appellant no.3 was alleged to have studied between 10th April, 1996 to 3rd April, 2001 certifying that the appellant was born on Ist April, 1990. This entry in the extract of a register is also based on no contemporaneous municipal record but on the information allegedly given by the mother of the appellant. The extract records that the information was so given by the lady who was working as a labourer. In this background, we found it wholly unsafe to rely either on the document furnished by the appellant or the extract of the record placed before this court by the State. The appellant had been produced before this Court and his physical appearance also justified that medical examination before assessment of his age be effected. Accordingly, on 16th July, 2012, we had directed the medical examination of the appellant. 3. Pursuant thereto, a report dated 31st July, 2012 has been submitted before us by the Board of three doctors, namely, Dr. G.S. Pradhan, (Department of Radiology),, Dr. Monika Kalkar, (MAIDS) and Dr. Sreenivas M. (Department of Forensic Medicine) of Lok Nayak Jai Prakash Hospital. As per this report, doctors have closely examined the petitioner as well as his x-ray. 3. Pursuant thereto, a report dated 31st July, 2012 has been submitted before us by the Board of three doctors, namely, Dr. G.S. Pradhan, (Department of Radiology),, Dr. Monika Kalkar, (MAIDS) and Dr. Sreenivas M. (Department of Forensic Medicine) of Lok Nayak Jai Prakash Hospital. As per this report, doctors have closely examined the petitioner as well as his x-ray. After scrutiny of the dental, radiological and physical examination of the appellant, the Board of Doctors has opined that the age of the appellant is between 22 to 25 years on the date of the his medical examination. 4. In terms of Rule 12 of the Juvenile Justice (Care and Protection of Children) Act, 2000, giving the one year margin on the lower side of the age as opined on the medical examination, the appellant would be below the age of 18 years as on 8th October, 2008 which is the date of the incident. The appellant would thus be covered under the definition of juvenility within the meaning of the expression under Section 2 of the Juvenile Justice (Care and Protection of Children) Act, 2000 as on the date of the offence entitling him to the benefit of the statutory provisions. 5. We are informed that the applicant stands incarcerated since 16th October, 2008 and has already been in jail for a period of 3 years and 10 months. Given our finding on the age of the appellant no.3 on the date of the offence and the provisions of the Juvenile Justice (Care and Protection of Children) Act, 2000, the appellant no.3 cannot remain incarcerated any further. 6. In view of the above, we direct as follows:- The appellant shall be set at liberty by the Jail Authorities. 7. This application is allowed in the above terms. P.K.Bhasin, J.:— Apprehending his arrest by the police in a case under Sections 420/468/471/448/120-B IPC registered at Safdarjung Enclave police station vide FIR no. 207/2011 on 6th August, 2011 pursuant to the directions of the Metropolitan Magistrate given under Section 156(3) Cr.P.C. in a criminal complaint filed by the complainant against one Vishwa Nath Tiwari the petitioner seeks anticipatory bail. 2. 207/2011 on 6th August, 2011 pursuant to the directions of the Metropolitan Magistrate given under Section 156(3) Cr.P.C. in a criminal complaint filed by the complainant against one Vishwa Nath Tiwari the petitioner seeks anticipatory bail. 2. The criminal complaint, in which the learned Metropolitan Magistrate had ordered registration of FIR, was filed by the President of Residents Welfare Association of Krishna Apartments at 20-B/21-A, Krishna Nagar, Safdarjung Enclave, New Delhi on behalf of all the members of the Association. It was alleged in the complaint against Vishwa Nath tiwari that members of the said Association had been allotted 16 flats in the said Krishna Apartments by its owners/developers, one of whom was the present petitioner and the other one was one R.K.Jain. As per the agreements executed with the owners/developers for allotment of flats each one of the allottees was to get car parking space in the basement. Though possession of the flats was given to the allottees during the period 2003-06 but basement was allegedly not completed by the owners/developers by the time dwelling Units were completed and they had been assuring the allottees that the same shall be completed soon. It was further alleged in the complaint that during that period one of the owners/developers R. K. Jain had allowed one of his employees Vishwa Nath Tiwari to occupy the basement to look after the construction work of the parking space and the complainant at that time had allowed accused Vishwa Nath Tiwari to raise a temporary wooden structure to stay in the basement for looking after the construction of the parking space. However, thereafter though the developer initiated the work but kept on lingering on pretext or the other and neither the parking area was completed in the basement nor accused Vishwa Nath Tiwari vacated the area occupied by him despite the allottees telling him to vacate so that they themselves could get the needful done and instead he started claiming himself to be a tenant since 01.04.2004 under a Rent Deed dated 22nd December, 2010 allegedly executed by the present petitioner. It was further claimed in the complaint that this Rent Deed was forged by the accused only to create his interest in the temporary structure in the basement and thus accused Vishwa Nath Tiwari had committed the offences of cheating, forgery and criminal trespass over the property jointly owned by the constituents of the Association. 3. This anticipatory bail application has been opposed by the learned Additional Public Prosecutor, who was assisted by the learned counsel for the complainant, on the ground that the allottees of the flats had been cheated as entire basement was to be made available to them for parking their cars and to deprive them of that parking space the petitioner had joined hands with accused Vishwa Nath tiwari and had created a false document of Vishwa Nath’s tenancy w.e.f. 1-4-2004 and that original Rent Agreement is to be recovered from the petitioner-accused and for that purpose his custody is required by the police. 4. Learned counsel for the petitioner submitted that a purely civil dispute of alleged breach of contract is being converted by the police in collusion with the allottees of the flats into a criminal case to grab the entire basement area which, in fact, was not the term of contract between the parties and only space for one car each was to be given to them and the same was given. It was also submitted that in the FIR itself it had been alleged that the complainant had also allowed Vishwa Nath Tiwari to occupy part of the basement and so there was no question of the allottees being cheated by anyone and certainly not by the petitioner. Even otherwise all the allegations are against Vishwa Nath Tiwari and R.K.Jain and but the police is not arresting R.K.Jain and is only trying to arrest the petitioner in arbitrary exercise of its powers to arrest anyone. It was also contended that if Vishwa Nath Tiwari has forged any Rent Deed the recovery of that document could be made from him only after his arrest and for that reason the custodial interrogation of the petitioner is not required. In support of the submission that the cases which are primarily of civil nature should not be allowed to be converted into criminal cases learned counsel cited two judgments of the Apex Court reported as “Dalip Kaur & Ors. Vs. In support of the submission that the cases which are primarily of civil nature should not be allowed to be converted into criminal cases learned counsel cited two judgments of the Apex Court reported as “Dalip Kaur & Ors. Vs. jagnar Singh & Anr.”, 2009 XI AD (SC) 472 and “V.Y. Jose & Anr. Vs. State of Gujarat & Anr.”, 2009 I AD (SC) 500. 5. After going through the complaint, which was filed in the Court by the President of the above named Association and which was only against Vishwa Nath Tiwari and it had been claimed therein that R.K.Jain had put him in possession of the disputed portion of the basement and the complainant had also agreed at that time for his being put in possession and the submissions made from both the sides at the time of hearing of this bail application I am of the view that this is a fit case where petitioner should be granted the relief of anticipatory bail. 6. This application is accordingly allowed and the interim anticipatory bail already granted to the petitioner vide order dated 6th August, 2012 is confirmed on the same terms and conditions. October 5th, 2012