ORDER
N.G. Nandi, J.
1. Invoking the extra-ordinary jurisdiction under Article 226 of the Constitution of India r/w Section 482 of the Code of Criminal Procedure (hereinafter referred to as “the Code”) FIR No.407/98 dated 22.5.1998 alleging offences under Section 341/448/34 IPC registered at Police Station defense Colony, New Delhi is sought to be quashed in this writ petition.
2. A few facts, emerging from the record, necessary to state are that on 22.5.1998 respondent No.2 (Deepak Anand alias Deepak Jha) filed a complaint in P.S. defense Colony, New Delhi alleging offences under Section 341/448/34 IPC stated that at about 10 A.M. petitioner No.1 (Raj Gupta) along with six other accomplice came to his defense Colony home and betray into the house A-263, defense Colony, Ground Floor and started beating mercilessly and dragged him out of the home; that even his cellular phone was also taken away by force and locked the room; that police was contacted on Telephone No.100; that all fled away; that when the complainant was working, five other persons came and tried to pull him in the car on the pretext that Raj Gupta wants to see him and when the complainant provoked they again started using force; that the complainant was working with petitioner No.2 (Mrs.Amita Gupta) who is an Advocate; the complainant had a six months’ independent agreement; on telephone she threatened that if he does not vacate the place she will get him killed; that the complainant was terminated from his job in this month. In this complaint the prayer is that safety of the house and person of the petitioner be ensured besides the
police protection.
In the petition, it is the say of the petitioners that Petitioner No.2, an Advocate had employed respondent No.2 (complainant) as Trainee Advocate on his request on 4.4.1998; that Mr.Vinay, Assistant Registrar of the High Court complained to petitioner No.2 about the misbehaviour and threats given by respondent No.2 while removing the defects/ office objections of a matter on 18.4.1998 and immediately on the morning of 20.4.1998, petitioner No.2 terminated the services of respondent No.2 and handed him a cheque for Rs.2,500/-; that petitioner No.2 has her office at 100, Sukhdev Vihar, New Delhi and in one room on the ground floor at A-263, defense Colony, New Delhi, which is owned by the company wherein petitioner No.1 is the Director; that on 22.5.1998 petitioner No.2 had got her matter listed before Punjab and Haryana High Court at Chandigarh and she had left for Chandigarh on 21.5.1998; that petitioner No.1 was passing at about 10 A.M. through A-263, defense Colony, New Delhi and found respondent No.2 standing near the gate. Since the services of respondent No.2 had been terminated on 20.4.1998, petitioner No.1 inquired from respondent No.2 as to why he was standing there and stopped him from entering the premises; that respondent No.2 started abusing petitioner No.1 and threatened that he would bring 500 persons and not leave the premises without taking ransom of Rs.5.00 lakhs. Petitioner No.1 lodged complaint at 11.30 A.M. on 22.5.1998 with the S.H.O. P.S. defense Colony; that respondent No.2 lodged FIR No.407/98 at 2.30 P.M. in P.S. defense Colony; that FIR No.407/98 does not disclose the charges as alleged therein; that respondent No.2 does not have any right to enter the premises A-263, defense Colony, New Delhi as he is no more in the employment of petitioner No.2; that petitioner No.1 being a Director of the company to which the property belongs, has every right to stop respondent No.2 from entering the premises as he was no longer in the services of petitioner No.2; that petitioner No.1 is the owner of entire building bearing No.A-263, defense Colony and he had allowed petitioner No.2 to use only one room as her office she being his wife; that petitioner No.1 can not be said to have committed house trespass of the building in question of which he is the owner in possession of the entire building but it is respondent No.2 who has committed the offence under Section 448 IPC. On these
grounds, FIR No.407/98 dated 22.5.1998 for the offence under Section 341/448/34 IPC registered at P.S. defense Colony, New Delhi is sought to be quashed.
Respondent No.2 in his reply-affidavit has stated that the petitioners have not approached this Court with clean hands and that they are guilty of suppression of facts; that respondent No.2 is a lawful tenant of premises in question and was in lawful exclusive possession of the same in that capacity much before the date of occurrence and that the petition is liable to be dismissed on this ground alone; that interference with the routine investigation at such an early stage is contrary to law of land and the prosecution must be afforded with the reasonable opportunity to substantiate the allegations; that the present petition is abuse of process of law, the same has been filed with an ulterior motive and to escape the penal consequences of the unlawful acts and to justify the use of force in order to dispossess the respondent unlawfully; that respondent No.2 is a Law Graduate from Campus Law Centre, University, Delhi and was looking for an advocate with fifteen years of standing who could impart him training as his guide, as per the Bar Council of India Training Rules; that petitioner No.2 is a practicing advocate of High Court of Delhi with 16 years of standing and hence competent to be a guide under the said Rules; that respondent No.2 joined petitioner No.2 from 23.3.1998. It was initially agreed that a monthly stipend of Rs.5,000/- would be paid by petitioner No.2 to respondent No.2, who at that time was staying at 176, Bhai Parmanand Colony, Kings Way Camp, Delhi, which was far away from the residence-cum-office of petitioner No.2 which is at 100, Sukhdev Vihar, New Delhi; that after around 15 days respondent No.2 started his training; it was stated by petitioner No.2 that she wanted him to shift somewhere in the proximity of her office, which was at 100, Sukhdev Vihar, New Delhi so that he could be available to her even at late hours; that it was disclosed by petitioner No.2 that her husband jointly owns a house in defense Colony, which was close to her office and was lying vacant and she offered to talk to her husband to get that house let out to respondent No.2 and finally respondent was given one portion of the Ground Floor of that house as a tenant on security deposit of Rs.25,000/- and a monthly rent of Rs.1,000/- + Rs.100/- towards electricity and water charges; that petitioners did not issue any receipt either in relation to the security deposit or monthly rent to the respondent; that after one week respondent shifted to the said premises; Petitioner No.2 asked him to sign a Five Year’s contract to work with her on the same salary which was out rightly rejected by respondent No.2. Petitioner No.2 kept on insisting on her proposal and refused to give certificate of commencement of training till respondent No.2 signs the agreement; that respondent No.2 finally left petitioner No.2 in the end of April 1998 and petitioner No.2 even did not pay him what was agreed upon but handed over a cheque dated 28.4.1998 for a sum of Rs.2,500/- only.
Respondent No.2 in his reply then proceeds to narrate the alleged incident of 22.5.1998 at 10 A.M.; that in the said incident respondent No.2 sustained some injuries and was medically examined; that petitioner No.1 with the help of other persons dragged respondent No.2 out from the premises. They picked up the lock of respondent No.2 and tried to lock the room but it was later on found that they could not put the lock in the right place and unknowingly left the room open; that when respondent No.2 came back to his place after filing the FIR and after being medically examined, he found Rs.5,000/- and gold chain weighing 20 gms. missing from the drawer of his table. A report to that effect was also lodged with the concerned police station; that the petitioners are guilty for the offences under Section 341/448/34 IPC and the petition deserves to be dismissed in limine being abuse of process of the court.
3. The admitted facts emerging on record are that respondent No.2 as a trainee joined the office of petitioner No.2, a practicing advocate. Respondent No.2 left petitioner No.2 in the end of April 1998 _ according to petitioner No.2 the employment of respondent No.2 was terminated by her on 20.4.1998; that Rs.2,500/- were paid by petitioner No.2 to respondent No.2
vide cheque bearing No.53975.
4. It has been submitted by Mr.Dinesh Mathur, learned counsel for the petitioners that petitioners left for America in June 1998 and returned in July; that Money Order Slip Annexure R-8 dated 16.6.1998 and the Acknowledgement suggest the respondent to be the sender of the Money Order and also the recipient of the amount; that the plea of tenancy and Money Order received are fabricated; that M.L.C. is of 1530 hours whereas DD No.6A on the basis of the complaint filed by petitioner No.1 is registered at 11.30 AM; that in reply it is not stated as to by whom and how rent and the security deposit were paid; that respondent No.2 has been put in possession by the police and the possession be restored to the petitioners.
It is submitted by Mr.S.K.Aggarwal, learned Standing Counsel (Criminal) for the State (respondent No.1) that investigation into the allegations in the complaint dated 22.5.1998 is pending and no conclusion has yet been reached; that there was no material for arrest hence no arrest has so far been made.
Mr.Deepak Anand @ Deepak Jha, respondent No.2 has stated that there is nothing to show that through police he entered into the premises; that the complaint dated 22.5.1998 by petitioner No.1 is contrary to what has been stated in the rejoinder-affidavit (page 68) in as much as it is stated therein that “the constable from Police Station defense Colony at the instance of Respondent No.2, went to the office of the petitioner no.1 on 22nd May, 1998 and collected the duplicate key of the office of the petitioner no.2 and allowed him to enter the office of petitioner no.2, especially when she had gone out of station”, since these averments are not to be found in the complaint; that inquiry at this stage can not be made about the genuineness of the defense; that respondent was inducted on 12.4.1998 in the premises in question as a tenant; that the agreement about six months’ tenancy is a question of fact and interpretation of the terms of agreement; that as far as the M.L.C. is concerned, the nature of injuries is not material; that the petitioners have not come with clean hands; that the relationship of landlord and tenant is a question of fact and no inquiry can be made by this Court into the same; that there is no question of quashing of complaint at this stage since the investigation is in progress; that practically the investigation is stayed by the order passed earlier; that petitioner No.2 has no locus standi to file the petition; that there are no allegations made by petitioner No.2 as far as the incident of 22.5.1998 is concerned.
5. In the case of State of Haryana & Others Vs. Bhajan Lal & Others the Supreme Court categorised the cases by way of illustration wherein the extra-ordinary power under Article 226 or inherent powers under Section 482 of the Code can be exercised by the High Court either to prevent abuse of the process of any Court or otherwise to secure ends of justice, it has been observed that “though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised”. The categories of cases are :
(1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.
(2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.
(3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.
(4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.
(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.
(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.
(7) Where a criminal proceeding is manifestly attended with malafide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.
In paragraph 103, it has been observed that “the power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases; that the court will not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR or the complaint and that the extraordinary or inherent powers do not confer an arbitrary jurisdiction on the court to act according to its whim or caprice.” In paragraph 108 it is observed that “in this case the entire matter is only at a premature stage and the investigation is not yet proceeded with except some preliminary efforts taken on the date of the registration of the case. The evidence has to be gathered after a thorough investigation and placed before the Court, on the basis of which alone the Court can come to the conclusion one way or the other, on the plea of malafide. If the allegations are bereft of truth and made maliciously, we are sure, the investigation will say so. At this stage, when there are only allegations and recriminations but no evidence, this court cannot anticipate the result of the investigation and render a finding on the question of malafides on the materials at present available. Therefore, we are unable to see any force in the contention that the complaint should be thrown overboard on the mere unsubstantiated plea of mala fides.”
6. According to respondent No.2, by an agreement, a tenancy has been created for a period of six months in his favour at a monthly rent of Rs.1000/-plus Rs.100/- by way of electricity and water charges and that he shifted in the premises in question on 12.4.1998 for which copy of cash memo dated 12.6.1998, issued by Singh Tempo Service suggesting the transportation of household goods from 176, Bhai Parmanand Colony to A-263, defense Colony on 12.4.1998, copy of bill dated 3.5.1998 issued by K.K. Tailors, 331, defense colony, New Delhi, Bill dated 29.4.1998 issued by Nutex Dry Cleaners and Tailors, 1 defense Colony Market, New Delhi and copy of cash/credit memo dated 30.4.1998 in the name of Deepak Anand, A-263, defense Colony, New Delhi have been produced. The offence alleged in the complaint dated 22.5.1998 is that of house trespass by petitioner No.1 and respondent No.2 has been claiming on the date of the incident to be in exclusive physical possession of the premises in question.
7. In the case of Mustaq Ahmad Vs. Mohd.Habibur Rehman Faizi and others it has been held that “Documents annexed prima facie made out case, it is not permissible to the High Court under Section 482 of the Code to proceed to consider version of accused given out in petition filed under Section 482 vis-a-vis that of complainant and enter into debatable area of deciding which of the version was true. The order of quashing complaint held illegal and set aside”.
8. In the instant case, the complaint was filed by respondent No.2 on 22.5.1998 alleging commission of offences under Sections 341/448/34 IPC and the FIR has been registered accordingly. Investigation is in progress. The investigation into the allegations against the petitioners are at the preliminary stage. The investigation into an offence is a statutory function of the police. A Court is not justified to interfere with the investigation except on compelling and justifiable reasons. Whatever documentary evidence, especially the copy of cash memo dated 12.6.1998 issued by Singh Tempo Transport Service suggesting the shifting of household goods from 176, Bhai Parmanand Colony to A.-263, defense Colony, New Delhi on 12.4.1998 suggesting the shifting of the household goods by respondent No.2 to A-263, defense Colony, New Delhi, the copies of cash/credit memo issued by Sanjay & Sagar Newspaper Agency dated 30.4.1998 and the bill dated 3.5.1998 issued by K.K.Tailors, 331, defense Colony, New Delhi, the laundry receipt No.21341, suggesting the date 29.4.1998 and 30.4.1998 issued by Nutex Dry Cleaners & Tailors, 1, defense Colony Market, New Delhi suggesting the address of respondent No.2 of A-263, defense Colony, New Delhi prior to the incident which is alleged to have taken place on 22.5.1998 at about 10 O’clock in the morning, have been produced will be the function of the investigating agency to look into the same including their genuineness. It is not the function of the Courts at this preliminary stage to examine the merits of the claim of Respondent No.2 or the correctness or genuineness of the documents.
9. The allegations in the complaint suggest the alleged beating and dragging out of respondent No.2 out of the premises i.e. A-263, Ground Floor, defense Colony, New Delhi, besides the taking away of his cellular phone by force and locking of the room. In the complaint, the prayer is also for the safety of the house of respondent No.2 and the return of the goods with police protection at the premises A-263, defense Colony, New Delhi. The allegations in the complaint, prima facie, suggest the commission of cognizable offence under Sections 341/448/34 IPC.
10. In the case of State of Bihar Vs. K.J.D. Singh, 1993 Criminal Law Journal page 3537, it has been held by the Supreme Court that quashing of prosecution under Section 482 of the Code by invoking inherent powers prior to the commencement of the trial and leading of the evidence is not desirable. Power should be exercised only in exceptional cases. In paragraph 2, it is observed “We are afraid that it is not permissible for us to appreciate these submissions of the learned counsel at the stage when evidence has yet to be led. In our opinion, the course adopted by the High Court to appreciate the `evidence’ was not proper. The observations made with regard to the alleged unsatisfactory nature of the evidence by the High Court, to say the least, were premature.”
11. Coming to one of the requirements for invoking Section 482 of the Code for quashing the complaint/FIR namely the absurdity or inherent improbability in the allegations made therein, as far as the present case is concerned, it may be seen that what is alleged in the complaint is that respondent No.2 has his house/home in the premises bearing No.A-263, defense Colony, New Delhi. For this purpose the documents referred to above namely the bills, cash memos, vouchers, etc. in case during investigation are found to be in order and genuine would prima facie suggest the physical possession of respondent No.2 in the premises prior to and on the date of the commission of alleged offence and the alleged trespass in the said premises by petitioner No.1 and his persons at about 10 O’clock on 22.5.1998. For the present limited purpose, taking the allegations in the complaint, as reproduced above to be true, the same prima facie do not sound absurd or inherently improbable so as to justify the quashing of the complaint/FIR with regard to the incident alleged. Once the allegations in the complaint/FIR do not appear to be absurd or inherently improbable, then it would not be proper on the part of the court to quash the complaint/FIR invoking Section 482 of the Code only considering the contentions raised by the petitioner No.1 and thereby expressing opinion with regard to the evidence or the controversy which is not permissible for the present purpose.
12. One more argument advanced by Sh.Mathur is that petitioner No.1 lodged complaint at 11.30 AM reporting the incident to SHO, P.S.defense Colony stating that when he was passing from the defense Colony office of petitioner No.2, he found that one of the old employees of his wife Amita Gupta, Advocate, whose name he does not know, was standing there and trying to enter the premises. Without expressing any opinion with regard to the allegation against respondent No.2 vide this complaint, it appears that it is sought to be conveyed thereby that respondent No.2 was not in possession of the premises in question and that he was only trying to enter the premises. This may be a defense to the allegations made in the complaint filed by respondent No.2. The facts alleged by petitioner No.2 in his complaint received at P.S.defense Colony at 11.30 AM or in the communication, which Respondent No.2 handed over to the S.H.O., P.S. defense Colony, on 22.8.1998 at 8.30 P.M. stating that “after the complaint was filed Mr.Raj Gupta was arrested and later on released on bail. The key of my house was also recovered from him and given to me by police when I came back to my place after being medically examined” cannot be taken into consideration for the purpose of deciding this petition under Section 482 of the Code. Suffice it to say that it is the absurdity and/or inherent improbability, if any, in the allegations made in the complaint by respondent No.2 and the alleged commission of a cognizable offence in light of the documentary evidence can be looked into and in our opinion, the allegations in the complaint clearly suggest the commission of a cognizable offence alleged therein.
13. The settled legal position being as pointed out above, we are of the opinion that no case can be said to have been made out calling for the quashing of the complaint/FIR filed by respondent No.2 at this stage. It will be for the investigating agency, during the course of investigation to probe into the allegations made in the petitioners’ complaint received at 11.30 A.M. or in the communication of Respondent No.2 received at 8.30 P.M. on 22.8.1998 at P.S. defense Colony. The present petition being devoid of substance deserves to be dismissed.
Ordered accordingly.
14. None of the above observations shall be construed to mean an expression of opinion on the merits of the contentions raised by either party.
