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M.M. Kohli Vs. Ramesh Kohli and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtDelhi High Court
Decided On
Case NumberCriminal Miscellaneous (Main) Appeal No. 973 of 1983
Judge
Reported in1984(3)Crimes484; 1984(7)DRJ32
ActsCode of Criminal Procedure (CrPC) , 1973 - Sections 482
AppellantM.M. Kohli
RespondentRamesh Kohli and anr.
Advocates: D.C. Mathur,; B.S. Mehta and; B.T. Singh, Advs
Cases ReferredState of Kamataka v. L. Muniswami
Excerpt:
.....in the recharge evidence complainant ramesh kohli came in the witness box and deposed to the aforesaid allegations made in the complaint specifically adverting to the aforesaid two incidents having occurred on 16-5-1982 as also about the entire barsati floor and the terrace there having been in his exclusive possession whereon he had put his own lock and therein he had kept some furniture, clothes, files and documents in safe custody......(2) ramesh kohli, m.m. kholi and j.b. kohli are real brothers being the sons of late shri b.c kohli. accused no. 2 mrs. aruna kohli is the wife of j.b. kohli. the remaining accused, namely, aziz khan, mool chand, hem raj and chhotu are alleged to be the servants of the petitioner/ accused no. 1 m.m. kohli. in the complaint the residential address of all the parties is mentioned as premises no. 31, golf links, new delhi. the father of the complainant ramesh kohli and his brothers m.m. kohli and j.b. kohli dies on 15-4-1978 leaving behind the aforesaid house no. 31 golf links, new delhi and other landed property in dehradun and mussoorie. (3) according to the allegation made in the complaint the entire barsati floor of house no. 31, golf links, new delhi including the terrace has been.....
Judgment:

Jagdish Chandra, J.

(1) This petition under Section 482 of the Code of Criminal Procedure 1973 is directed against the two orders dated 10-2-1983 and 24-10-1983 passed by Shri Parkash Chand Metropolit Magistrate, New Delhi in the complaint brought by Ramesh Kohli against the petitioner M.M. Kohli, Mrs. Aruna Kohli, Aziz Khan, Mool Chand, Hem Raj and Chhotu under Sections 452/427/147/149 Indian Penal Code vide impugned order dated 10-2-1983 the learned magistrate finding a prima facie case ordered the summoning of all the accused persons for the offences referred to above 3-3-1983. Vide the other impugned order dated 24-10-1983 non-bailable warrants were ordered to be issued against all the accused persons including the petitioner M.M. Kohli except accused No. 2 Mrs. Aruna Kohli.

(2) Ramesh Kohli, M.M. Kholi and J.B. Kohli are real brothers being the sons of late Shri B.C Kohli. Accused No. 2 Mrs. Aruna Kohli is the wife of J.B. Kohli. The remaining accused, namely, Aziz Khan, Mool Chand, Hem Raj and Chhotu are alleged to be the servants of the petitioner/ accused No. 1 M.M. Kohli. In the complaint the residential address of all the parties is mentioned as premises No. 31, Golf Links, New Delhi. The father of the complainant Ramesh Kohli and his brothers M.M. Kohli and J.B. Kohli dies on 15-4-1978 leaving behind the aforesaid House No. 31 Golf Links, New Delhi and other landed property in Dehradun and Mussoorie.

(3) According to the allegation made in the complaint the entire barsati floor of house No. 31, Golf Links, New Delhi including the terrace has been in actual, exclusive, physical and lawful possession of the complainant Ramesh Kohli who used the same even during the life time of his father to the exclusion of other members of the family. Although the complainant alleges his actual exclusive, physical and lawful possession in respect of two bedroom with attached bath room. garage and the verandah on the ground floor also, the dispute in this case is only in regard to Barsati floor along including the terrace. It is further alleged that after the death of their father M.M. Kohli petitioner and J.B. Kohli, started harassing the complainant and his family members in order to pressurise them to vacate the portions in their possession.

(4) Civil litigation at various levels is going on between the complainant on the one hand and his brothers M.M. Kohli petitioner and J.B. Kohli on the other with regard to the properties left behind by their late father including the bungalow No. 31, Golf Links, New Delhi.

(5) The complainant filed a civil suit for perpetual injunction against petitioner M.M. Kohli being suit No. 78 of 1981 where in Shri S.M. Gupta, S.J.I.C. Delhi directed the parties to observe status quo with respect to the portions of the property on the ground floor till further orders. The alleged harassment on the part of M.M. Kohli and J.B. Kohli to forcibly and illegally evict the complainant from the said house continued regarding which the complainant lodged a number of reports with the police on various dates during the period from 31-1-1981 to 16-5-1982 but no action was taken by the police, though convinced of the bona fides of the reports lodged by the complainant.

(6) It was then alleged that on 16-5-1982 at about 3-3.0 P.M. M.M. Kohli petitioner and accused No. 3 Aziz Khan along with two friends of M.M. Kohli whose names the complainant did not know brought one locksmith/plumber and with his help broke open and cut open the lock put by the complainant on the door leading to terrace and Barsati floor of bungalow No. 31, Golf Links, New Delhi and thereafter they unscrewed the entire wooden door. On hearing the noise the complainant went up and tried to stop them from doing so but he was manhandled and pushed aside. The com- plainant then called the police and rushed to the spot and found that the above mentioned persons were removing the entire door into the varandah of the first floor of the said house, in spite of the injunction of the civil court regarding all parties to the suit to maintain status quo. It is alleged that in this manner the aforesaid persons made an attempt to break into the Barsati in order to remove all the files and documents in possession of the complainant to weaken his case in the court by usurping the Barsati floor forcibly from his possession. Instead of taking any action the police simply directed the petitioner M.M. Kohli to put back the door in the same position as it was earlier.

(7) Encouraged by the non-action on the part of the police it is further alleged by the complainant that in the same night, i.e. 16-5-1982 at about 9-30 P.M. while the complainant was sitting in the lawn of his house along with one of his sisters and her husband namely, Brij Mohan Chatrath, a Chartered Accountant of repute, he noticed some commotion and movements and swinging of shadows on the terrace of the Barsati floor of the said bungalow and when he went to the terrace he saw four persons on the Barsati floor. The complainant getting suspicious came back and when he approach- ed the door, accused No. 3 Aziz Khan rushed towards him with a table in his hands but the complainant tried to protect himself from being hit by getting aside whereas petitioner M.M. Kohli and accused No. 2 Mrs. Aruna Kohli wife of J.B.Kohli exhorted the remaining accused persons, namely Aziz Khan, Mool Chand, Hem Raj and Chhotu all servants of M.M. Kohli to take the furniture to the terrace of the Barsati floor and would not desist despite entreaties made by the complainant. It is further alleged that the wife of the complainant and his brother-in-law Shri Chatrath also came there. The complainant asked his wife to go down and call the Flying Squad but she was also manhandled by the accused persons. Accused No. 2 Smt. Aruna Kohli also appeared there on the scene and started threatening the complainant that he would be involved in various cases through false reports and he would be compelled to vacate the house. She also started beating Dr. Indra Bhatia who arrived there per chance and tried to intervene to defuse the situation.

(8) Thus, the aforesaid two incidents occurring at 3-30 P.M. and 9-30 P.M. on 16-5-1982 were the subject matter of the complaint.

(9) In the recharge evidence complainant Ramesh Kohli came in the witness box and deposed to the aforesaid allegations made in the complaint specifically adverting to the aforesaid two incidents having occurred on 16-5-1982 as also about the entire Barsati floor and the terrace there having been in his exclusive possession whereon he had put his own lock and therein he had kept some furniture, clothes, files and documents in safe custody.

(10) Dr. Indira Bhatia, sister of the complainant and Brij Mohan Chatrath, brother-in-law of the complainant were also examined in the witness-box by the complainant and both of them supported and corroborated the complainant as to the occurrence having taken place at about 9-30 P.M. on 16-5-1982 as also to the factum of the entire Barsati Floor of H. No. 31, Golf Links, New Delhi having been in the exclusive physical possession of the complainant.

(11) The learned magistrate finding the sufficiency of the aforesaid evidence in favor of the complainant ordered, the summoning of all the accused persons including the petitioner M.M. Kohli and even ordered the issuance of non-bailable warrants against petitioner and other accused persons except Mrs. Aruna Kohli.

(12) The main contention of the learned counsel for the petitioner is that bungalow No. 31, Golf Links, New Delhi was admittedly an Huf property of the complainant and his brothers M.M. Kohli and J.B. Kohli and that no partition thereof had been effected amongst the brothers and consequently all of them had common right of ownership and possession in the entire house including the Barsati floor and for that reason there could not be, under the law, any question of the commission of the offence of criminal trespass. What he wanted to convey was that on account of this property being undivided as yet, the petitioner had the right to enter upon the Barsati floor and that there could be no question of the complainant Ramesh Kohli being in exclusive physical possession of the Barsati floor and the terrace. No doubt, this house is joint and no partition thereof has taken place so far, it stands established from the depositions of complainant and his two witnesses who are equally related to the petitioner as to the complainant that entire Barsati floor along with terrace has been in the exclusive physical possession of the complainant alone. The proposition sought to be propounded by the learned counsel for the petitioner that there could be no question of any criminal trespass on the part of the petitioner and his co-accused is not tenable at law, because even though property may be joint, the co-owners can for the sake of convenience, comfort and privacy, be in possession of separate portions of the same undivided house and if one of the co-owners passes upon the portion in the exclusive possession of another co-owner with the intention to commit an offence or to intimidate or insult or annoy him, he is guilty of criminal trespass. One member of a joint family commits no trespass by entering into the house which forms the joint property, but he is guilty of that offence when he enters into the room ordinarily occupied by another member of the family (See Prankisto Chunder v. Bissonath Chunder (1871) 15 W.R.(Cr ) 6 and Prankrishan Chandra I.L.R. (1870) Beng. 80. A joint owner of property is entitled to have joint possession restored to him in a civil court; but he is not justified in taking the law into his own hands to recover possession and if he does so he is liable for criminal trespass (Vide- Emperor v. Gopalrao Venkatesh (1980) 10 Bom. L.R. 285. Thus, the aforesaid contention of the learned counsel for the petitioner is without substance and there was a prima facie case in favor the complainant Ramesh Kohli and against M.M. Kohli petitioner and his co-accused. Under the offences referred to above the learned magistrate was fully, justified in exercising the discretion in the manner he did in the matter of summoning the accused persons including the petitioner.

(13) The learned counsel for the petitioner invited the attention of the court to the following observations appearing in State of Kamataka v. L. Muniswami & ors., : 1977CriLJ1125 after the setting out of Section 482 of the Code of Criminal Procedure 1973 embracing the inherent powers of the High Court.

'In the exercise of this wholesome power, the High Court is entitled to quash a proceedings of it come to the conclusion that allowing the proceeding to continue would be an abuse of the process of the court or that the ends of justice require that the proceedings ought to be quashed. The saving of the High Court's inherent powers, both in civil and criminal matters, is designed to achieve a salutary public purpose which is that a court proceeding ought not to be permitted to degenerate into a weapon of harassment or persecution. In a criminal case, the veiled object behind a lame prosecution, the very nature of the material on which the structure of the prosecution rests and the life would justify the High Court in quashing the proceeding in the interest of justice. The ends of justice are higher than the ends of mere law though justice has got to be administered according to laws made by the legislature. The compelling necessity for making these observations is that without a proper realisation of the object and purpose of the provision which seeks to save the inherent powers of the High Court to do justice between the state and its subjects it would be impossible to appreciate the width and contours of that salient jurisdiction.'.

(14) On the basis of these observations of the Supreme Court it was contended for the petitioner that the case in hand was of a type wherein the main and the only idea of the complainant Ramesh Kohli is simply to cause harassment to the petitioner and the other co-accused especially in the context of the litigation going on between them in regard to the properties left behind by the father of the petitioner and the complainant and that the ends of justice would be really secured at by quashing the proceedings before the learned magistrate rather than allowing the complainant to pursue the same under the cloak of law. No doubt, the High Court in the exercise of its inherent jurisdiction has got such a power but that can be exercised only in appropriate cases and the case in hand does not belong to that category of cases.

(15) The contention of the learned counsel for the petitioner that there was no separate possession of the complainant in the Barsati floor in as much as he had not asserted the same in the above mentioned civil suit brought by him against M.M. Kohli wherein he had asserted his exclusive possession only in some portion of the ground floor of the house in question, and for that reason the impugned order ought not to have been passed by the learned magistrate cannot be accepted because that is a matter pertaining to the appreciation of evidence at the pre-charge stage and the appreciation and appraisal of evidence by the learned magistrate not be lightly interfered with by the High Court in exercise of its inherent powers under Section 482 Cr. P.C., especially when the impugned order cannot be said to be unreasonable or perverse on the face of it, supported as it is by all the three witnesses including the complainant.

(16) No other point was urged at the Bar and in view of what has been stated above the petition fails and is consequently dismissed, except that instead of non-bailable warrants directed to be issued to the petitioner vide order dated 24-10-1983 only summons be issued to him for the time being.


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