Ratnatraya Heat Exchangers Ltd., Gurgaon vs Lokendar Nath Sharma

V.K. Jhanji, J.

This revision petition has been directed against order dated 19.5.1994 passed by the Additional Chief Judicial Magistrate, Gurgaon, whereby Lokendar Nath Sharma, respondent No. 1 who was sent to stand trial under Sections 452/427/420/506 IPC in FIR No. 178, dated 22.2.1994, P.S. Sadar, Gurgaon, has been discharged.

It is the case of the petitioner that petitioner company namely Ratnatrya Heat Exchangers Limited is engaged in the manufacturing of Radiators and automobile parts. The factory premises where the aforesaid items are being manufactured, is situate at No. 468469, Udyog Vihar, Phase 3, Dundahera. The same was taken on rent from its owner namely Lokendar Nath Sharma on payment of Rs. 12000/ per month as rent. The owner of the premises was impressing upon the company to purchase the premises at a very exorbitant price to which the company showed its inability. The owner of the premises started threatening the petitionercompany to dispossess it forcibly. Apprehending forcible dispossession, the company filed a suit for permanent injunction restraining Lokendar Nath Sharma from dispossessing the petitioner forcibly from the premises. In the said suit, the Sub Judge 1st Class, Gurgaon, restrained Lokendar Nath Sharma from dispossessing the company except in due course of law. It is further the case of the company that after the grant of adinterim injunction on 5.1.1994, the owner of the said premises sold the premises to one Paramjit Singh Bahia, partner of M/s. Kenny Exports, B1/11, Basant Vihar, New Delhi vide registered saledeed dated 7.1.1994. Since the company was running the business in the aforesaid premises, the possession of the premises could not be delivered to the subsequent vendee. In order to take possession from the petitionercompany, Lokendar Nath Sharma and Paramjit Singh accompanied by 50 persons came to the factory premises on 9.1.1994 at about 5.30 P.M. and threatened the officials of the company to vacate the premises or they would be thrown out forcibly. They also threatened that any person trying to resist them would be done to death. The Company showed the injunction order and requested them not to interfere, but Lokendar Nath Sharma and others entered the factory premises and started throwing the raw materials such as Radiator, furniture and Air Conditioners etc., outside the factory premises and thereby caused extensive damage to the goods owned by the company. Again on the next day, i.e. 10.1.1994, Lokendar Nath Sharma and Paramjit Singh along with 2025 persons came to the factory premises and the goods of the company were thrown out forcibly. The officials of the company though made oral complaints as well as sent various telegrams to various police authorities and other officers, but no action was taken in the matter. The company finding no response moved an application before the trial Court for the appointment of a Local Commissioner. The Local Commissioner inspected the premises on 11.1.1994 and found various articles lying scattered in the compound of the factory premises and on the road outside the factory premises. Local Commissioner also observed that the machinery of the company was lying scattered in such a manner as if the same had been thrown without taking any care of the same. It is further the case of the company that a complaint in writing was made to Deputy Inspector General of Police, Gurgaon, and on the basis of said complaint, a case was ordered to be registered against the accused persons under Sections 452/427/120B and 420, IPC. In pursuance of the registration of the case, the police recorded the statements of various persons under Section 161 Cr.P.C. including that of the accused persons and ultimately presented the case against Lokendar Nath Sharma, while showing the name of Paramjit Singh in column No. 2.

The grievance of the petitioner is that instead of framing charge against the accused, the learned Additional Chief Judicial Magistrate, Gurgaon vide order dated 19.5.1994 discharged the accused on the ground that no sufficient grounds are made out that the accused had committed any offence warranting the framing of charges.

It has been contended by the learned counsel for the petitioner that the findings recorded by the learned Magistrate are based on surmises and conjectures. He contended that the trial Magistrate was not to view the case from the angle of conviction or acquittal at the time of framing of the charges. The accused was required to be proceeded against in case a prima facie case had been made out against him. In answer to these submissions, Mr. R.S. Ghai, Sr. Advocate, counsel for respondent No. 1 contended that since the Civil Court is seized of the matter, the trial Magistrate was right in discharging the accused. He further contended that in view of agreed order of this Court dated 11.7.1995 in C.O.C.P. No. 1320 of 1994, the revision petition deserves to be dismissed.

After hearing the learned counsel for the parties, I am of the view that the order under revision deserves to be quashed. The learned Additional Chief Judicial Magistrate, Gurgaon had discharged the accused primarily on the ground that the complaint in question is an offshoot of the civil litigation between the parties and since it is yet to be decided by the Civil Courts as to the manner in which the company was dispossessed, the accused cannot be taken to have committed any offence punishable under Section 452/427/420/506 and 120B, IPC. The learned trial Magistrate was further of the view that the mere allegations that the accused trespassed into the factory premises and caused damage and extended threats to the officials, do not constitute the offences as alleged, particularly when there is no specific allegation in the complaint as to whom the accused had extended threats. He was further of the view that in the complaint it was nowhere mentioned that as to what luggage was damaged, causing loss to the company of more than Rs. 50/. For discharging the accused, he also took into consideration the delay in lodging the F.I.R. In my view, none of the grounds which have been taken into consideration for discharging the accused could be made the basis for the same. An accused earns a right of discharge under Section 239 Cr.P.C. if the charges against the accused appear to the groundless. For exercising powers under Section 239 Cr.P.C. the Magistrate is required to consider the police report and the documents sent with it under Section 173 Cr.P.C., examination of the accused, if any, and after giving an opportunity to the prosecution and the accused of being heard, to discharge the accused if the charge against him is considered groundless. In the present case, in the concluding paragraph the learned Magistrate discharged the accused by saying that there are "no sufficient grounds to presume that the accused has committed any offence warranting the framing of charge against him". The trial Magistrate gave no findings that the charges against the accused are considered groundless. It appears that while passing the order, the trial Magistrate instead of keeping in view Section 239 Cr.P.C. kept in view Section 227 Cr.P.C. Under Section 227 Cr.P.C., it is only the Court of Session who can order the discharge of the accused if he finds that there are no sufficient grounds for proceeding against the accused. The power of the Court of Session under Section 227 Cr.P.C. is not identical to those of Magistrate under Section 239 Cr.P.C. This Court in State of Punjab v. Narinder Singh and others, 1991(1) RCR 226 , on comparison of Section 227 Cr.P.C. held "In Section 239 Cr.P.C., the words used are groundless. To my mind a reading of Sections 227 and 239 Cr.P.C. gives an impression that a Magistrate has much less powers to discharge than the Sessions Judge. The Sessions Judge is entitled to discharge if he does not find that there are sufficient grounds for proceeding which means that even if there are grounds against the accused but these may not be sufficient for proceeding. Under Section 239 Cr.P.C. the Magistrate is entitled to discharge an accused if the charge against him is groundless meaning thereby that there is absolutely no case against him. This position excludes the situation where there are some grounds which may not be sufficient for proceeding. To hold that the charge is groundless, the situation can only be when there is no substance in the charge but to hold that there are not sufficient grounds, this may not be the situation. There may be some grounds and the charge may not be groundless but these grounds may not be sufficient for proceeding. Agreeing with the trial Judge that the provisions applicable to him were under Section 239 Cr.P.C. it is not clear how the learned trial Judge assumed that his powers are wider than the powers vested in Sections Judge under Section 227 Cr.P.C. To my mind his power for discharging under Section 239 Cr.P.C. are much narrower than the powers under Section 227 Cr.P.C." I am further of the view that learned Magistrate is wrong in finding that the allegations that the accused had trespassed and caused damage would not constitute the offences, particularly when in the complaint it was not mentioned as to what luggage was damaged, causing loss of more than Rs. 50/. Had the Magistrate cared to read the report filed along with the challan in which there was specific mention regarding threats, throwing of raw materials like Radiator, furniture and Air Conditioner etc. outside the factory premises, such a finding would not have been recorded. Simply because the price of all the articles is not mentioned would not ipsofacto give rise to the conclusion that the damage was not more than Rs. 50/. The trial Magistrate was also not right in saying that the complainant no where mentioned in the complaint that the accused had entered into the factory premises with an intention to commit trespass and that the present case is an offshoot of the civil suit. Once the accused persons had committed the offence while trespassing into the factory premises and also causing lot of damage to the goods, the same would constitute a criminal act for which they are liable to be prosecuted under the Indian Penal Code. The remedy under the civil litigation determines only the civil rights whereas the commission of an offence is punishable under the Penal Code and also that no person is above law and cannot take the same in his own hands. At the stage of framing of charges, a Magistrate had only to see whether a prima facie case regarding the commission of certain offences is made out. The question whether the charges will eventually stand proved or not can be determined only after evidence is recorded in the case. He is not required to pass an order discharging the accused on consideration of case on merits at the stage of framing of charges without affording an opportunity to prosecution to adduce evidence.

The contention of counsel for respondent No. 1 that in view of order passed in COCP No. 1320 of 1994 the petition deserves to be dismissed, is without any merit. In the contempt petition, the primary allegation made by the company was that the respondents had illegally dispossessed the petitionercompany despite the grant of injunction order by this Court. When the contempt petition came up for hearing, it was brought to the notice of the learned Judge that the appeal filed against the order of the trial Court passed on an application under JUDGMENT 39, Rules 1 and, C.P.C. was yet to be decided and in that context, respondent No. 2 namely, Paramjit Singh who was present in Court, gave an undertaking by way of separate statement that in the eventuality of appeal being dismissed, he shall surrender the possession of the premises in question to the petitionercompany within a day. It was on the basis of undertaking given by respondent No. 2 that the contempt petition was disposed of. Counsel for respondent No. 2 at the hearing of the petition stated that the appeal was decided in favour of the company and on decision of the appeal, possession was delivered to the company. In this view of the matter, I have not been able to appreciate as to how the order passed in the contempt petition is helpful for sustaining the order of discharge.

Resultantly, this revision petition is allowed and the order under revision is quashed. The learned trial Magistrate is directed to proceed with the case from the sate of framing of charges in accordance with law.