K D KOHLI Vs. K K SONDHI

JUDGEMENT

(1.) This Criminal Reference made by Shri O. N. Vohra, Additional Sessions Judge, Delhi arises out of an application under Sections 435 and 438 Criminal Procedure Code filed by the petitioner Shri K. D. Kohli against the order dated 11/9/1967 made by Shri N. C. Jain, Sub Divisional Magistrate, Delhi whereby the preliminary objection raised on behalf of the petitioner to the maintainability of the proceedings under section 145 Criminal Procedure Code . was dismissed. The learned Additional Sessions Judge has recommended that the proceedings pending before the learned Magistrate under Section 145 Cr. P. C. be quashed.

(2.) The facts as reported by the learned Judge are that on 22/12/1965 Shri K. K. Sondhi Manager, Gwalior Potteries filed a complaint in the Court of Shri N. L. Kakkar, Sub Divisional Magistrate, Parliament Street, New Delhi alleging that the Gwalior Potteries of which he was the Manager, had godowns and stores in the same premises in which the premises of Messrs. Printers house were located in the building known as Sciendia House, New Delhi, and that the door of his premises was at the back and opened at a place where a canteen was being run by the authorities of the Delhi Transport Undertaking and that on the ground floor there was a room measuring about 7 feet X 17 feet which was separated by a wooden partition from the premises of Messrs. Printers House. He alleged that there was a Do-chatti and one other big room to which access could be had from the Do-chatti and that a wooden staircase had been provided for going to the Do-chhatti and the connected room from the room on the ground floor. He also alleged that on 19/12/1965 he was .informed by one Shivraj, an employee of the Madhya Pradesh Emporium that Shri K. D. Kohli, Shri O. P. Mohan, Shri Braham Datt and Shri Rishi of the Printers House had illegally and forcibly taken possession of the premises comprising the ground floor room and Do-chhatti and that the door of the entrance had been bolted from inside.

(3.) On this complaint the learned Magistrate who had by then succeeded Shri N. L. Kakkar passed a preliminary order under Section 145(1) Criminal Procedure Code . on 1/10/1966. The petitioner raised a preliminary objection that the proceedings had become infructuous and that no relief could be given to the complainant in as much as the preliminary order had been passed after more than two months of the alleged dispossession of the opposite party. The learned Magistrate, however, opened that the preliminary order could not have been passed earlier because proceedings in the case had been stayed by the learned Sessions Judge, Delhi on 29/12/1965 and the stay order had remained in force till shortly before the date on which the preliminary order was passed by him. In support of his view the learned Magistrate relied upon a Division Bench judgement of the Madras High Court in Chunchu . Narayana and others v. Karrapati Kesappa