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1988 DIGILAW 102 (MAD)

M. John Basco v. Selvaraj

1988-02-23

PADMINI JESUDURAI

body1988
Judgment The petitioners against whom a preliminary enquiry is pending before the Judicial II Class Magistrate, Tirupattur in P.R.C.No.6 of 1984 for offence under Ss.147, 447, 427 and 379. I.P.C. on a Complaint instituted by the respondent herein, invoke the inherent powers of this Court under S.482, Crl. P.C. for quashing the above proceedings. 2. The Complaint is based on the allegation that on 23.11.1983 the petitioners entered into certain lands in the possession of the respondent and harvested cholam crops, gathered the cholam and stalks in gunny bags; in all valued at Rs.4,000 and also removed a sheep and a lamb from the house of the respondent as also two vessels; in all valued at Rs.650. The occurrence is said to have taken place in S.Nos.728,728/1,729/2 and 729/A1 in Pudukkottai Village. 3. According to the petitioners, the father of the first petitioner purchases the above property from’ one Anthonyammal, the mother of the respondent herein, by a registered sale deed dated 22.12.1959. The present respondent and his father Kannappan alias Arokiaswamy attested the above sale deed. Thereafter, the first petitioner’s father was in peaceful possession and enjoyment of the land. While so, in 1977 the respondent, his father and brothers tried to. interfere with the possession of the first petitioner’s father. Thereupon, the first petitioner’s father filed O.S. No.108 of 1977 in the court of the District Munsif, Tirupattur to restraint the respondent, his father and his brothers from interfering with his possession and enjoyment of the same property. The first petitioner’s father also filed I. A.No.487 of 1977 for interim injunction. Interim injunction was granted on 29.7.1983. The first petitioner’s father died on 25.1.1980. Meantime the respondent’s father filed O.S. No.220 of 1977 before the District Munsif, Tirupathur for a declaration that the sale deed executed by his wife in favour of the father of the first petitioner was sham. He has also filed an application for temporary injunction and temporary injunction also was granted. 4. Since there was apprehension of breach of peace between the parties regarding the enjoyment of this property, the Taluk Executive Magistrate,: Tirupathur commenced proceedings under S.145, Crl. P.C. in M.C. No. 1 of 1980 and after enquiry found that the land was in the possession of the first petitioner herein, an order in his favour was passed. The respondent unsuccessfully tried to have the above order set aside by filing Crl. P.C. in M.C. No. 1 of 1980 and after enquiry found that the land was in the possession of the first petitioner herein, an order in his favour was passed. The respondent unsuccessfully tried to have the above order set aside by filing Crl. R.C.No. 31 of 1981 before the Sessions Court, North Arcot District at Vellore and again by filing Crl.M.P.No.1749 of 1983 before this Court. In this state of affairs, the present Complaint has been filed by the respondent, on the allegation that he is in possession of the very same property and is residing in S.No.728 and had raised cholam crops in the remaining items of property and the petitioners had cut and removed the cholam and also a sheep and lamb and two vessels. 5. Thiru V. Gopinath, learned counsel for the petitioners contended that suits were pending before the civil courts, that final adjudication regarding title and possession had to be made only by the Civil Court, particularly when the Executive Magistrate had found that the first petitioner was in possession and the order of the Executive Magistrate had been upheld both by the Court of Sessions as well as by this Court and that the Complaint for offences, which call for a specific finding regarding possession of the property would be beyond the scope of the criminal court and that on flimsy allegations as many as 19 persons have been dragged to the criminal court on the private Complaint filed by the respondent and this amounted to harassment and abuse of the process of the criminal Court. The proceedings, therefore, have to be quashed. 6. Per contra, Thiru D. Krishnan, learned counsel for the respondent, contended that the respondent’s father had filed O.S.No.220 of 1977 before the District Munsif’s Court, Thirupathur and there was an interim order in his favour, which was still in force, that after the first petitioner’s father died on 25.1.1980 the suit was not pursued by the first petitioner, that the allegation of the respondent that he was in possession of the disputed property must be true and that, therefore, the proceedings should not be quashed. The respondent should be given an opportunity to prove his case and it would be for the trial Court to decide, whether the respondent was in possession or not on the evidence placed before it. 7. The respondent should be given an opportunity to prove his case and it would be for the trial Court to decide, whether the respondent was in possession or not on the evidence placed before it. 7. Though the powers of this Court to interfere in prosecutions, which are yet to commence, by quashing them, under S.482, Crl. P.C, should be rare, still in appropriate cases, this Court should not hesitate to exercise its inherent powers in order to prevent abuse of the process of Court. In the instant case, the father or the first petitioner had filed O.S.No. 108 of 1977 against the respondent, his father and brothers. It is significant that the father of the respondent as well as the respondent himself, had attested the sale deed executed by the mother of the respondent in favour of the father of the first petitioner. The Civil Court had granted interim injunction in I.A. No. 487 of 1977. That injunction had been in force till 25th January, 1980 when the father of the first petitioner died. It is true that the first petitioner did not immediately take steps to have himself impleaded as the legal representative and to continue the suit Whatever that, be the Civil Court on 29th July, 1983, had found that there was prima facie material to show that the father of the first petitioner was in possession of the property. Further, the Taluk Executive Magistrate had also found that the first petitioner was in possession of the property. The order of the Taluk Executive Magistrate, had been upheld both by the Sessions Court as well as by this Court. Learned counsel for the respondent contended that the interim relief granted to him in O.S.No.220 of 1977 by the District Munsif, Tirupathur is still in force. It is not known what exactly is the relief that has been granted to him. Whatever that be Courts had found that the father of the first petitioner and later the first petitoner himself had been in possession of the property. Under these circumstances, it would not be proper to take matters to the criminal court for offences which first require a finding of possession of the Complainant. Whatever that be Courts had found that the father of the first petitioner and later the first petitoner himself had been in possession of the property. Under these circumstances, it would not be proper to take matters to the criminal court for offences which first require a finding of possession of the Complainant. The cholam crops and stalks are said to have been raised by the respondent and the sheep and the lamb and also two vessels are said to have been removed from the house in Survey No.728/1 said to be in the possession of the respondent. As already indicated by me earlier, Courts had found that there was prima facie material to show that the first petitioner’s father and later the first petitioner were in possession of this property. The matter was pending final adjudication in the civil Court Under these circumstances, the trial for offences, which require first a finding regarding possession of the dispute property, should not be allowed to continue in a criminal Court. It would be sheer abuse of the process of the criminal Court. I have, therefore, no hesitation in quashing the proceedings. 8. In the result the petition is allowed and the proceedings in P.R.C.No.6 of 1984 now pending before the Judicial Second Class Magistrate, Tirupathur, North Arcot District, are quashed.