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2002 DIGILAW 1516 (RAJ)

Gurcharan Lal v. The State of Rajasthan

2002-09-02

H.R.PANWAR

body2002
JUDGMENT 1. - This criminal misc. petition under section 482 Criminal Penal Code is directed against the order dated 6.6.1997 pas ,ed by Additional Sessions Judge No. 1, Sriganganagar in Criminal revision No. 63/94 whereby the order of Trial Court dated 1.9.1994 taking cognizance was set aside. 2. Briefly stated facts to the extent they are relevant and necessary for decision of this criminal misc. petition are that petitioner-Gurcharan Lal lodged an FIR No. 345 on 6.7.1991 against private respondents No. 2 to 4 for offences under section 454 & 380 IPC alleging therein that on 2.7.1991 the private respondents broke the shutter of the house and entered inside the house, took out luggage and threw the same out of the house. The house in subject-matter is situated at 5 Public Park, Sriganganagar. After investigation, police filed negative final report. The complainant examined himself under section 200 Criminal Penal Code along with two other witnesses. The trial Court took cognizance on the basis of statements of the complainant's witnesses against the private respondents for offences noticed above vide order dated 1.9.1994 against which the private respondents filed a criminal revision before Additional Sessions Judge No. 1, Sriganganagar. The learned Additional Sessions Judge by the order impugned dated 6.6.1997 allowed the revision petition and set aside the order taking cognizance dated 1.9.1994. 3. I have perused the order of the revisional Court and carefully gone through the record of the trial Court. With regard to the property in dispute, there are several suits pending between the parties. A suit for partition of the property 5 Public Park, Sriganganagar was filed by one Manoj Kumar s/o Darshan Lal against Smt. Raj Kumari and eight others before the Court of District Judge, Sriganganagar. The petitioner is respondent No. 9 in the said civil suit. Another suit was filed by one Ravindra Kumar S/o Ramsharan Das against Shri Ramsharan Das and ten others with respect to the property 5 Public Park and 17 Gole Bazar situated at Sriganganagar for partition. The petitioner is defendant no. 8 in the said suit. From the averments made in the suit and the written statements filed by respective parties before the District Judge, Sriganganagar, it appears that originally the property in dispute was ancestral and of joint Hindu family. By a partition deed dated 31.3.1973. The petitioner is defendant no. 8 in the said suit. From the averments made in the suit and the written statements filed by respective parties before the District Judge, Sriganganagar, it appears that originally the property in dispute was ancestral and of joint Hindu family. By a partition deed dated 31.3.1973. The disputed property came in the share of one Smt. Rani Bai wife of late Shri Devi Dayal. Smt. Rani Bai is the mother of the petitioner. The petitioner is party to the registered partnership deed. The said partnership deed was executed between Smt. Rani Bai, Ramsharan Das respondent No. 2, Kirhsna Kumar, Gurcharan Lal the petitioner and one Darshan Lal. In the said partition deed, the petitioner's own share is disclosed as item No. 4 at page No. 4 of the said deed, which shows that shop No. 66 Salam situated at Kotwali Road, Gole Bazar, Sriganganagar and the property situated towards southern side of House No. 5 Public Park, which is in possession of Paras Ram and Om Prakash as tenants, came in the share of the petitioner. It is alleged that Smt. Rani Bai transferred her share in favour of respondent-Khushbeer Singh, who is son of respondent-Ramsharan Das and brother of respondent-Suresh Kumar. The dispute is raised with regard to part of the property which fell in the share of Rani Bai. Thus, there is a civil dispute with regard to possession of the disputed property. The petitioner alleged that he being a co-sharer was exclusively in possession of the property in which the respondents entered into and threw the luggage whereas the respondents' claim is that they are in possession of the property in respect of which the allegations of lurking trespass or house breaking is made by the petitioner. FIR lodged by the petitioner was investigated and police reached to the conclusion that the property was originally jointly owned by the parties and the respondents were in possession by virtue of the partnership deed and further there was transfer of share by Rani Bai in favour of respondent-Khushbeer Singh. 4. The revisional Court by a detailed order observed that petitioner and respondents are real brothers and the property in dispute was owned by their father. 4. The revisional Court by a detailed order observed that petitioner and respondents are real brothers and the property in dispute was owned by their father. The respondents claimed to be in possession of the property on the basis of registered partition deed and subsequent transfer of the property by Smt. Rani Bai in favour of the respondents. The suits failed are pending between the parties. There are clear averments that the properties are jointly owned and possessed by the parties. Thus, the petitioner himself cannot claim to be in exclusive possession of the property over which the allegation of trespass is levelled against the respondents. Be that as it may, if the property is jointly owned according to the stand of the petitioner then there cannot be the question of trespass. More so, the petitioner has not specifically alleged as to what type of luggage has been thrown out or taken away. The only allegation in the FIR is that luggage was thrown out. That being the situation, it cannot prima facie be said that the respondents have committed any theft. Therefore, the essential ingredients for lurking house trespass or house breaking in order to commit the offence of theft are lacking. 5. As an abdundant caution, I have carefully gone through the entire record of the case. Plaints and written statements are also on record. Having considered the entire material in its entirety, I am of the considered opinion that the conclusion arrived at by the revisional Court cannot be said to be erroneous, perverse or capricious. It is settled law that the inherent powers of the Court under section 482 Criminal Penal Code should be very sparingly and conscientiously exercised only when the Court comes to the conclusion that there would be manifest injustice or there would be abuse of process of the Court, if such power is not exercised. In the instant case, the parties are before the civil Court and their rights and title are the subject-matter of the civil Court. Thus, it cannot be said that in the event of non- interference, it would result in manifest injustice or there would be abuse of process of the Cotirt. In the instant case, the parties are before the civil Court and their rights and title are the subject-matter of the civil Court. Thus, it cannot be said that in the event of non- interference, it would result in manifest injustice or there would be abuse of process of the Cotirt. The case in hand is not of that nature where it would result in failure of justice or abuse of process of Court in the event of refusal to exercise the powers under section 482 Criminal Penal Code No case for interference is made out.In this view of the matter, I find no merit in this criminal misc. petition. Accordingly, it is dismissed.Petition dismissed. *******