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2004 DIGILAW 459 (JHR)

Jawahar Lal Viswakarma v. State of Jharkhand

2004-04-28

HARI SHANKAR PRASAD

body2004
Order This application under Section 482 Cr. P.C. has been filed for quashing the order dated 24.5.2003 passed in Cr. Revision No. 86/2003 by which learned Sessions Judge rejected the prayer for discharge of the petitioners under Section 245 Cr. P.C. 2. Prosecution case in brief is that the complainant-opposite party no. 2 filed a complaint petition stating therein that on 21.6.1997 at about 4 PM he came to place of occurrence, which is Khata no. 40, plot no. 51, Mauja Baramajiya and saw that one Sisam tree, standing on the said plot, has been cut down and the accused-petitioners were present there with deadly weapons. The complainant-opposite party no. 2 made a protest; whereupon accused-petitioners abused him and threatened to assault. The complainant reported the matter to the police and the police came to the place of occurrence and saw the Sisam tree cut on the said plot and police assured the complainant to take legal action against the accused persons and due to assurance of police as well as marriage of his nephew on 27.6.97, the complainant went home and after marriage he came to the police station but he was asked to go to S.P. and then he went to S.P., who told him that said cut Sisam tree has been seized. When complainant came to know that no FIR has been lodged, then he filed a complaint petition on 1.7.97, which was registered as complaint case No. 200/97. Complainant was examined on SA and thereafter the learned court below took cognizance of offence under Section 379 IPC and issued summons. The petitioners appeared in the court and filed application for discharge but his prayer for discharge was rejected. 3. Learned counsel appearing for the petitioners submitted that from the complaint petition as well as from the evidence of witnesses, no prima facie case under Sections 379/506/147 IPC is made out against the petitioner and thereby no charge is fit to be framed against the petitioners accused. Learned counsel further submitted that complaint petition was filed after an inordinate delay of 11 days and this shows the falsity of the case. Learned counsel further submitted that complaint petition was filed after an inordinate delay of 11 days and this shows the falsity of the case. It is also submitted that P.O. land, comprising of land and house, belongs, to C.H. (Pvt.) Ltd. and the same has been given in possession of accused Rit Lall Verma by C.H. Pvt. Ltd., who has been coming in possession of the same, which is evident from the evidence of C. W. 3, Jugal Ram and moreover, office of Bhartiya Janta Party is situated in the same plot. Further, there are two civil suits pending between the parties bearing T.S. No. 23/91 and T.S. No. 2/96 with respect to the land in question and in that view of the matter, the present case has been falsely instituted against the accused persons with a view to harass the accused persons. 4. It will be clear from the evidence of complainant's witnesses• that land in question never belongs to alleged vendor Ramchandra Bhadani, rather it belongs to C.H. Pvt. Ltd. and further that there is no mention of Sisam Tree in the sale deed of 1988 said to have been executed by Ramchandra Bhadani in favour of Sunanda Devi and Manju Devi and, therefore, the entire case of the complainant stands falsified. Further, there is no specific allegation against the petitioners. It was also pointed out that for the same P.O. land, complainant had earlier filed Complaint Case no. 348 of 1992 against some accused persons and the case ultimately ended in acquittal and this shows that the complainant is in the habit of filing the complaint case. 5. On the other hand, learned counsel appearing for the O.P. No.2, submitted that pendency of civil suits cannot be a ground for disposal of criminal case as during the pendency of civil suit, criminal case can also be instituted. In this connection, learned counsel placed reliance upon 2002(1) JCR 433 , in which it has been held that where dispute is of civil nature and criminal case is not lie, is not tenable. It was further held that criminal case cannot be thwarted because a civil case is also maintainable. The learned counsel further placed reliance upon 2002(1) East. Cr. It was further held that criminal case cannot be thwarted because a civil case is also maintainable. The learned counsel further placed reliance upon 2002(1) East. Cr. C. 230 (Jhr.), in which it has been held that Magistrate considered the evidence of witnesses, which supported the case of the complainant and the trial court has only to see whether prima facie case is made out or not and no illegality was found in the order and, therefore, quashing was not allowed. Reliance was further placed upon 1999(2) East Cr. C. 810 (Pat), wherein it was held that where a society constitutes a case of civil nature and complainant is alleged to have given exaggerated version, still cognizance cannot be allowed. 6. In the instant case, admittedly two civil suits are pending with respect to the same P.O. land in between the parties and admittedly these title suits are pending with respect to the title and possession etc. over the P.O. land. Here there is no such case that the petitioner is said to have committed theft of any article from the conscious possession or from the house of opposite party no. 2, but question is regarding allegation of cutting of a tree standing on the P.O. land and with respect to the same P.O. land, two title suits are pending with respect to possession of P.O. land in between the parties and it is also alleged that said cut wood has been seized ay the police but no FIR has been instituted by the police. Further from the list of witnesses given in the complaint petition, it does not appear that any police personnel has been made a witness to prove the fact that Thana people came and seized the cut wood. Hence there is only conjecture and surmises and nothing else and, therefore, in the facts and circumstances of the case, when there is property dispute, allegation by one against the other and vice versa is invariably levelled just to harass the other side and to show the possession over the property in question. 7. In that view of the matter, this application under Section 482 Cr.P.C. is allowed and the impugned order dated 24.5.2003 is hereby quashed.