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2005 DIGILAW 1097 (PNJ)

Tirath Ram v. State Of Punjab

2005-10-19

SURYA KANT

body2005
Judgment Surya Kant, J. 1. Criminal Misc. Nos. 17485-M of 1997 and 48969-M of 2002 involve common questions of law and facts and are, therefore, being disposed of by a common order. For the sake of brevity, the facts are taken from Crl.M. No. 17485-M/1997. 2. Thirteen petitioners are before this Court invoking its jurisdiction under Section 482 Cr.P.C., for quashing of the criminal complaint dated 15.10.1996 (Annexure P4) titled as Joginder Pal v. Dharam Pal and others under Sections 323, 506, 427, 447, 148, 149 IPC, as well as the order dated 4.7.1997 (Annexure P5) passed by the learned JMIC, Dasuya whereby they have been summoned to face trial in the aforesaid complaint. 3. The controversy has originated out of a dispute pertaining to land measuring 12 kanals 15 marlas in Khewat No. 7, 55, khatauni No. 8 and 22 and Kharsa No. 438/435, situated in the revenue estate of Village Bhatoli, Tehsil Mukerian, District Hoshiarpur. Out of the aforementioned, land measuring 12 kanals 6 marlas was purchased by the complainant-respondent (Joginder Pal) by way of registered sale deed dated 14.2.1995, who also claimed to have taken possession thereof. On the other hand, petitioner No. 1 Tirath Ram filed a suit for declaration to the effect that he was owner in possession of the entire land measuring 12 kanals 15 marlas and he also soght permanent injunction restraining the defendants (which included Joginder Pal) from interfering into his possession and/or to restrain them from dispossessing the plaintiffs forcibly except in due course of law. In the said civil suit an interlocutory order dated 8.8.1996 (Annexure P1) was passed by the civil court restraining the respondent-complainant and other defendants from interfering in the petitioners possession over the suit land. The respondent-complainant preferred an appeal against the aforesaid order but the same was dismissed by the learned District Judge, Hoshiarpur vide order dated 21.11.1996 (Annexure P2). The application moved by the respondent-complainant regarding correction of khasra girdawari was also turned down by the Assistant Collector Ist Grade, Talwara and the said order was upheld by appellate Court as well vide its order dated 26.3.1997 (Annexure P3). 4. While the aforementioned civil suit filed by the petitioner No. 1 was pending, the impugned complaint (Annexure P4) under Sections 323, 506, 427, 447, 227, 148, 149 IPC, was filed by the respondent-complainant against the petitioners. 4. While the aforementioned civil suit filed by the petitioner No. 1 was pending, the impugned complaint (Annexure P4) under Sections 323, 506, 427, 447, 227, 148, 149 IPC, was filed by the respondent-complainant against the petitioners. In the said complaint the respondent-complainant has averred that he had taken possession of the land measuring 12 kanals 6 marlas which he purchased on 14.2.1995 and that the petitioner No. 1 alongwith his co-accused with tractor No. PB 21 2067 driven by Naresh Kumar (petitioner No. 6) and who were alleged having deadly weapons like axes and dangs came on 3.9.1996 at about 2.30 p.m., and "started ploughing the fields and they destroyed the entire standing crop of cost of Rs. Not less than Rs. 16000/-." The complainant further averred that the complainants mother namely Satya Devi and his wife Kanchan Bala asked the accused person not to commit unlawful act but they were adamant and "they gave slaps to Satya Devi and Kanchan Bala and all accused dragged Satya Devi and Kanchan Bala from their hairs, the occurrence was witnessed by the entire Panchayat of the village." 5. In support of the allegations made in the complaint, apart from deposition made by the respondent-complaint himself, he examined his mother Satya Devi as PW3 and his wife Kanchan Bala as PW5 and Dev Raj, PW2 and Sada Ram as PW4. Certain documents were also relied upon by him. Upon an appreciation of evidence led by the complainant, learned JMIC, Dasuya vide order dated 4.7.1997 summoned the petitioners in the impugned complaint. 6. At this stage a brief reference to the facts giving rise to be connected petition may also be made. In the said petition, quashing of criminal complaint dated 27.11.2000 titled as Raj Kumar son of Joginder Pal v. Raj Kumar son of Dharam Pal and others, under Sections 324, 447, 323, 324, 148, 149 IPC has been sought. The complainant in this complaint is thus son of respondent No. 3-complainant (Joginder Pal) in the first complaint referred to above. Three of the petitioners namely Raj Kumar, Bobby Sharma son of Dharam Pal and Prem Kumari wife of Dharam Pal are obviously family members of petitioner No. 13 in the first case. The gravamen of allegations in the second complaint read as follows : - "3. Three of the petitioners namely Raj Kumar, Bobby Sharma son of Dharam Pal and Prem Kumari wife of Dharam Pal are obviously family members of petitioner No. 13 in the first case. The gravamen of allegations in the second complaint read as follows : - "3. That Tirath Ram relative of the accused file a civil suit against father of complainant and others which was decided the court of Shri Manjinder Singh, Civil Judge, Jr. Division, on 8.12.1999 in favour of the father of the complainant and against Tirath Ram. Appeal of the same was preferred by Tirath Ram and was dismissed by the Honble Court of Shri C.D. Gupta, Additional District Judge, Hoshiarpur on 11.5.2000 regarding ownership. 4. ........Accused Raj Kumar and Bobby Sharma started to cut the trees of Sareen, and complainant obstructed them from doing unlawful act and on this accused Raj Kumar gave daat blow on right leg. Accused Bobby Sharma gave reverse side of daat blow on forehead, accused Sat Pal gave dang blow on knee of left hand, while accused Raj and Prem Kumar gave dang blows on abdomen of the complainant. Accused Sat Pal clutche the hands of the complainant and accused Bobby Sharma give daat blow on the head of the complainant, but the complainant shook down his head and Sat Pal received the injury on his head from Bobby Sharma. On this all the accused ran away from spot alongwith weapons, the occurrence was witnessed by Kishan Chand son of Hukam Chand, r/o village Bhatoli and Mangat Ram s/o Nathu Ram, Vill. Bhatoli, P.S. Hajipur, Tehsil Mukerian, Distt. Hoshiarpur. 5. That complainant got admitted in Civil Hospital, Hajipur where he was got medically legally examined and remained admitted there for three days". 7. In the second case also, complainant (Raj Kumar) himself deposed as PW1 and also examined one Kishan Chand as PW2 as well as Dr. Balwant Singh (PW3), who had conducted medico-legal examination and found four injuries on the person of the complainant. Relying upon the said evidence, learned JMIC, Dasuya vide his order dated 9.2.2002 (Annexure P7) summoned the petitioners (of the second case) in the impugned complaint (Annexure P6). 8. Heard learned counsel for the parties and pursued the record. 9. Sh. Balwant Singh (PW3), who had conducted medico-legal examination and found four injuries on the person of the complainant. Relying upon the said evidence, learned JMIC, Dasuya vide his order dated 9.2.2002 (Annexure P7) summoned the petitioners (of the second case) in the impugned complaint (Annexure P6). 8. Heard learned counsel for the parties and pursued the record. 9. Sh. Kang, learned counsel for the petitioners vehemently contends that the impugned complaints have originated out of the land dispute and from a plain reading of the same, it is apparent that both the alleged occurrences have taken place in relation to possession over the land in dispute. According to him, the complainants have made totally false and factually incorrect averments to the effect as if Joginder Pal (complainant in the first case) was in possession of the land in dispute and/or the petitioners tried to dispossess him from the same. Sh. Kang has made detailed reference to the others Annexures P1 and P2 passed by the Civil Courts as well as the final judgment dated 11.5.2000 passed by the Additional District Judge, Hoshiarpur in the appeal titled as Tirath Ram v. Harbans Lal, in para 12 whereof, the petitioners have been held to be in possession of the land in dispute. Sh. Kang thus contends the having regard to the categorical findings returned by the civil Court regarding the petitioners possession over the suit land, the very foundation of the impugned complaints stands demolished and the same being an obvious counterblast to the civil proceedings, are an abuse of the process of law. Sh. Kang has further argued that in the first complaint the allegations regarding giving slaps to the mother and wife of the complainant are totally vague and wild with no specific descriptions. Similarly, he has attacked the second complaint on the ground that the injuries allegedly suffered by Raj Kumar (complaint) are not simple in nature but self-inflicted as well. 10. on the other hand Sh. Similarly, he has attacked the second complaint on the ground that the injuries allegedly suffered by Raj Kumar (complaint) are not simple in nature but self-inflicted as well. 10. on the other hand Sh. Parveen Kumar, learned counsel for the complainant- respondent vehemently contends that though at the time of filing of the first complaint by Joginder Pal, there was a prima facie finding regarding possession over the suit land by the civil Court in favour of the petitioner, however, the said suit was dismissed by the civil Court and that the occurrence took place before their suit was partly decreed by the learned first Appellate Court vide its judgment dated 11.5.2000, referred to above. He further contends that even if the petitioners are assumed to be in possession of the land is dispute, yet one of the offences alleged against them in both the complaints is under Section 323 and/or 324 IPC which is independent to their inter-se possessory dispute. According to him, having regard to the nature of allegations made in the impugned complaints, it may not be desirable for this court to form any conclusive opinion regarding the petitioners innocence or otherwise. He has also referred to a complaint (Annexure R1) purported to have been made by Joginder Pal before the Gram Panchayat whereupon the possession of Joginder Pal over the land in dispute was accepted by the Gram Panchayat and the petitioners were advised not to interfere with the same. 11. On a plain reading of both the complaints, it appears that their foundation lies in the dispute regarding possession over the land in question, and it is a fact that civil Court has held to be in possession of the suit land. That apart, the civil Courts finding that the petitioners are in possession of the land in dispute and could not be dispossessed except in due course of law, has attained finality and is binding upon both the parties. However, the question which requires determination is as to whether or not the alleged offences attracting Section 323 IPC (in the first complaint) and 324 IPC (in the second complaint) were committed by the petitioners in order to protect their possession over the land in dispute and/or they were aggressors, is a disputed question of fact and can be answered only appreciating the evidence on record. No conclusive opinion in that regard can be formed by this Court in exercise of its inherent jurisdiction under Section 482 Cr.P.C. Further, it also appears that whereas the petitioners have been found to be in possession of land measuring 12 kanals 15 marlas, the land purchased by Joginder Kumar is 12 kanals 6 marlas only. There are thus more than one disputed questions of fact which need to be gone into by the learned Judicial Magistrate. 12. The law in relation to quashing of criminal proceedings in exercise of inherent powers under Section 482 Cr.P.C., is well settled. In the case of R.P. Kapur v. State of Punjab, AIR 1960 SC 866, which has been recently reiterated by their Lordships of the Supreme Court in Zhandu Pharmaceutical Works Limited v. Mohd. Sharaful Haque and Another, (2005) 1 SCC 122 : 2004(4) RCR(Crl.) 937 : 2005(1) Apex Crl. 75 (SC) the following para-meters for such interference have been laid down :- (i) where it manifestly appears that there is a legal bar against the institution or continuance e.g. want of sanction; (ii) where the allegations in the first information report or complaint taken at its face value and accepted in their entirety do not constitute the offence alleged; (iii) where the allegation constitute an offence, but there is no legal evidence adduced or the evidence adduced clearly or manifestly fails to prove the charge". 13. In order to bring the case within any of the aforementioned exceptions, the allegations as contained in the impugned complaints (Annexure P4 in the first case and Annexure P6 in the second case) need to the read and accepted on their face value. Some of the allegations, relevant part of which had already been extracted above, do suggest that it would not be expedient and/or desirable for this court to discard or disbelieve the same at this stage. There can be thus no escape but to hold that the trial is inevitable. However, this Court cannot be oblivious of the fact that the petitioners possession over the land in dispute has been established and upheld by the civil Court. The possibility of inflated version and/or false accusation, at least against some of the petitioners, cannot be ruled out at this stage. However, this Court cannot be oblivious of the fact that the petitioners possession over the land in dispute has been established and upheld by the civil Court. The possibility of inflated version and/or false accusation, at least against some of the petitioners, cannot be ruled out at this stage. Therefore, in order to strike balance and protect the petitioners from undue harassment, this petition is disposed of with the following directions :- (i) All the 13 petitioners who are accused in the first complaint and 4 petitioners who are accused in the second complaint are directed to surrender before the learned Judicial Magistrate and furnish requisite bail bonds to this satisfaction, upon which they shall be admitted to bail. (ii) The petitioners in both the cases i.e. who are accused in both the complaints, if so desired, shall be at liberty to move application for grant of exemption from their personal appearance, however, with an undertaking that (i) they shall be represented through a counsel; (ii) they shall not delay/stall the trial proceedings in any manner; (iii) they shall not dispute their identity as accused; and (iv) they will have no objection if the evidence is recorded in the presence of their counsel. If any such application is moved by any one of them, the trial court is directed to grant exemption from personal appearance, however, subject to any other condition which the trial court may like to impose upon such applicant(s). (iii) Petitioners will be at liberty to raise all the pleas before the learned Judicial Magistrate and the same shall be considered in accordance with law. (iv) Having regard to the nature of the allegations, the Sub Divisional Judicial Magistrate, Dasuya is directed to entrust both the complaints to one Court so that both the complaints can be tried together. (v) Keeping in view the fact that the complaints are pending for a reasonably long period, the learned Judicial Magistrate to whom both the complaints are entrusted is directed to dispose of the same expeditiously and preferably within six months from the date of receipt of a copy of this order. Disposed of.