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2005 DIGILAW 42 (RAJ)

Mahaveer Prasad v. State of Rajasthan

2005-01-06

H.R.PANWAR

body2005
Judgment H.R. Panwar, J.-By this miscellaneous petition under Section 482, CrPC, the petitioners seek setting aside of the Judgment and order dated 24.03.2003 passed by the learned Sessions Judge, Churu (for short, "the revisional Court" hereinafter), by which the revisional Court allowed the revision petition filed by complainant-respondent No. 2 and set-aside the order dated 04.06.2001 passed by the Judicial Magistrate, Sardarshahar (for short, "the trial Court" hereinafter) and remanded the case to the trial Court for deciding the matter as per law after hearing the parties. 2. The facts of the case, relevant and necessary for decision of this miscellaneous petition are that complainant-respondent No. 2 filed an FIR with the Police Station, Bhanipura to the effect that on 111.1996, at about 8:00 AM, accused-petitioners Mahaveer Prasad, Shankar Lal and Bhera Ram, with a common intention, trespassed over the cote (Bada) and took forcible possession over the cote. It was alleged in the FIR that the complainant-respondent No. 2 was having possession over the said cote (Bada) for about 20 to 30 years. On this report, the investigation ensued and after investigation, the police filed a negative final report. Complainant-respondent No. 2 filed a protest petition, which had been dismissed by the trial Court vide order dated 04.06.2001. Being aggrieved by the order dated 04.06.2001 of the trial Court, the complainant-respondent No. 2 preferred a revision petition before the revisional Court, which has been allowed vide impugned order dated 24.03.2003. Hence, this miscellaneous petition. 3. I have heard learned Counsel for the petitioners, Public Prosecutor and the Counsel for complainant-respondent No. 2. Perused the orders passed by the Courts below. 4. The police filed the negative final report treating the dispute to be of civil nature. The trial Court, accepting the negative final report and dismissed the protest petition on the ground that the offence under Section 447, IPC, is punishable with imprisonment for three months and as such the report should have been lodged within one year but the report has been lodged about three years after the alleged trespass, therefore, no cognizance can be taken of the aforesaid offence. 5. Section 472, CrPC, pertains to continuing offence and provides that in the case of continuing offence, a fresh period of limitation shall begin to run at every moment of the time during which the offence continues. 5. Section 472, CrPC, pertains to continuing offence and provides that in the case of continuing offence, a fresh period of limitation shall begin to run at every moment of the time during which the offence continues. Trespass is susceptible of continuance and does not end on the date on which it is initially committed. 6. In Beguram vs. Jaipur Udhyog Ltd., 1987 CrLR 304 (Raj.), a Coordinate Bench of this Court held that trespass is a continuing offence and the matter is covered by Section 472, CrPC, which expressly provides that in the case of continuing offence, a fresh period of limitation shall to run at every moment of the time during which the offence continues. The Court further observed that continuing offence is one which is susceptible of continuance as is distinguishable from one which is committed once and for all. 7. In M/s. Gokak Patel Volkart Ltd. vs. Dundayya Gurushiddaiah Hiremath & Ors., 1991 (1) Crimes 556, the Honble Supreme Court held that the concept of continuing offence does not wipe out the original guilt but it keeps the contravention alive day by day. The Apex Court further observed as under:- "Trespass by way of personal entry is a continuing injury, lastly as long as the personal presence of the wrongdoer, and giving rise to actions de die in diem so long as it lasts, is sufficiently obvious. It is well settled, however, that the same characteristic belongs in law even to those trespass which consists in placing things upon the plaintiff s land. Such a trespass continues until it has been abated by the removal of the thing which is thus trespassing; successive sections will lie from day to day until it is so removed; and in each action damages (unless awarded in lieu of an injunction) are ansessed only up to the date of the action. Whether this doctrine is either logical or convenient may be a question, but it has been repeatedly decided to be the law." 8. Thus, the learned trial Court apparently committed an error and illegality in dismissing the protest petition on the ground that the complaint had been filed beyond the period provided under Section 468, CrPC. 9. There is yet another aspect of the matter. The police filed the negative final report on the ground that the matter is of civil nature. Thus, the learned trial Court apparently committed an error and illegality in dismissing the protest petition on the ground that the complaint had been filed beyond the period provided under Section 468, CrPC. 9. There is yet another aspect of the matter. The police filed the negative final report on the ground that the matter is of civil nature. While accepting, the final negative report, the trial Court has not appreciated the law in right perspective. It is settled proposition of law that even if the dispute is of a civil nature, criminal proceedings can be allowed to continue if the act prima facie constitutes an offence. In Alpic Finance Ltd. vs. P. Sadasivan & Anr., 2001 (3) SCC 513 , the Honble Apex Court held that merely because remedy by way of civil suit is available, is not an impediment in maintaining a criminal complaint provided the complaint discloses the ingredients of the offence alleged. 10. In M. Krishnan vs. Vijay Singh & Anr., 2001 (8) SCC 645 , the Honble Supreme Court observed that mere pendency of the civil suit between the parties cannot be a ground for quashing the criminal proceedings against the accused. The Apex Court observed that if mere pendency of a civil suit is made a ground for quashing the criminal proceedings, the unscrupulous litigants, apprehending criminal action against them, would be encouraged to frustrate the course of justice and law by filing suits with respect to the documents intended to be used against them after the initiation of criminal proceedings or in anticipation of such proceedings and such a course cannot be the mandate of law. The Apex Court further held that in a criminal Court, the allegations made in the complaint have to be established independently, notwithstanding the adjudication by a civil Court. The Apex Court further held as under:- "Where factual foundations for the offence have been laid down in the complaint, the High Court should not hasten to quash criminal proceedings merely on the premise that one or two ingredients have not been stated with the details or that the facts narrated reveal the existence of commercial or money transaction between the parties. The revisional or inherent powers for quashing the proceedings at the initial stage can be exercised only where the allegations made in the complaint or the first information report do not prima facie disclose the commission of an offence or the allegations are so absurd or inherently improper that on the basis of which no prudent person could have reached a just conclusion that there were sufficient grounds in proceeding against the accused or where there is an express legal bar engrafted in any provisions of the Code or any other statute to the institution and continuance of the criminal proceedings or where a criminal proceeding is manifestly actuated with mala fide and has been initiated maliciously with the ulterior motive for wrecking vengeance on the accused and with a view to spite him due to private and personal grudge." 11. In Jagdish Ram vs. State of Rajasthan, AIR 2004 SC 1734 , the Honble Supreme Court dealt with the principles required to be kept in mind at the stage of taking cognizance and reaching in a prima facie view and held that at that stage, the Magistrate had only to decide whether sufficient ground exists or not for further proceeding in the matter. It is well settled that notwithstanding the opinion of the police, a Magistrate is empowered to take cognizance if the material on record makes out a case for the said purpose. The investigation is the exclusive domain of the police. Taking of cognizance of the offence is an area exclusively within the domain of a Magistrate. At this stage, the magistrate has to be satisfied whether there is sufficient ground for proceeding, and not whether there is a sufficient ground for conviction. Whether the evidence is adequate for supporting the conviction can be determined at the time of conclusion of the trial and not at the stage of inquiry. At the stage of issuing the process to the accused, the Magistrate is not required to record reasons. 12. Thus, the trial Court has erred in law and on facts in accepting the negative final report by treating the dispute to be of a civil nature. The learned revisional Court has appreciated the facts and law in right perspective and I find no illegality, error or perversity in the order impugned. 13. Consequently, the miscellaneous petition lacks merit and it is dismissed accordingly. The learned revisional Court has appreciated the facts and law in right perspective and I find no illegality, error or perversity in the order impugned. 13. Consequently, the miscellaneous petition lacks merit and it is dismissed accordingly. The stay petition also stands disposed of .