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2006 DIGILAW 475 (MP)

Padmakar Dharmadhikari v. State of M. P.

2006-03-31

RAKESH SAKSENA

body2006
ORDER 1. Applicant has filed this petition under section 482 of CrPC challenging the order dated 8.4.2005 passed by the Sessions Judge, Hoshangabad, in Criminal Revision No. 65 of 2004 whereby the order passed by the Judicial Magistrate, First Class, Itarsi, on 27.3.2004, framing the charges against the applicant under section 325 and 294 of the Indian Penal Code in Criminal Case No. 1102 of 2000 has been confirmed. 2. Brief facts of the case are that the complainant Sandeep Khandelwal lodged a report with the Police !tarsi that on 10.11.2000, while he was sitting in his building material shop, applicant, who happened to be the landlord of his shop, came there and asked him to vacate the shop. On his protest and saying that he would vacate the shop when he will get another shop, the applicant uttered obscene words and assaulted him. He assaulted him by an iron pipe, but the blow was warded off by his employee Mukesh Raikwar. The blow landed on the hand of Mukesh as a result of which he suffered injury on his hand. On medical examination Mukesh Raikwar was found to have suffered three injuries on his body. On x-ray examination lower end of ulna bone was found fractured. On the aforesaid report, police registered the case under sections 341, 323 & 294 of the Indian Penal Code. 3. After investigation the charge sheet was filed. By order dated 27.3.2004 Magistrate framed the charges against the accused/applicant for the offence under section 325 and 294 of IPC. The applicant challenged the order of framing charge by filing revision before the Court of Sessions Judge, Hoshangabad. Learned Sessions Judge after due consideration of the facts and circumstances of the case dismissed his revision. Aggrieved applicant has now filed this petition under section 482 of CrPC challenging the impugned orders passed by the Courts below praying quashment of the charges framed against him. 4. Learned counsel for the applicant submitted that, in fact, the applicant (accused) was in possession of the shop where the incident is said to have occurred and it was the complainant who had tried to dispossess him. 4. Learned counsel for the applicant submitted that, in fact, the applicant (accused) was in possession of the shop where the incident is said to have occurred and it was the complainant who had tried to dispossess him. He submitted that complainant's wife Jyoti Khandelwal had filed a suit for injunction against the applicant, which was dismissed by the Civil Judge, Class-II, Itarsi, on 22.11.2003, holding that the complainant was not in possession of the shop and that on 10.11.2000 applicant had not tried to dispossess the complainant from the shop. He submitted that in view of the findings recorded by the civil Court, the trial Court ought not to have framed the charges against the applicant as is indicated that the first information report lodged by the complainant was false. He submitted that the time of framing the charges, the Courts below ought to have considered that criminal case and civil proceedings involved the same cause of action therefore the judgment of civil Court with respect to the aforesaid findings was relevant while considering the framing of charge. He submitted that in view of the finding of the civil Court the charges framed by the Magistrate deserve to be quashed. Learned counsel for the applicant placed reliance on the case of K.G. Premshanker v. Inspector of Police and another reported in 2003 (I) MPLJ 1, wherein the apex Court observed that if the criminal case and civil proceedings are for the same cause, judgment of the civil Court would be relevant if conditions of any of the sections 40 to 43 of the Evidence Act are satisfied. 5. On due consideration of the facts and circumstances of the case I am of the opinion that this petition deserves to be dismissed. In the present case the charges have been framed for the offences under sections 325 & 294 of IPC. From the facts mentioned in the first information report and the statements recorded by the police under section 161 of CrPC the allegations which prima facie appeared against the applicant are that he had inflicted injuries on the body of complainant and his employee Mukesh, who had suffered grievous injury on his hand. So far as the facts pertaining to the possession of the shop at the time of occurrence are concerned, they do not form the part or ingredient of the aforesaid offences. So far as the facts pertaining to the possession of the shop at the time of occurrence are concerned, they do not form the part or ingredient of the aforesaid offences. Had there been a charge for dispossession or trespass on the dispute shop, the position would have been different. Facts about causing injury to the injured were not directly and specifically in issue in the civil suit, therefore, in my opinion the finding of the civil Court with respect to possession and dispute about the shop cannot be said to be the common issue in civil suit and the present criminal prosecution. In the case of K.G. Premshanker (supra) the apex Court observed I that where in a case of alleged trespass by A on B's property. B filed a suit for declaration of its title and to recover possession from A and the suit is decreed and thereafter in a criminal prosecution by B against A for trespass, judgment passed between the parties in civil proceedings would be relevant and the Court may hold that it conclusively establishes the title as well as possession of B over the property. In such a case A may be convicted for the trespass. In the present case this is not the position. 6. Learned Magistrate has framed the charges on the basis of evidence and material on record. At this stage merely on the basis of findings arrived at by the civil Court that the complainant was not in possession of the shop, the charges framed against the applicant cannot be quashed. Civil proceedings as well as criminal proceedings are, to be decided on the evidence which may be brought on record by the parties. 7. In the result, the petition is dismissed.