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Rajasthan High Court · body

2007 DIGILAW 1422 (RAJ)

Sneh Tomar v. State of Rajasthan

2007-07-27

H.R.PANWAR

body2007
JUDGMENT 1. - This criminal revision petition under Section 397 read with Section 401 of the Code of Criminal Procedure, 1973 (for short, "the Code" hereinafter) is directed against the order dated 24.4.2007 passed by the Judicial Magistrate No. 6, Jodhpur (for short, "the trial" hereinafter in Criminal Case No. 475/2006, whereby the trial framed the charges against the petitioners for the offences under Sections 447 and 427 IPC. 2. I have heard learned counsel for the parties. Carefully gone through the order impugned and the Challan papers. 3. It is contended by the learned counsel for the petitioners that the petitioners are the tenant in the disputed premises and, therefore, no offence under Section 447 IPC is made out. So far as the offence under Section 427 IPC is concerned, according to the learned counsel for the petitioners, the extension raised on the first floor (roof) of the premises is not of a permanent nature and, therefore, no offence of mischief also is made out. Learned counsel has relied on a decision of the Hon'ble Supreme in M/s. Indian Oil Corporation v. M/s. NEPC India Ltd. & ors., 2006(2) WLC (SC) Criminal 253 ; and two decisions of this in Dhirendra Singh v. State of Rajasthan, 2007(2) R.C.C. 565 and Smt. Supyar Bai v. Smt. Gordhan Bai through her Legal Representatives, 1992(1) WLC (Raj.) 590 . 4. Learned Public Prosecutor and the counsel for the complainant submit that from the material available on record prima facie there is a ground to presume that the petitioners committed the offences noticed above, for which the charges have been framed. It is contended that though the petitioners are the tenants in the premises by a lease deed dated 20.9.1996, but the lease deed, in clear terms, provides that the first floor area has not been included in the tenancy of the petitioners as the clause in the lease deed, in clear terms, provides that lessor reserves the first floor area for his own use and, thus, the area, to which the petitioners trespassed, was exclusive in the possession of the complainant and not that of the petitioners and, therefore, the petitioners committed the criminal trespass and damaged the property of the complainant by putting iron angles and raising the structure and as such they committed the offence of mischief. Learned counsel for the complainant has invited my attention to the statements of Manju Choudhary, Dr. Prithvi Singh and Prahlad Singh recorded by the police under Section 161 of the Code, as also the lease deed dated 29.9.1996 executed by the complainant with regard to the disputed premises, which also provides that the lessee will not make any structural alteration or addition in the building without written permission of the lessor. Learned counsel for the complainant has relied on the decisions of the Hon'ble Supreme in Trisuns Chemical Industry v. Rajesh Agarwal & Ors., 1999 Cri.L.J. 4325 ; Kamala Devi Agarwal v. State of West Bengal & Ors., 2002 is Cr.L.R. (SC) 67 ; Mohd. Akbar Dar & Ors. v. State of Jammu and Kashmir & Ors., AIR 1981 SC 1548 ; Radhey Shyam v. Kunj Behari & ors., 2002(1) WLC (SC) Cri. 85 : AIR 1990 SC 121 ; State of Bihar v. Ramesh Singh, 1977 Cr.L.R. (SC) 375 ; and the decisions of this in Chiman Jagwani v. Union of India, 2002 Cr.L.R. (Raj.) 35 ; Bhagirath v. State of Rajasthan, 1999 (2) RCD 649 ; Shera Ram v. The State of Rajasthan, 2004(1) Cr.L.R. (Raj.) 580 ; and Umesh & Ors. v. State of Rajasthan, 2003(3) R.Cr.D. 142 (Raj.) . 5. I have given my thoughtful consideration to the rival submissions made by the learned counsel for the parties; carefully gone through the Challan papers including the lease deed which is a part of the record of the trial . 6. In M/s. Indian Oil Corporation v. M/s. NEPC India Ltd. & Ors. (supra) observed that it is necessary to take notice of a growing tendency of business circles to convert purely civil disputes into criminal cases. This is obviously on account of a prevalent impression that civil law remedies are time consuming and do not adequately protect the interest of lenders/creditors. Such a tendency is seen in several family disputes also, leading to irretrievable break down of marriage/families. There is also an impression that if a person could somehow be entangled in a criminal prosecution, there is a likelihood of imminent settlement. Any effort to settle civil disputes and claims, which do not involve any criminal offence, by applying pressure through criminal prosecution should be deprecated and discouraged. There is also an impression that if a person could somehow be entangled in a criminal prosecution, there is a likelihood of imminent settlement. Any effort to settle civil disputes and claims, which do not involve any criminal offence, by applying pressure through criminal prosecution should be deprecated and discouraged. However, in the very decision, the Hon'ble Supreme held that the High was justified in rejecting the contention of the respondents that the criminal proceedings should be quashed in view of pendency of the civil proceedings. 7. In Dhirendra Singh v. State of Rajasthan & Anr. (supra), this held that criminal law is meant as a shield to protect the interest of individual, it is not meant to be used as sword for inflicting injuries on others out of a feeling of vengeance. 8. In Smt. Supyar Bai v. Smt. Gordhan Bai through her Legal Representatives (supra), while considering a case under Section 13(1) of the Rajasthan Premises (Control of Rent & Eviction) Act, 1950 as to whether the constructions so made has materially altered the premises or is likely to diminish its value, held that the words "materially altered" mean a substantial change in character, form and structure of building without destroying its identity. It means that nature and character of change or alteration of building must be of important nature. 9. The aforesaid three decisions, relied on by the learned counsel for the petitioners, have no direct bearing on the facts of the instant case and as such, the aforesaid decisions are of no help to the petitioners. 10. Even otherwise, if any litigation between the parties, may be in the form of a suit for eviction, is pending, that will not take away the right of the complainant to register a criminal report for a criminal act(s) of the petitioners as has been held by the Hon'ble Supreme in Trisuns Chemicals Industry v. Rajesh Agarwal & Ors. (supra); Kamala Devi Agarwal v. State of West Bengal & Ors. (supra); Mohd. Akbar Dar & Ors. v. State of Jammu and Kashmir & Ors. (supra); Radhey Shyam v. Kunj Behari & Ors. (supra); and State of Bihar v. Ramesh Singh (supra). 11. It is settled that mere pendency of a civil suit between the parties cannot be ground for quashing the criminal proceedings against the accused. (supra); Mohd. Akbar Dar & Ors. v. State of Jammu and Kashmir & Ors. (supra); Radhey Shyam v. Kunj Behari & Ors. (supra); and State of Bihar v. Ramesh Singh (supra). 11. It is settled that mere pendency of a civil suit between the parties cannot be ground for quashing the criminal proceedings against the accused. If such a practice is permitted, it would be an easy way out for the accused to avoid criminal proceedings. In M. Krishnan v. Vijay Singh, (2001) 8 SCC 645 , the Hon'ble Supreme held that High appears to have been impressed by the fact that as the nature of the dispute was primarily of a civil nature, the appellant was not justified in resorting to the criminal proceeding. Accepting such a general proposition would be against the provisions of law inasmuch as in all cases of cheating and fraud, in the whole transaction, there is generally some element of civil nature. The proceedings could not be quashed only because the respondents had filed a civil suit. If mere pendency of a 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. Such a course cannot be the mandate of law. The Apex further held that in a criminal , the allegations made in the complaint have to be established independently, notwithstanding the adjudication by a civil . Had the complainant failed to prove the allegations made by him in the complaint, the respondents were entitled to discharge or acquittal but not otherwise. This view has been reiterated by the Hon'ble Supreme in Alpic Finance Ltd. v. P. Sadasivan, (2001) 3 SCC 513 ; and also in the decision, relied on by the learned counsel for the petitioners, in M/s. Indian Oil Corporation v. M/s. NEPC India Ltd. & ors. (supra). 12. In Trisuns Chemical Industry v. Rajesh Agarwal & ors. (supra), the Hon'ble Supreme held that time and again this has been pointing out that quashment of FIR or a complaint in exercise of inherent powers of the High should be limited to very extreme exceptions. (supra). 12. In Trisuns Chemical Industry v. Rajesh Agarwal & ors. (supra), the Hon'ble Supreme held that time and again this has been pointing out that quashment of FIR or a complaint in exercise of inherent powers of the High should be limited to very extreme exceptions. The Apex further held as under : "We are unable to appreciate the reasoning that the provision incorporated in the agreement for referring the disputes to arbitration is an effective substitute for a criminal prosecution when the disputed act is an offence. Arbitration is a remedy for affording reliefs to the party affected by breach of the agreement but the arbitrator cannot conduct a trial of any act which amounted to an offence albeit the same act may be connected with the discharge of any function under the agreement. Hence, those are not good reasons for the High to axe down the complaint at the threshold itself. The investigating agency should have the freedom to go into the whole gamut of the allegations and to reach a conclusion of its own. Preemption of such investigation would be justified only in very 5 extreme cases as indicated in State of Haryana v. Bhajan Lal, AIR 1992 SC 604 ." 13. In Kamala Devi Agarwal v. State of West Bengal & ors. (supra), the Hon'ble Supreme held that "the High was not justified in quashing the proceedings initiated by the appellant against the respondents. to We are also not impressed by the argument that as the Civil Suit was pending in the High , the Magistrate was not justified to proceed with the criminal case either in law or on the basis of propriety. Criminal case have to be proceeded with in accordance with the procedure as prescribed under the Code of Criminal Procedure and the pendency of a civil action in a 15 different even though higher in status and authority, cannot be made a basis for quashing of the proceedings." 14. In Mohd. Akbar Dar & Ors. v. State of Jammu and Kashmir & Ors. (supra), while considering the scope of framing the charge, the Hon'ble Apex held that it is true that the High has not gone into the details or the pros and cons of the matter This was obviously because that is not the stage when the could enter into meticulous consideration of the evidence and materials. 15. (supra), while considering the scope of framing the charge, the Hon'ble Apex held that it is true that the High has not gone into the details or the pros and cons of the matter This was obviously because that is not the stage when the could enter into meticulous consideration of the evidence and materials. 15. In Radhey Shyam v. Kunj Behari & Ors. (supra), the Hon'ble Supreme held that at the stage of framing of charges, meticulous consideration of evidence and materials by is not required. 16. In State of Bihar v. Ramesh Singh (supra), the Hon'ble Supreme held that at the beginning and the initial stage of the trial the truth, veracity and effect of the evidence which the prosecutor proposes to adduce are not to be meticulously judged. Nor is any weight to be attached to the probable defence of the accused. It is not obligatory for the Judge at the stage of the trial to consider in any detail and weight in a sensitive balance whether the facts, if proved, would be incompatible with the innocence of the accused or not. The standard of test and judgment which is to be finally applied before recording a finding regard the guilt or otherwise of the accused is not exactly to be applied at the stage of deciding the matter under Section 227 or Section 228 of the Code. At that stage the is not to see whether there is sufficient ground for conviction of the accused or whether the trial is sure to end in his conviction. Strong suspicion against the accused, if the matter remains in the region of suspicion, cannot take the place of proof of his guilt at the conclusion of the trial. But at the initial stage if there is a strong suspicion which leads the to think that there is ground for presuming that the accused has committed an offence then it is not open to the to say that there is no sufficient ground for proceeding against the accused. The same view has been taken by this in various decisions relied on by the learned counsel for the complainant referred hereinabove. 17. The same view has been taken by this in various decisions relied on by the learned counsel for the complainant referred hereinabove. 17. In the instant case, the first informant lodged the report with the police alleging therein that some portion of the ground-floor of his house was given on rent to the Director, Central Modern Education Society School and in the said premises, the roof of the ground floor and the first floor were kept reserved for the use of the first informant and as such the roof of the ground and first floor are in the exclusive possession of the lessor-first informant. On the first floor, some domestic articles were kept by the first informant belonging to him and it has been used by him. It has been categorically alleged that the petitioners, along with a few persons, in order to take forcibly possession on the roof of the ground floor and the first floor of the premises in question, committed criminal trespass and started fixing iron angles in order to make tin-shed etc. On being asked by the first informant and other witnesses the petitioners started quarrelling and insulted the first information and his family members by using filthy and abusive language and as such the petitioners committed the offence of criminal trespass and mischief by causing damage to the roof of the ground floor and the first floor of the premises owned and possessed by the first informant. 18. The three witnesses, viz. Smt. Manju Choudhary, Mithu Singh and Prahlad Singh, in their statements under section 161 of the Code, which is part of the Challan papers, categorically stated that the present petitioners not being in possession of the roof of the ground floor and the first floor, committed the criminal trespass by putting the iron angles and raising the structure like tin-shed etc. and as such the petitioners caused damage to the property of the first informant and, thus, causing of such damage falls within the ambit of the offence of mischief punishable under Section 427 IPC. 19. and as such the petitioners caused damage to the property of the first informant and, thus, causing of such damage falls within the ambit of the offence of mischief punishable under Section 427 IPC. 19. The lease deed, to which the parties are bound, is a part of the Challan papers, which in clear terms provides that the lessor, who is the first informant herein has reserved the right over the roof of the ground floor and the first floor of his own use and also provides that the lessee will not make any structure, alteration or addition in the building without written permission of the lessor. 20. Thus, prima facie, there is sufficient material on record that the premises, to which the petitioners committed the criminal trespass, had never been in their possession but are in the exclusive possession of the first informant. Not only the first informant is in the exclusive possession thereof but he has an exclusive right to use it as the owner and in possession thereof and he has every right to prevent the petitioners from causing any damage to 35 the roof of the ground floor and the first floor. There is prima facie evidence that the petitioners, by putting the iron angles, started raising structure and tin-shed and thus caused damage to the property owned by and in possession of the first informant. The site inspection report clearly shows that the roof of the ground floor and the first floor were found broken at some places and there was iron angles installed there. 21. Section 425 IPC defines the offence of "Mischief" and provides that whosoever with intent to cause, or knowing that he is likely to cause, wrongful loss or damage to the public or to any person, causes the destruction of any property, or any such change in any property or in the as situation thereof as destroys or diminishes its value or utility, or affects it injuriously, commits "mischief". Explanation 1 to Section 425 IPC provides that it is not essential to the offence of mischief that the offender should intend to cause loss or damage to the owner of the property, injured or destroyed. It is sufficient if he intends to cause, or knows that he is likely to cause, wrongful loss or damage to any person by injuring any property, whether it belongs to that person or not. It is sufficient if he intends to cause, or knows that he is likely to cause, wrongful loss or damage to any person by injuring any property, whether it belongs to that person or not. Explanation 2 provides that the mischief may be committed by an act affecting property belonging to the person who commits the act, or to that person and others jointly. 22. In view of the aforesaid facts on record, in my view, there is sufficient material before the trial to presume that the petitioners committed the offences under Sections 447 and 427 IPC. Therefore, the trial was justified in framing the charges for the aforesaid offences against the petitioners. Though there is nothing in the Challan papers that any suit between the parties, may be in the form of eviction, is pending but even otherwise if such a suit is pending between them, it would not be a bar for the prosecution of the petitioners for the criminal acts with an intention to to commit the criminal trespass and mischief. Though pendency of civil suit or any defence on the basis thereof cannot be considered at the time of framing of charges as has been held by Hon'ble Supreme in State of Orissa v. Debendra Nath Patni, 2005 (1) WLC (SC) Cri. 207 : (2005) 1 SCC 568 wherein the Hon'ble Supreme while considering the provisions of Section 227 and 228 of the Code and the expression "hearing the submission of accused", held that it only means hearing the submissions of accused on the record of the case filed by the prosecution and documents submitted therewith and nothing more. The expression "hearing the submissions of the accused" cannot mean opportunity to file material to be granted to the accused and thereby changing the settled law. At the stage of framing charge, hearing the submissions of accused has to be confined to the material produced by the police. Keeping in view the law propounded by the Hon'ble Supreme referred hereinabove, in my view, the impugned order does not suffer from any error, illegality or perversity warranting interference in the revisional jurisdiction. 23. In view of the aforesaid discussion, I do not find any merit in the revision petition and it is dismissed accordingly.Revision Dismissed. *******