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2013 DIGILAW 1039 (RAJ)

Narendra Kumar Jain v. State of Rajasthan

2013-05-20

ATUL KUMAR JAIN

body2013
JUDGMENT 1. - In the Misc. Petition No. 805/2011 under Section 482, Cr.P.C. petitioner Narendra Kumar Jain who is said to be landlord of the premises in question, has challenged the order dated 25.1.2011 of the Addl. Sessions Judge (FT) No. 9, Jaipur Metropolitan, Jaipur in Criminal Revision Petition No. 256/2010 whereby that Court has rejected the prayer of the accused-petitioner for permission to open the shop in question. 2. The matter relates to the F.I.R. No. 276/2010 which was lodged by respondent No. 2 Ravi Jain (complainant-alleged tenant of premises in question) under Section 453, I.P.C. and during the investigation of the case, the police came to the conclusion that accused-petitioner Narendra Kumar Jain had committed criminal trespass by breaking open the lock in the shop which was in possession of the tenant. The concerned Investigation Officer was under the impression that he is not entitled to attach the shop in a case of criminal trespass, so he locked disputed premises and keys only were seized by him under Section 102 Cr.P.C. and then the landlord as well as the tenant filed a petition for supurdagi of premises along with keys but the trial Court (Addl. Chief Judicial Magistrate No. 9, Jaipur City, Jaipur) by his order dated 13.11.2010 in regular criminal case-State v. Narendra Kumar Jain , pending before him held that since possession of the disputed premises was obtained by accused Narendra Kumar Jain by breaking open lock of the premises, so he is not entitled to keys of the premises. It was also mentioned in the order of the trial Court that if the landlord wants possession from the tenant then he should go to the civil Court for the relief by following the due procedure. The order dated 13.11.2010 was challenged by the accused-petitioner Narendra Kumar in Criminal Revision No. 256/2010 in the Court of Addl. Sessions Judge (FT) No. 4, Jaipur Metropolitan, Jaipur and by order dated 25.1.2011 passed in Criminal Revision No. 256/2010 the said Court ordered that keys of the disputed premises be handed over to accused-petitioner Narendra Kumar. He was also bound down by the Revisional Court that he will not be entitled to open the lock of the disputed premises and if he wants possession of the disputed premises then he should seek order from a competent civil Court in this respect. 3. He was also bound down by the Revisional Court that he will not be entitled to open the lock of the disputed premises and if he wants possession of the disputed premises then he should seek order from a competent civil Court in this respect. 3. The order has been challenged by accused Narendra Kumar in S.B. Criminal Misc. Petition No. 805/2011 and by complainant Ravi Jain in S.B. Criminal Revision No. 101/2011 before us. 4. Now, in this petition accused-petitioner Narendra Kumar Jain has prayed under Section 482, Cr.P.C. that an order to the effect may be passed that he should be allowed to open the lock of premises by the keys given on supurdgi to him and he should not be compelled to go to civil Court or rent Tribunal for possession of the disputed premises. 5. The accused-petitioner has submitted the following rulings in his support : (1) Amrit Lal Kumawat & Ors. v. State of Rajasthan, 1998 Cri.L.J. 3032 (Raj.) (2) Jagdish Chandra v. State of Rajasthan, 2012(4) Cr.L.R. (Raj.) 1755. 6. In the above mentioned two rulings it was held that perhaps under Section 102, Cr.P.C., the police has no power to attach immovable property even in cases of criminal trespass registered at their Police Station but these rulings are silent on the point that if police has attached immovable property also in a case of criminal trespass, then to whom the immovable property should be handed over. 7. It has been argued on behalf respondent No. 2 Ravi Jain, alleged tenant of the disputed premises, that by use of force accused-petitioner had obtained the possession of the rented premises from him by breaking open the lock of the premises and in such case, if possession of the shop in question is given to the accused-petitioner Narendra Kumar, then indirectly it will be an encouragement to the crime which has been committed by accused-petitioner Narendra Kumar. In the circumstances of the case, respondent No. 2 Ravi Jain (tenant) has prayed that before commission of the offence by the accused petitioner, the possession of the disputed shop was with him (respondent No. 2 Ravi Jain) and so the possession of the disputed property should be given only to him (respondent No. 2). 8. I have heard both the1 parties in the matter. 9. Rule is quite simple. 8. I have heard both the1 parties in the matter. 9. Rule is quite simple. It may be debatable that under Section 102, Cr.P.C., the police have or does not have the power to attach the immovable property, the possession of which has been obtained by committing criminal trespass by one party to the dispute but it is certain that once possession has been taken by the police rightly or wrongly, it cannot now be given to the wrong doer because if we do so then people will lose faith in the judicial system. The justice should not only be done but it be shown to be done as well. 10. Hence both the petitions filed by either of the parties are hereby disposed of in the interests of justice and with the direction that not only keys but possession of the disputed shop be also returned to the alleged tenant Ravi Jain by the police under this order. Accused-petitioner Narendra Kumar is hereby directed to surrender the keys of the disputed premises before the trial Court within seven days from this order and thenafter, the keys will be handed over to the alleged tenant Ravi Jain along with the actual physical possession of the shop. It is made clear that if within seven days, accused-petitioner Narendra Kumar does not surrender the keys of the disputed premises in the trial Court, then the trial Court arrange to get the lock opened by other means and then the actual physical possession of the disputed premises will be handed over to the alleged tenant Ravi Jain by the (rial Court. The trial Court may take police assistance for compliance of this order. 11. Both the petitions, S.B. Criminal Misc. Petition No. 805/2011 and S.B. Criminal Revision Petition No. 110/2011 are disposed of accordingly. The stay petition, if any, also stands disposed of accordingly.Petition disposed of. *******