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2013 DIGILAW 120 (ORI)

Mitu @ Rabindra Suar v. State of Orissa

2013-04-25

B.K.NAYAK

body2013
JUDGMENT B.K. NAYAK, J. In this Revision the petitioners assail order dated 21.10.2008 passed by the Additional Sessions Judge, Kendrapara, in S.T. Case No. 108/2008 framing charges against the petitioners under Sections 427, 294, 506/34, I.P.C, and Sections 3(1)(v) of S.C., & S.T. (PA) Act. 2. The petitioners have no grievance so far as framing of charge under the Penal Sections of I.P.C. is concerned. Their only grievance is that no offence under Section 3(1)(v) of S.C. & S.T. (PA) Act is made out, and therefore, the charge could not be framed against them for the said offence. 3. FIR was lodged by O.P.2, wherein it is alleged that he has civil dispute with the father of petitioner No. 1 and that a suit is also pending in the Court of learned Civil Judge (Jr. Divn.), Kendrapara but in order to harass and put him into financial loss, the petitioners came with some other persons and abused the inmates of the house in filthy language and damaged their kitchen and some kitchen ware and other materials kept in the kitchen. There were also allegations of assault by slap and fist blows etc. 4. The submission of the learned counsel for the petitioners is that no land particular etc., over which the house in question stands, has been mentioned in the F.I.R. and that during investigation the Investigating Officer found that the informant has purchased only Ac.0.02 decs. 1 kadi of land in three plots from khata No. 280, i.e., Ac.0.01 dec. 1 kadi in plot No. 348, 4 kadis in plot No. 360 and 6 kadis in plot No. 361 from the previous owner, Narayan Prasad Das, on 5.5.1999 and got it mutated in his name, and that out of the said khata and plots, the rest part of the land, i.e., major portion extending to AC.1 .71 decs. 9 kadis has been purchased by Balaram Suar, the father of petitioner No.1, from the original owner, Narayan Prasad Das on 3.5.2006. This fact has been mentioned in the Case Diary itself dated 3.8.2007. It is also mentioned therein that on demarcation of land by Balaram Suar, it was found that the informant had encroached some portion of his land. That apart, the, location of the plots of the informant is different. This fact has been mentioned in the Case Diary itself dated 3.8.2007. It is also mentioned therein that on demarcation of land by Balaram Suar, it was found that the informant had encroached some portion of his land. That apart, the, location of the plots of the informant is different. It is further mentioned that in view of the dispute with regard to ownership and possession over the land, a civil suit has been filed, which is sub-judice. It is also mentioned that the present occurrence took place when the 'complainant's sons were trying to repair a shed on the disputed land. 5. Learned counsel for the petitioners also brought to the notice of this Court the order dated 27.8.2007 passed by the learned Civil Judge (Jr. Divn.), Kendrapara in I.A. No.114/2007 (arising out of Civil Suit No.132/ 2006) whereby on the application of the petitioner's father as plaintiff-petitioner, the learned Civil Judge (Jr. Divn,) passed interim injunction order directing O.P.2, informant, not to encroach upon the suit schedule land. For passing such order, after taking into consideration different materials, the learned Civil Judge prima facie came to the conclusion that the plaintiff-petitioner was in possession of the suit plot. 6. Section 3(1)(v) of S.C. & S.T. (PA) Act provides that whoever, not being a member of a Scheduled Caste or a Scheduled Tribe-wrongfully dispossesses a member of a Scheduled Caste or a Scheduled Tribe from his land or premises or interferes with the enjoyment of his rights over any land, premises or water, shall be punishable with imprisonment for a term which shall not be less than six months but which may extend to five years and with fine. The requirement of the provisions is that the land or premises must have belonged to the aggrieved person, who is either a scheduled Caste or Scheduled Tribe. This does not mean that where there is a scramble with regard to ownership and possession over the land and civil disputes are pending, it can be said that the property in question belongs to the aggrieved person. This does not mean that where there is a scramble with regard to ownership and possession over the land and civil disputes are pending, it can be said that the property in question belongs to the aggrieved person. In the instant case, the I.O. found as per their Case Diary that there is a scramble for ownership and possession over the disputed land and admittedly, the Civil Court has also prima facie found possession with the father of petitioner No.1 and restrained the informant from coming over the land and interfering with possession of the plaintiff. The civil suit has been filed prior to lodging of F.I.R. and the impugned order has been passed in favour of the plaintiff, application for which had been filed prior to lodging of F.I.R. 7. Having regard to the materials, as discussed above, this Court is of the view that no, offence under Section 3(1)(v) of S.C. & S.T. (PA) Act has been made out against the petitioners. Therefore, the charge framed thereunder against the petitioners is not sustainable. Accordingly, the Revision is allowed in part and the charge framed under Section 3(1)(v) of S.C. & S.T.(PA) Act is set aside. However, the petitioners have to face trial for the other charges framed under different provisions of Indian Penal Code. Revision allowed in part.