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2016 DIGILAW 2601 (HP)

Neeraj Naiyar v. State of H. P.

2016-12-07

DHARAM CHAND CHAUDHARY

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JUDGMENT : Dharam Chand Chaudhary, J. The petitioners are accused in FIR No. 245/08 registered under Section 447, 506 read with Section 34 of the Indian Penal Code, Police Station, Sadar, Chamba with the allegations that they entered upon the land belonging to Smt. Saristha Devi wife of complainant Madan Singh entered in Khasra No. 9422/9056 and 9422/9054 situated at mauza Chamba town-II, Tehsil and District Chamba, H.P. Not only this, they allegedly started construction of a tin shed thereon unlawfully. The accused-petitioners allegedly encroached upon the suit land to occupy the same by raising construction of tin shed thereon. The complainant and his wife when intervened and asked the accused-petitioners not to raise any construction over the land in question, they threatened them with dire consequences including to do away with their lives. 2. On the basis of the complaint made by Madan Singh aforesaid, FIR came to be registered and the investigation conducted by the police. The police has filed the challan in the Court of learned Chief Judicial Magistrate, Chamba. On perusal of challan and findings sufficient grounds to proceed further against the accused-petitioners, process was issued against them vide order dated 15.05.2009. The notice of accusation has also been put to the accused-petitioners under Section 447, 506 read with Section 34 of the Indian Penal Code. The case presently is at the stage of recording prosecution evidence. 3. The FIR and consequential criminal proceedings have been sought to be quashed on the grounds inter-alia that the land in dispute is adjoining to own land of the accused-petitioners bearing Khasra No. 10359/90/55/7211, Khata Khatauni No. 90/93 measuring 4426.07 square yards situated at Mauza Chamba town-II, Tehsil and District Chamba, H.P. The owner thereof to the extent of half share is Sagar Chand Naiyar, the predecessor-in-interest of the accused-petitioners. He has constructed road in the year 1966 over a portion of the land in dispute. The shed was constructed in the year 1970. No one objected to it. Smt. Sarishtha Devi wife of complainant after registration of sale deed got conducted the demarcation of her land on 04.10.2008. In the report, the revenue authorities have made mention of existence of metalled road and one iron shed over the land allegedly entered upon by the accused-petitioners. The shed was constructed in the year 1970. No one objected to it. Smt. Sarishtha Devi wife of complainant after registration of sale deed got conducted the demarcation of her land on 04.10.2008. In the report, the revenue authorities have made mention of existence of metalled road and one iron shed over the land allegedly entered upon by the accused-petitioners. Their predecessor Shri Sagar Chand Naiyar had filed Civil Suit No. 4/2008 along with an application under Order 39 Rule 1 and 2 of the Code of Civil Procedure. In the interim, learned District Judge, Chamba had directed the parties to maintain status quo qua the possession, nature and construction of the land in question till further orders. The interim order was made absolute on 27.11.2009 vide order, Annexure P-8. It has, therefore, been claimed that there is no question of the accused-petitioners having entered upon the land in question. The same rather was in their possession since time immemorial. 4. The civil suit which was instituted by deceased Sagar Chand Naiyar now stands decided vide judgment dated 29.09.2016. The certified copy thereof is annexed to the application, Cr.M.P No. 1222/2016 filed with a prayer to place the same on record. The application is allowed and the judgment is ordered to be taken on record. The perusal of the judgment reveals that learned Civil Judge (Senior Division), Chamba District at Chamba has held the plaintiffs (accused-petitioners herein) in possession of land in question, which is measuring 68.08 square yards. True it is that Smt. Srestha Devi, wife of complainant has been declared to be owner thereof, however, in view of the accused-petitioners are in possession of the land in dispute, she has been restrained from dispossessing them except in due process of law. Said Smt. Srestha Devi, wife of complainant may have preferred an appeal as argued by Mr. Rathore, learned counsel representing her, however, the fact remains that learned Civil Judge (Senior Division) on appreciation of the evidence available on record has arrived at a conclusion that it is the accused petitioners (plaintiffs in the suit) are in possession of the suit land. 5. Rathore, learned counsel representing her, however, the fact remains that learned Civil Judge (Senior Division) on appreciation of the evidence available on record has arrived at a conclusion that it is the accused petitioners (plaintiffs in the suit) are in possession of the suit land. 5. Now if coming to the essential ingredients required to constitute the commission of an offence punishable under Section 447 of the Indian Penal Code, the provisions contained under Section 441 which defines criminal trespass reveals that in order to infer the commission of such an offence, the accused must have entered upon the property in the possession of another person (complainant) intentionally to commit an offence or to intimidate, insult or annoy such person in possession of the property. True it is that Smt. Srestha Devi has been held owner of the suit land may be on account of she having acquired the same from its previous owner by way of sale. The judgment passed in the civil suit by learned Civil Judge (Senior Division), Chamba, however, reveals that she is out of possession thereof. Learned Civil Judge in para 20 and also 24 of the judgment has observed that metalled road is in existence over a portion of the land in question since the year 1970 to the notice and knowledge of the then owner of the suit land and retaining wall as well as one shed is already constructed by the plaintiff thereon. 6. Said Smt. Srestha Devi, the defendant in the civil suit may or may not succeed in the appeal, however, keeping in view the dispute civil in nature, allowing the criminal proceedings to go on further against the accused-petitioners would amount to abuse of process of law, when in view of the position discussed hereinabove, ingredients of commission of an offence punishable under Section 447 are not established. This Court has every doubt qua likelihood of the accused-petitioners to be ultimately held guilty for the commission of alleged offence. As a matter of fact, there is no likelihood of their’s being convicted or sentenced in view of such material available on record and to the contrary, allowing the criminal proceedings to continue against them would amount to their harassment mentally and also financially. As a matter of fact, there is no likelihood of their’s being convicted or sentenced in view of such material available on record and to the contrary, allowing the criminal proceedings to continue against them would amount to their harassment mentally and also financially. Therefore, there is no question of the accused-petitioners having entered upon the same within the meaning of Section 441 and thereby the commission of an offence punishable under Section 447 of the Indian Penal Code made out against them. 7. Now if coming to the offence the accused-petitioners allegedly committed under Section 506 of the Indian Penal Code, the allegations that the threatening to do away with the lives of complainant and his wife were held out at such a stage when the accused party requested not to raise any construction over the land in dispute also seems to be not genuine for the reason that as per the findings now recorded by the Civil Court on appreciation of the evidence not only the shed but the road was constructed over a portion thereof long back. The wife of complainant has acquired the land in dispute by way of sale on 07.01.2008. The previous owner thereof was someone else. As per record the road and the shed were constructed by deceased Sagar Chand Naiyar in the year 1966 and 1970 respectively. Therefore, it is difficult to believe that the shed has been constructed recently by the accused-petitioners. Even if the evidence collected by the investigating agency is taken as it is i.e. without cross-examining the complainant and other witnesses, the present is a case where to allow the criminal proceedings to continue would not only amount to abuse of process of the law but also harassment of the accused-petitioners. The petition as such is allowed. Consequently, FIR No. 245/2008 and the consequential proceedings i.e. case No. 207-I/2009 titled State of H.P. versus Neeraj Nayyar and others in the Court of learned Chief Judicial Magistrate, Chamba are quashed and set aside. The record be returned to learned trial Court. 8. The petition is according allowed and stands disposed of. Pending applications, if any, shall also stand disposed of. The record be returned to learned trial Court. 8. The petition is according allowed and stands disposed of. Pending applications, if any, shall also stand disposed of. Any observations made hereinabove shall not be construed to be a reflection on the merits of the appeal filed against the judgment and decree passed by learned Civil Judge (Senior Division), Chamba and shall remain confined to the disposal of this petition alone.