JUDGMENT : 1. RULE. Learned Additional Public Prosecutor Mr. H.K. Patel waives service of Rule on behalf of the respondent – State. Learned advocate Mr. P.P. Majmudar waives service of Rule on behalf of the private respondent. 2. This petition is filed for quashing of the FIR being C.R. No.I-144/2013 registered with Kamrej Police Station, Surat for the offence punishable under Sections 143, 447 and 427 of the Indian Penal Code and consequential charge-sheet bearing no.226/2013. 3. The facts in brief are that the petitioners are members of Shri Gel Ambe Parivar Trust – a registered public Trust and the dispute pertains to a plot of land bearing survey no.290, Block No.375/B admeasuring 5 Acres and 35 Gunthas. The original owners of the said land had entered into an Agreement to Sale dated 11/03/2004 with the Trust and on 19/04/2004 the possession agreement was executed and possession was also handed over to the Trust. Being a land of old tenure, restrictions under Section 73AA of the Bombay Land Revenue Code were applicable and hence, for the purpose of execution of sale-deed, appropriate permission from the Collector was necessary and accordingly in the said agreement to sale the onus was on the shoulders of the original owners to receive the necessary permission from the Collector. Consideration for such sale was paid to the original owners in cash as well as in cheque and an amount of Rs.1,50,19,152/- was paid to the original owners. Other documents in the form of general power of attorney dated 06/07/2004 and 05/04/2006 were executed by the original owners to confirm the transaction with regards to the said land. Even subsequent demand for payment towards the consideration on behalf of the original owners through their Power of Attorney was also satisfied and necessary documents to that effect were also executed. 4. The impugned FIR came to be filed on 10/05/2013 arraigning the petitioners as accused and alleging that the petitioners have conspired to usurp the rights of respondent no.1 in the said land as a sale-deed dated 17/05/2012 is executed in connection with the said land. 4. The impugned FIR came to be filed on 10/05/2013 arraigning the petitioners as accused and alleging that the petitioners have conspired to usurp the rights of respondent no.1 in the said land as a sale-deed dated 17/05/2012 is executed in connection with the said land. In the impugned FIR, it is alleged by respondent no.2 that in the year 2009 respondent no.1 had desired to purchase the said land from the original owner Mohanbhai Dahyabhai Vasava and on account of restricted tenure of the land, on two occasions, the sale could not be executed due to lack of permission, and when in the year 2012, upon receipt of permission from the Collector, the respondent no.1 opened the accounts of the original owner and/or his legal heirs and deposited an amount for consideration in their accounts and by a registered document, in presence of the agriculturist, the transaction took place on 17/05/2012. It is alleged that the possession of the land was also handed over and the possession was given to one Vinodbhai Solanki, who was already cultivating the said land on certain terms. It is alleged in the FIR that on 11/05/2013, respondent no.1 received a message from the said Vinodbhai Solanki that the petitioners have trespassed into the said land and have damaged the standing crop. 5. Heard learned advocate Mr. Prabhav A. Mehta appearing on behalf of the petitioners and learned senior counsel Mr. N.D. Nanavaty with Mr. P.P. Majmudar, learned advocate for the respondent no.1. 6. Learned advocate for the petitioners submits that the petitioners, who are the members of the Trust, had entered into an Agreement to Sale of the land in question in the year 2004 and after, the owners were paid consideration for such transaction. Documents in the form of possession receipt, a separate declaration and affidavits of the co-owners were also executed at the relevant time and since then the Trust has been continuously in possession and enjoying the land. It is submitted that since 2004, the Trust is carrying out its religious activities on the said land. It is submitted that the formality of executing the documents to pass over the right, title and interest in the said land to the Trust was pending only on account of restricted tenure of the land. It is submitted that since 2004, the Trust is carrying out its religious activities on the said land. It is submitted that the formality of executing the documents to pass over the right, title and interest in the said land to the Trust was pending only on account of restricted tenure of the land. As and when the restricted tenure was to be removed by the original owners, the land was to be transferred in the name of the Trust. It is submitted that with a specific purpose of grabbing the land, the respondent no.1 has created subsequent documents by alluring the owners of the land. The learned advocate for the petitioners submitted that in connection with this very land the petitioners had filed a Civil Suit for cancellation of the subsequent sale-deed in favour of the respondent no.1. In the civil proceedings, an application for carrying out the Rojkam is also filed and pursuant to the order of the Civil Court report of the commissioner is prepared and in the report possession of the Trust is clearly reflected. The filing of the FIR is only an attempt to grab the possession of the land with the aid of the police authorities. 7. It is submitted that though chronology of the events clearly indicate that the filing of the impugned FIR, then thereafter, filing of the procedure under Section 145 of Cr.P.C., thereafter, order of the Executing Magistrate in the proceedings under Section 145 of Cr.P.C. and the swift action on the part of the police to take over the possession of the land in question and retaining the same, is indicating that the respondent no.1 is hand in glove with the police department with a clear aim to grab the land belonging to the Trust. 8. The learned advocate for the petitioners took this Court through the documents produced on record, which consists of the Agreement to Sale dated 11/03/2004 in connection with the land in question and other documents in the form of possession receipt (Page-43), a declaration/affidavits of the owner/co-owners of the land in question (Page-68, 79, 83). 8. The learned advocate for the petitioners took this Court through the documents produced on record, which consists of the Agreement to Sale dated 11/03/2004 in connection with the land in question and other documents in the form of possession receipt (Page-43), a declaration/affidavits of the owner/co-owners of the land in question (Page-68, 79, 83). The learned advocate took this Court to the letter of the Range IG, Surat Division and submitted that the Trust had immediately resorted to filing of a complaint against the respondent no.1 and others as they were attempting to usurp the valuable rights of the Trust in the property, which has now become a valuable piece of land and that by such application even the Range IG has ordered for registration of the complaint, way-back in the year 2013, but on account of the influence of respondent no.1 and the builder lobby behind him, the police authorities are dragging their legs in the complaint by the Trust. 9. The learned advocate for the petitioners then took this Court through the Civil Suit filed by the Trust against the original owners as well as the respondent no.1 and submitted that to over come the claim of the Trust in the suit, the FIR is registered. 10. It is further submitted that the present FIR is for offence under Section 143, 447 and 427 of the IPC, which pertains to criminal trespass. It is submitted that the proceedings initiated by the respondent no.1 under Section 145 of Cr.P.C. is also in the nature of possession of the land in question. It is submitted that this Court, in a separate proceedings, has not only confirmed the possession of the Trust of the said land, but has also directed the police authorities to restore the possession of the said land with the Trust, which was taken over by the police authorities, pursuant to the order passed by the Executive Magistrate. It is submitted that in view of the observations made by the coordinate bench in the proceedings arising out of Section 145 of Cr.P.C. in connection with this very land and between the very same parties, which came to be confirmed even by the Apex Court in its order dated 22/01/2013 in Special Leave to Appeal (Crl.) No.152/2016 the question of trespass over the property, which rightfully belong to the Trust, would not arise. The learned advocate took this Court through the CAV Judgment delivered by this Court in Special Criminal Application No.5740/2015. 11. As against this, the learned senior counsel Mr. N.D. Nanavati appearing on behalf of the respondent no.1 submitted that the bare allegations in the FIR clearly constitutes the offence. Over and above this, after due investigation, charge-sheet is also filed, therefore, now the option available with the petitioners is to file an application for discharge and that after the filing of the charge-sheet courts should be slow in exercising the powers under Section 482 for quashing of FIR and the proceedings. It is further submitted that the defence of the petitioners, which forms the basis of the present petition, also should not be taken into consideration. It is submitted on behalf of the respondent no.1 that on 17/05/2012 the sale-deed in favour of the respondent no.1 is executed. The suit by the Trust came to be filed on 09/05/2013. The Court Commissioner was appointed in the Civil Suit proceedings and the Commissioner was to carry out the Rojkam on 16/05/2013 and just before that, on 15/05/2013 the alleged offence had taken place indicating that for the purpose of demonstrating the possession of the petitioners when the Court Commissioner visits for recording the Panchnama, the possession of the petitioners/Trust is shown. 12. It is submitted that the order by the Civil Court passed below the application for temporary injunction even the Civil Court has not attributed any weightage to the Court Commissioner’s report. It is submitted that proceedings under Section 145 of Cr.P.C. though reached to the Apex Court, it is not giving findings of fact regarding the possession of the petitioners/Trust. At the best, the proceedings under Section 145 of Cr.P.C. would indicate the possession of the Trust only between the period of 10/11/2013 to 12/11/2013. It is submitted that the proceedings under Section 145 of Cr.P.C., where the Executive Magistrate has passed an order directing the police authorities to take over the possession of the land in question, was subject matter of challenge by the Trust in Revision Application No.136/2013 before the Additional Sessions Judge, Surat. It is submitted that the proceedings under Section 145 of Cr.P.C., where the Executive Magistrate has passed an order directing the police authorities to take over the possession of the land in question, was subject matter of challenge by the Trust in Revision Application No.136/2013 before the Additional Sessions Judge, Surat. The Revision Application came to be allowed on the limited ground that a Special Civil Suit No.265/2013 was filed and pending before the Additional Senior Civil Judge at Surat when the proceedings under Section 145 of Cr.P.C. came to be initiated and hence, in view of pendency of the Civil Suit, it was for the Civil Court to decide and proceedings under Section 145 of Cr.P.C. cannot be allowed to be continued. This order of revision court was subject matter of challenge in Special Criminal application No.4453/2015, which came ot be disposed of by order dated 04/09/2015, which is as under: “Mr. Nanavati, the learned advocate appearing for the petitioner does not press this application and seeks permission to withdraw the same as his client has already avail of the legal remedy available in law. Mr. Prabhav Mehta, the learned advocate appearing for the respondents Nos.2 to 7 submitted that his clients have already applied before the Executive Magistrate for restoration of the possession. Permission as prayed for is granted. This application is rejected as not pressed. I clarify that I have otherwise not gone into merit of the matter. Notice is discharged. Ad-interim order, if any, stands vacated.” 13. Subsequent to this, when the application for restoring the possession to the Trust was taken up by the High Court and decided by CAV Judgment in Special Criminal Misc. Application No.5740/2015 and therefore, the observations in this Judgment cannot be considered to be a conclusive proof of possession of the Trust to rule out the offence of trespass, for which the FIR is filed. 14. The learned referred to the Judgment of Privy Counsel in case of Sinnasamy Selvanayagam Vs. The King to emphasize that the very purpose of providing for a criminal trespass, which was committed with a particular intension to cause breach by the peace is not a substitute for enforcing of a civil right. 14. The learned referred to the Judgment of Privy Counsel in case of Sinnasamy Selvanayagam Vs. The King to emphasize that the very purpose of providing for a criminal trespass, which was committed with a particular intension to cause breach by the peace is not a substitute for enforcing of a civil right. It is submitted that from the allegations in the FIR, it is coming out that the intension of the petitioners was to take over the possession of the land in question, which was in occupation and cultivation of the respondent no.1. He then relied upon the Judgment of the Apex Court in case of Punjab National Bank Ltd. Vs. All India Punjab National Bank Employees’ Federation and another reported in AIR 1960 SC 160 . To substantiate his arguments that the entry of the petitioners into the land in question and continuing to be in the land in question would clearly constitute an offence of criminal trespass as intension is attached to their act of entering into the land in question. 15. This Court has heard the Arguments of the rival parties, the Court has perused the documents on record. The Court has also taken into consideration the CAV Judgment of Co-ordinate Bench in separate proceedings regarding same land in question and between the same parties. 16. It would be necessary to produce the relevant paragraphs of the CAV Judgment which are as under: “5. It appears that the learned Additional Sessions Judge, although quashed and set aside the preliminary order of attachment of the property passed by the Executive Magistrate under Section 145 of the Cr.P.C., yet did not pass any order for restoration of the possession in favour of the party from whom the possession was taken over by the police. 6. Indisputably, pursuant to the order passed by the Executive Magistrate under Section 145 of the Cr.P.C., the possession of the property was taken over from the petitioners herein i.e. the Trust. This fact has been fairly admitted by both the sides i.e. by the respondent No.1 as well as by the State respondent. The police officer, who was present before this Court, assisting the learned APP, made a statement that the possession was with the Trust and the same was taken over from the Trust. This fact has been fairly admitted by both the sides i.e. by the respondent No.1 as well as by the State respondent. The police officer, who was present before this Court, assisting the learned APP, made a statement that the possession was with the Trust and the same was taken over from the Trust. The police officer made himself very clear that they could have handed over the possession to the Trust since the proceedings under Section 145 of the Cr.P.C. were ordered to be quashed, but the respondent No.1 herein took objection and pointed out that the Exhibit: 5 application of the original plaintiffs i.e. the Trust had been rejected by the Civil Court disbelieving their possession and the possession should be handed over to him. 7. It is very much necessary to note that at no point of time, the respondent No.1 asserted that he was in possession of the property. At least, in the course of hearing of this matter, it was not submitted before me that the possession was with the respondent No.1. The learned counsel appearing for the respondent No.1, with his usual fairness, submitted that the police had taken over the possession from the Trust, but the learned counsel laid much emphasis and stress on the fact that the Civil Court had not believed the possession of the Trust. 8. On one hand, the possession was taken over by the police from the Trust pursuant to the preliminary order passed by the Executive Magistrate under Section 145 of the Cr.P.C., and on the other, the respondent No.1, who does not admit to be in possession of the property, objects to the possession being handed over to the Trust. The respondent No.1 very successfully projected a picture that the Trust was trying to interfere with his possession as if he was very much in possession of the disputed property. By saying so, he was successful in getting the proceedings under Section 145 initiated and pursuant to the same, got the property attached through the Executive Magistrate. The Executive Magistrate, in turn, handed over the possession to the police. It appears that even the Civil Court got carried away by such picture which was projected by the respondent No.1.” After observing as above the Court further proceeds to hold as under: “11. The Executive Magistrate, in turn, handed over the possession to the police. It appears that even the Civil Court got carried away by such picture which was projected by the respondent No.1.” After observing as above the Court further proceeds to hold as under: “11. The picture that emerges on the cumulative assessment of the materials on record is more than clear. The Police Officer of the Kamrej Police Station was honest enough to admit that the possession was with the Trust and the same was taken over from the Trust pursuant to the preliminary order passed by the Executive Magistrate under Section 145 of the Cr.P.C. The Court Commissioner, in his report, has shown the possession of the vacant land with the Trust. However, the learned Civil Judge refused to look into the same and thought fit to look into some government records. The respondent No.1 also admits that the possession was taken over by the police from the Trust. This admission would suggest that his entire case on the basis of which the proceedings under Section 145 of Cr.P.C. was initiated gets falsified. The respondent No.1 went before the Executive Magistrate complaining that the Trust was trying to disturb his possession, whereas he knew that he was not at all in possession. 12. The parady of the situation is that although the Trust has been successful in getting the proceedings under Section 145 Cr.P.C. quashed and such order having attained finality, yet the police is sitting tight over the possession. 13. The most glaring fact in the matter is that if the respondent No.1 claims to be in the possession of the land, then he would have raised hue and cry by now and although the Executive Magistrate refused to hand him over the possession, yet he has not thought fit to challenge such decision. 14. As a Judge, I am in a precarious situation. If I only look towards the order passed by the Civil Judge who thought fit to disbelieve the possession of the Trust and reject the injunction application, then it will be nothing short of precipitating a very highhanded action on the part of the respondent No.1 as well as the police. As a Judge, I am in a precarious situation. If I only look towards the order passed by the Civil Judge who thought fit to disbelieve the possession of the Trust and reject the injunction application, then it will be nothing short of precipitating a very highhanded action on the part of the respondent No.1 as well as the police. When the police itself admits and not disputed by the respondent No.1 that the possession was taken over from the Trust, then I am of the view that the Executive Magistrate should be directed to hand over the possession of the land to the Trust. If there is something like a Rule of law then such Rule should prevail without any technicality.” The aforesaid CAV Judgment was challenged by respondent no.2 before the Hon’ble Apex Court and the Apex Court was pleased to dismiss the Special Leave Petition by order dated 22.01.2016. 17. The pleadings of the respondent in the proceedings under Section 145 of Cr.P.C. demonstrate the stand taken. Annexure “X” (page 206-207) is the application wherein it is averred that the petitioners are headstrong persons who are likely to use the force to interfere with the possession of the respondents in the land in question. The perusal of the Order by Executive Magistrate under Section 145 of Cr.P.C. also demonstrate as if the respondents have invited the Executive Magistrate to direct the police authority to take over the possession of the land in question as if the land is in their own possession, but has omitted deliberately or otherwise as to from which party the possession was to be taken over by the police authority (page 200-201). It is in this context the observation of this Court in the CAV Judgment reproduced hereinabove become relevant and also conclusive regarding the fact that the possession of the land in question was not that of the respondents herein. 18. The principal offence alleged against the petitioners under the impugned FIR is under Section 447 of the IPC for criminal trespass. The requirement for alleging criminal trespass under Section 441 it is necessary for all accused to enter into or upon property in possession of another with intent to commit offence, or to intimidate, insult or annoy the person in possession. The requirement for alleging criminal trespass under Section 441 it is necessary for all accused to enter into or upon property in possession of another with intent to commit offence, or to intimidate, insult or annoy the person in possession. In the instant case, the facts coming on record on the basis of findings of courts in previous litigation under Section 145 which reached till S.C. that at the time of execution by the Police Agency of Order of Executive Magistrate the petitioners were in possession. The possession was booked by some documents executed way-back in the year 2004 between the original owners and the petitioners – Trust under Section 145 of Cr.P.C. The proviso to sub-section (4), which applicable to the facts of this case, requires forcible and wrongful dispossession within two months next before the date on which the information was received by the Magistrate. The cumulative effect of findings regarding possession from the Panchnama carried out in the civil proceedings and the observations of the Co-ordinate Bench in CAV Judgment in proceedings under Section 145 of Cr.P.C. would lead this Court to conclude that on facts an offence of criminal trespass cannot be made out. 19. The arguments of senior counsel Mr. N.D. Nanavati appearing for the respondent that the possession recorded in the Panchnama in civil proceedings need not be dealt with again as the same is already dealt with by the Co-ordinate bench in the CAV Judgment in paragraph 10. Therefore, when the question of possession is under a strong dispute and a civil proceedings in that connection is still pending, continuing of the criminal proceedings in the facts of the present case would be an abuse of process of law. 20. The documents pertaining to the land in question in favour of the Trust by the original owner, the subsequent documents regarding the same land by original owner in favour of the complainant side. A prior Civil Suit regarding the same land between the petitioners, the original owner and the complainant, the status of possession recorded in Panchnama in civil proceedings. The documents pertaining to the land in question in favour of the Trust by the original owner, the subsequent documents regarding the same land by original owner in favour of the complainant side. A prior Civil Suit regarding the same land between the petitioners, the original owner and the complainant, the status of possession recorded in Panchnama in civil proceedings. The pleadings in the proceedings initiated by the complainant (Respondent) under Section 145 of Cr.P.C. regarding same land and same parties and most of all the observations of the Co-ordinate Bench on the same subject land confirmed by the Apex Court will certainly not bring the possession of the petitioners within the contemplation of Section 141 of the IPC to make out an offence. The ancillary sections in the FIR therefore, do not require any further consideration. 21. Considering the fact that the civil litigation in connection with the subject matter is still pending, it goes without saying that the observations made herein are restricted to the present proceedings alone. 22. In view of the aforesaid discussion, the FIR being C.R. No.I-144/2013 registered with Kamrej Police Station, Surat and consequential charge-sheet bearing no.226/2013 deserves to be quashed and are hereby quashed. Rule is made absolute. 23. Mr. P.P. Majmudar, learned advocate for the respondent no.1 – original complainant, requests for stay of the present Judgment. However, considering the nature of the relief granted in favour of the applicants the request is not entertained.