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2018 DIGILAW 482 (RAJ)

Jagdish Prasad v. State of Rajasthan

2018-02-08

PANKAJ BHANDARI

body2018
JUDGMENT Pankaj Bhandari, J. - Petitioner has preferred this revision petition aggrieved by order dated 08.01.2010 passed by Additional Sessions Judge No.1, Jodhpur, whereby, the Court below has allowed the revision petition filed by the respondent Nos.2 to 7 and has discharged the respondent from offence under Section 456 of I.P.C. 2. It is contended by counsel for the petitioner that the Court below while passing the impugned order has discharged the respondent solely on the ground that a suit for partition was pending between parties prior to the date of the alleged offence. 3. It is contended that suit for partition was filed by the respondent No.4. It was nowhere mentioned in the suit for partition that respondent No.4 is in possession of the disputed room. The suit was filed for the partition of entire property but specific possession of the disputed property was not mentioned. 4. It is contended that respondents entered into the room from the window which was in possession of the petitioner and placed their articles in the room as petitioner was away from the city. He came to know about the criminal act after he returned to Jodhpur. 5. It is contended that there was ample evidence before the Court below to the effect that respondents have in lawfully entered into the partition which was in possession of the petitioner. 6. From the site plan it is revealed that respondents were using the window for their ingress and egress from the premises. It is also contended that learned Judicial Magistrate No.3, Jodhpur, taking into account the entire documents and evidence on record took cognizance and framed charges against the respondents for offence under Section 456 of I.P.C. and there was no justification for the revisional Court to pass the impugned order. 7. Counsel for the respondent has vehemently opposed the revision petition. His contention is that there is no evidence namesake to conclude that respondents have forcefully entered into the room. 8. It is also contended that suit for partition was pending prior to the alleged date of taking possession and the matter would be decided by the Civil Court as to who was in possession at the relevant time. 9. It is also contended that the suit for partition includes the entire property which also includes the present room in dispute. It is also contended that respondent Nos. 9. It is also contended that the suit for partition includes the entire property which also includes the present room in dispute. It is also contended that respondent Nos. 3, 5 and 7 are females who have been falsely implicated in the case, females entering through the window is an impossibility. 10. It is also contended that the respondents were in possession of the room and the possession was not taken on 26.11.2006 as alleged. 11. I have considered the contentions. 12. The police after investigation came to the conclusion that the respondents have entered into the room through the window and thus the police has submitted chargesheet against the respondents. 13. In the plaint filed by respondent No.4 for partition there is no mention in the plaint with regard to possession of the respondents on the disputed room. A bare assertion is made in the plaint that being joint owner they are in possession of the property. The description of the property which is in possession of the respondents is not disclosed in the plaint. 14. Learned Magistrate while passing the order dealt with the evidence collected by the police and after taking cognizance framed charges for offence under Section 456 of I.P.C. against the respondents. The revisional Court erred in allowing the revision petition and setting-aside the order passed by the Learned Magistrate solely on the ground that suit for partition is pending before the Court, merely because suit for partition is pending, it does not given right to party to forcefully enter into the property in possession of another. 15. Revision petition therefore deserves to be and is accordingly allowed, the impugned order passed by the revisional Court is set aside and order passed by Magistrate is affirmed. Record of the Court below be returned forthwith.