Research › Search › Judgment

Rajasthan High Court · body

2023 DIGILAW 599 (RAJ)

Prem Singh v. State of Rajasthan

2023-02-23

ASHOK KUMAR JAIN

body2023
ORDER : Mr. Ashok Kumar Jain, J. - The present Misc. Petition has been preferred under Section 482 Cr.P.C. by the petitioner aggrieved from the order dated 12.04.2016 passed by the learned Additional Sessions Judge, Jaitaran (Pali) in Criminal Revision No.69/2012 (Prem Singh v. State of Raj. and Anr.) whereby revision petition was partially allowed against the order dated 09.07.2012 passed by the learned Judicial Magistrate, Jaitaran District Pali and the petitioner was discharged from offence under Section 447 but maintained the cognizance/recording of plea under Sections 427 of the IPC. 2. Learned counsel for the petitioner submitted that it is an admitted position that petitioner is the real brother of Raghuvir Singh, respondent No.2. He submitted that the disputed land is an ancestral land and the same is in joint possession of petitioner and respondent No.2. He further submitted that despite admission of joint possession, the trial Court took cognizance under Sections 447 and 427 of the IPC against the co-sharer (petitioner herein). He further submitted that the revisional Court accepted the contentions relating to criminal trespass but upholded the recording of plea for offence of mischief under Section 427 IPC. He further submitted that it is a settled proposition that in joint holding, on each and every inch of land, possession of co-sharer remains joint and nobody can claim exclusive possession on any particular portion of land. He further submitted that if any crop has been removed from joint ownership then offence of theft or mischief is not made out. He further submitted that learned trial Court and revisional Court have failed to appreciate the correct legal position of law, hence, the entire trial is nothing but an abuse of process of law and same is required to be quashed. To support her contentions, learned counsel has relied upon the law laid down by the Hon'ble Supreme Court in the case of Rajinder Singh Katoch v. Chandigarh Administration and Ors. (2007) Cr.L.R. (SC) 870. 3. Aforesaid contentions were opposed by the learned Public Prosecutor as well as by the learned counsel for the respondent No.2. Learned counsel for the respondent No.2 submitted that though it is a joint and ancestral property but the crop was in exclusive possession of respondent No. 2 as the parties have already demarcated area of their possession and enjoying their possession without formal declaration of division. 4. Learned counsel for the respondent No.2 submitted that though it is a joint and ancestral property but the crop was in exclusive possession of respondent No. 2 as the parties have already demarcated area of their possession and enjoying their possession without formal declaration of division. 4. Heard learned counsel for the petitioner, learned Public Prosecutor and learned counsel for the respondent No.2. Perused the material available on record. 5. A case status report which was downloaded from the E-Court portal indicates that the matter is still pending before the learned trial Court and the next date fixed is 19.04.2023. Herein, on 09.07.2012, an application under Section 190 of the Cr.P.C. to discharge present petitioner was filed before the trial Court and the trial Court observed that there is no provision of discharge, but on the basis of material available on record, oral plea under Sections 447 and 427 of the IPC was recorded against present petitioner. Aggrieved from the order aforesaid, petitioner preferred a revision petition before the revisional Court, wherein it was observed that the disputed land is an ancestral property hence, the present petitioner was discharged from offence under Section 447 IPC but after observing the fact that standing crop was jointly owned by petitioner and respondent No.2, but same was removed or being grazed by the animals of the petitioner thereby causing loss to the respondent No.2. Thus, the offence under Section 427 IPC was found to be made out for trial against the petitioner. 6. The process prescribed for trial of summon cases under Chapter 20 of the Code of Criminal Procedure, provides that when accused is not pleaded guilty then procedure as prescribed under Section 254 Cr.P.C. has to be adopted. It is apparently clear that in summon cases no application under Section 190 Cr.P.C. for discharge of offence is maintainable. Similarly, when substance of accusation was explained to accused then the order is not a revisionable one thus, the revision petition filed before the revisional Court was not maintainable. The only remedy in present situation was to file petition under Section 482 Cr.P.C. Herein, the maintainability of revision petition is not challenged. 7. Similarly, when substance of accusation was explained to accused then the order is not a revisionable one thus, the revision petition filed before the revisional Court was not maintainable. The only remedy in present situation was to file petition under Section 482 Cr.P.C. Herein, the maintainability of revision petition is not challenged. 7. On perusal of the material available on record, it can be said that at the most, offence of criminal trespass under section 447 IPC was not made out in the event of joint possession amongst co-sharer but as regards to theft and mischief is concerned, when it alleged or it is shown that certain portion of land is in exclusive possession of one of the co-sharer then anything removed from possession of any or all the co-sharers is definitely a theft. Similarly, destruction or damage to any property is certainly a mischief. It can be said that if any of co-sharer without permission of other share holders removes or causes damage to any crop, it is certainly an offence, as the act was done without consent of other co-sharers. 8. In the case of Rajinder Singh Katoch (Supra), the dispute was regarding possession of property and the Hon'ble Supreme Court maintained the same by observing that the said property was in co-share holding/joint possession, thus offence of trespass was not made out but in the case at hand, the learned revisional Court has already discharged the present petitioner from offence under Section 447 IPC, therefore, this reliance placed by the learned counsel for the petitioner is not helpful to the present case. The allegations or truthfulness of allegations can be inquired into in summon cases only by leading evidence during trial. 9. Considering the overall facts and circumstances of the case and after going through the material available on record, no case is made out in favor of the petitioner to quash the proceedings or discharge him from offence under section 427 IPC. Thus, I do not find any reason to interfere in the order passed by the trial Court. 10. Accordingly, the instant Misc. Petition being devoid of merit is hereby dismissed.