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. 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