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2022 Supreme(J&K) 257
IN THE HIGH COURT OF JAMMU AND KASHMIR AND LADAKH AT SRINAGAR
SANJAY DHAR, J.
Tariq Ahmad Bhat and Others – Petitioners
Versus
Senior Superintendent of Police and Others – Respondents
CRMC No. 115 of 2019
Decided On : 29-08-2022
Advocate Appeared:
For the Petitioner: Rizwan-ul-Zaman Bhat.
For the Respondents: Faheem Nissar, Sajad Bhat, Naveed Gul.
Premature initiation of criminal proceedings without adjudication of property rights by the revenue courts constitutes an abuse of process of law.
Headnote:
Trespass - Dispute over Pathway - Section 427, 447 of RPC - Section 4 of the Shamilat Rules
Fact of the Case:
The petitioners challenged an FIR for offences under section 427 and 447 of RPC, relating to a longstanding dispute over a pathway. The private respondents alleged trespass, damage to property, and interference with the pathway, leading to the registration of the impugned FIR and initiation of criminal proceedings.
Finding of the Court:
The court found that there was a bona-fide dispute over the possession of the disputed pathway, with conflicting claims between the petitioners and the private respondents. The court concluded that the criminal proceedings were premature and an abuse of process of law, as the rights over the land in dispute needed adjudication by the revenue courts before initiating criminal proceedings.
Issues: The key issues involved the nature of the dispute, the possession of the disputed pathway, and the legality of initiating criminal proceedings without adjudication of property rights.
Ratio Decidendi: The court held that for an offence of criminal trespass to be constituted, the prosecution must establish that the property on which trespass occurred was in the possession of the complainant. The court emphasized the need for adjudication of property rights by the revenue courts before initiating criminal proceedings.
Final Decision: The petition was allowed, and the impugned FIR and the proceedings were quashed.
JUDGMENT :
SANJAY DHAR, J.
1. The petitioners have challenged FIR No. 10/2019 for offences under section 427 and 447 of RPC registered with Police Station, Aishmuqam.
2. It appears that the respondent No. 4 had lodged a complaint with Police Station, Aishmuqam, alleging therein that he has a longstanding dispute relating to pathway with the petitioners and that the concerned Tehsildar had visited the site and taken action in the matter. It was further alleged that despite this, the petitioners cut the wire around the orchard of the complainant and uprooted the poles. It was also alleged that some apple trees were damaged by the petitioners thereby causing loss to them. On the basis of this report, the impugned FIR came to be registered and the investigation of the case was set into motion.
3. The petitioners have contended that they are owners in possession of the land measuring 8 kanals under Survey Nos. 69, 69/1 and 576/67 of Village Badigam where they have constructed their residential houses. It is averred that the petitioners are using a pathway through a land which is recorded as Shamilat land under Rule 4 of the Shamilat Rules. The petitioners have gone on to submit that the pathway that is being used by them was encroached upon by the private respondents including the complainant, as a consequence whereof the petitioners had to approach Tehsildar, Pahalgam, by way of an application. It is averred that on 02.04.2016, a team of revenue officials was constituted by Tehsildar, Pahalgam, who, after visiting the site, restored the pathway by removing the encroachment. It is alleged that the private respondents did not stop here but continued their interference in the pathway passing through the Shamilat Najayez land, which compelled the petitioners to approach District Development Commissioner, Anantnag, by way of an application and pursuant thereto, the District Development Commissioner issued directions for restoration of the pathway. It is alleged that on 12.05.2016, Tehsildar, Pahalgam, directed Naib Tehsildar, Pahalgam, to implement order dated 02.04.2016 regarding restoration of the pathway.
4. It has been submitted that the private respondents also filed a suit before Learned Sub Judge, Anantnag, seeking a declaration regarding their ownership and possession of land measuring 13 marlas 3½ sirsai under Survey No. 70, land measuring 7 kanals 10 marlas under Survey No. 187/27, land measuring 1 kanal under Survey No. 64-min, land measuring 2 kanals 1 marla and 2 sirsai under Survey No. 126 and land measuring 2 marlas under Survey No. 362/126 situated at Badigam. A perpetual injunction restraining the defendants from causing interference in the pathway leading to the land of the private respondents was also sought. The Learned Sub Judge was pleased to dismiss the suit on 10.12.2016 but after restoration of the suit, a direction was passed by the Learned Sub Judge on 22.07.2017, to Tehsildar, Pahalgam, to carry out aforesaid order dated 02.04.2016. It is further alleged that the private respondents again blocked the pathway and the petitioners again moved an application before Tehsildar, Pahalgam, to constitute a team to restore the pathway and when the private respondents resisted the action of revenue officers, FIR No. 24/2017 for offences under section 341 RPC came to be lodged by Tehsildar, Pahalgam, against the private respondents. It is averred that the pathway was again restored in terms of order dated 14.07.2018 of Additional Deputy Commissioner, Anantnag, whereafter the private respondents, finding no other alternative to overcome the actions of the revenue officers, lodged the impugned FIR which is absolutely frivolous in nature.
5. With the aforesaid background of facts, the petitioners have challenged the impugned FIR on the grounds that the dispute between them and the private respondents is purely of civil nature relating to pathway and the private respondents have converted the said dispute into a criminal case, wh
