Possession of the property at the relevant time is crucial for establishing theft.

JUDGMENT :

SANJAY DHAR, J.

1. The petitioner has challenged order dated 15.12.2016, passed by the learned Judicial Magistrate 1st Class, Tangmarg, whereby he has been charged for offences under Section 379, 427, 447 RPC.

2. It appears that on 20.09.2014, respondent No. 2 lodged a report with the police alleging therein that he is in possession of the land under Survey No. 740 adjacent to Hotel Khalil Palace situated at Gulmarg whereas the petitioner is also in possession of the land adjacent to the aforesaid land of respondent No. 2/complainant. It was further alleged that there is a long standing land dispute between the parties regarding which cases are pending adjudication before the Court at Tangmarg. It was alleged that on 19.09.2014, the petitioner trespassed into the land in possession of respondent No. 2/complainant and he demolished the wooden hut that was constructed on the aforesaid land whereafter he also took away vehicle of the respondent No. 2/complainant, which bears registration No. JK05C-3004. On the basis of this complaint, the police registered FIR No. 26/2014 and started investigation of the case. after investigation of the case, offences under Section 379, 447, 427 RPC were found established against the petitioner and the challan was laid before the trial court. Vide the impugned order dated 15.12.2016, the learned trial court framed charges for offences under Section 379, 447, 427 RPC against the petitioner.

3. The petitioner has challenged the aforesaid order of the learned trial court on the grounds that the material on record of the challan, even if taken at its face value, does not make out any offence against the petitioner; that the vehicle, which is alleged to have been stolen by the petitioner, does not belong to respondent No. 2/complainant nor there is any material on record to show that the petitioner has removed the said vehicle from the possession of the respondent No. 2/complainant; that the property in question regarding which offence of mischief and criminal trespass is alleged to have been committed by the petitioner, belongs to one Prithvi Nath and not to respondent No. 2/complainant, as such, no offence is made out against the petitioner and that respondent No. 2/complainant is an influential person, who has misused the police machinery in order to harass the petitioner.

4. The official respondent has filed the status report in which it has repeated and reiterated the allegations made against the petitioner in the charge-sheet.

5. I have heard learned counsel for the parties and perused the material on record including the trial court record.

6. The challenge in this petition has been thrown by the petitioner to the order of framing charges passed by the learned trial court. Section 251-A of the J&K Cr.P.C. governs the matters relating to charge and discharge of an accused in warrant trial cases by Magistrates. Sub-Section (1), (2) and (3) of the said provisions are relevant to the context and the same are reproduced as under:

Section 251-A:

(1) when, in any case instituted on a police report, the accused appears or is brought before a Magistrate at the commencement of a trial, such Magistrate shall satisfy himself that the documents referred to in section 173 have been furnished to the accused, and if he finds that the accused has not been furnished with such documents or any of them, he shall cause them to be so furnished.

(2) If, upon consideration of all the documents referred to in section 173 and making such examination, if any of the accused as the Magistrate thinks necessary and after giving the prosecution and the accused an opportunity of being heard, the Magistrate considers the charge against the accused to be groundless, he shall discharge him.

(3) If, upon such documents being considered, such examination, if any being made and the prosecution and the accused being given an opportunity of being heard, the Magistrate is of opinion that there is ground for presuming that the accused h