A civil dispute can involve criminal elements, and allegations of criminal trespass warrant legal proceedings despite claims of civil nature.

JUDGMENT :

1. The petitioner has filed this petition for quashing of order dated 02.08.2023 passed by the court of Learned 1st Additional Munsiff, Srinagar, consequential FIR No. 26/2023 under section 441 IPC dated 05.08.2023 and the charge-sheet titled ‘U.T versus Babar Shah’ pending before the court of Learned Chief Judicial Magistrate, Srinagar.

2. It is stated that false and frivolous application came to be filed by the respondent No. 2 before the Court of Learned Chief Judicial Magistrate, Srinagar under section 156(3) Cr.P.C. for directing the SHO, Police Station, SR Gunj to redress the grievances of the respondent No. 2. The said application was assigned to the court of Learned 1st Additional Munsiff, Srinagar. In the application, it was alleged that respondent No. 2 was the owner of land measuring 27 marlas situated at Bund, Nawabazar, Srinagar over which a residential house was existing but due to devastating floods of 2014, that structure was fully damaged in which school was being run by the respondent No. 2. It was further alleged that the petitioner was creating unnecessary interference in the construction process and had parked a scrapped/unserviceable vehicle in the premises of property which was causing hurdles in the smooth ingress and egress of the respondent No. 2. It was also stated that the respondent No. 2 had requested the petitioner to remove the said scrapped vehicle, but he did not pay any heed to the said request. Pursuant to the directions passed by the court of Learned 1 st Additional Munsiff, Srinagar on 09.06.2023, a detailed report was filed by the respondent No. 1 stating therein that old rusted car in a dilapidated condition stood parked by the petitioner in the premises of the building, which was being earlier used as a school at Nawabazar, Srinagar and the land underneath and appurtenant to the school was being claimed by the respondent No. 2. It was also stated in the report that the vehicle was parked on spot since long and the said vehicle was in unserviceable condition. Though in terms of the report submitted by the Police before the Court of Learned 1st Additional Munisff, Srinagar, no cognizable offence was made out against the petitioner, yet in terms of order dated 02.08.2023 a direction was issued to register FIR against the petitioner. Consequent thereupon, FIR No. 26/2023 under section 441 of IPC was registered against the petitioner. After the conclusion of the investigation, the charge-sheet was also filed, which is pending adjudication before the court of learned Chief Judicial Magistrate, Srinagar.

3. The petitioner has sought the quashing of order dated 02.08.2023, FIR No. 26/2023 under section 441 IPC dated 05/08/2023 and the charge sheet pending before the court of Ld. Chief judicial Magistrate. Srinagar on the ground that no offence is made out against the petitioner, as such the continuation of the proceeding against the petitioner shall be an abuse of process of law. It is also stated that the dispute involved between the parties was purely civil which is evident from the pendency of the civil suit for declaration, partition and injunction filed by the mother of the petitioner against the respondent No. 2 and her other sisters, brother and other co-sharers in respect of the property left by the grandfather of the petitioner. It is also averred that the mother of the petitioner is co-owner/co-sharer of the property where the petitioner has parked his vehicle and the respondent No. 2 in order to grab the property of the mother of the petitioner had been creating unnecessary pressure upon the petitioner and his mother by lodging the false and frivolous FIR.

4. The respondent No. 2 has filed the objections stating therein that FIR No. 26/2023 was registered by the Police Station S R Gunj, Srinagar and the petitioner was charge-sheeted on 01.09.2023 before the Court of Learned Chief Judicial Magistrate, Srinagar. It is further stated that in order to avoid the criminal prosecutio