Lawful possession negates essential elements of theft, criminal trespass, and cheating, leading to quashing of proceedings.

JUDGMENT :

Heard the parties.

2. This Criminal Miscellaneous Petition has been filed invoking the jurisdiction of this Court under Section 482 of the Code of Criminal Procedure with a prayer to quash and set aside the entire criminal proceeding arising out of C.P. Case No.3656 of 2019 including the order dated 15.09.2022 passed by learned Judicial Magistrate-1st Class, Dhanbad whereby and where under the learned Judicial Magistrate-1st Class, Dhanbad has found prima facie case for the offences punishable under Sections 380, 453, 454, 420/34 of the Indian Penal Code against the petitioners.

3. The allegation against the petitioners is that the petitioners on 21.11.2019 at about 10:00 am went to the place of occurrence which the complainant claims to be a Government land encroached upon by him and told him to vacate the land and put a lock on the premises. Later on, the complainant obtained the documents from the court and found that the Nazir of Civil Court has misused his power. It is also alleged that the said Nazir was accompanied by the petitioner No.1 and the petitioner Nos.2 and 3 are the staffs of the petitioner No.1. The complainant filed a petition to be impleaded as a party in Execution Case No.13 of 1986 of the court of Sub Judge-I, Dhanbad. It is also alleged that on 22.11.2019, the accused persons of the case demolished the shop of the complainant and took his articles worth Rs.7-8 lakhs.

4. Learned counsel for the petitioners draws the attention of this Court towards the Annexure-6 which is the copy of the certified copy of the order dated 10.02.2020 passed by the Civil Judge (Senior Division)-1st, Dhanbad in M.C.A. No.664/2019 and M.C.A. No.665 of 2019 arising out of Execution Case No.13 of 1986 which was filed to execute the decree passed in Title Suit No.56 of 1983 and submits that therein it has categorically been held by the Civil Judge (Senior Division)-1st, Dhanbad that the complainant was not a party to the dispute and the decree has been passed in favour of the petitioner No.1 in respect of the suit land and there is no document which could be put forth by the complainant who filed the petition to be impleaded as party in the said Execution Case and also another petition under Section 47 read with Section 151 of the Code of Civil Procedure that they have encroached upon the land of the petitioners during the pendency of the case, in collusion with the judgment debtors of the said execution case. It is next submitted that before the Civil Judge (Senior Division)-1st, Dhanbad the complainant admitted that the delivery of possession of the land in question was given to the petitioner No.1. It is then submitted that, so it being an admitted case of the complainant that the petitioner has been put into possession of the place of occurrence land by the due process of law, by execution of a decree passed by the court of competent jurisdiction, hence, there is no question of any dishonest intention on the part of the petitioners to take any property out of the possession of anyone else because admittedly when the petitioner No.1 was put in possession of the property it cannot be said that he has taken the property out from his own possession. Therefore, the offence punishable under Section 380 of the Indian Penal Code is not made out against the petitioners.

5. It is next submitted that similarly in the absence of any allegation of cheating and thereby dishonestly inducing the complainant or anyone else to deliver any property, the offence punishable under Section 420 of the Indian Penal Code is not made out against the petitioners. It is next submitted that as the petitioner No.1 was admittedly put in possession of the land in question, the question of trespassing or house-breaking is not made out and in the absence of the same; neither the offence punishable under Section 453 nor the offence punishable under Section 454 of the Indian Penal Code is made out against the petitioners.

6. It is lastly submitted that as