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2013 Supreme(MP) 418
HIGH COURT OF MADHYA PRADESH
D.K. Paliwal, J.
Uttam and others v. Bhagwati
Miscellaneous Criminal Case No.3185 of 2012 (Gwalior);
Decided on 1.8.2013.
Subject
Criminal Law - Quashing of Criminal Proceedings
Act Referred
INDIAN PENAL CODE : S.379
Headnote
Held : In the instant case as noticed earlier, though the suit of the respondent claiming possession and permanent injunction against the petitioners in respect of survey Nos.1443, 1444 and 1445 was decreed by the Courts below, but this Court vide order dated 11.10.2011 passed in Second Appeal No.380/11 granted the stay in favour of the petitioners and hence it cannot be said that the possession of the petitioners over the said land was illegal. Hence, it can safely be said that there was an absence of the animus fruandi and the circumstances bring this case within the rule that where the taking of movable property in the assertion of a bona fide claim of right, the act, though it may amount to a civil injury, does not fall within the offence of theft. AIR 1965 SC 588 followed.
[Para 9
(2) Criminal P.C., 1973 -- Ss.482 and 397 -- dispute between the parties prima facie of civil nature -- continuance of criminal proceedings amounts to an abuse of the process of Court -- invoking of inherent jurisdiction of High Court to quash the aforesaid criminal proceedings not bad in law. (2012)9 SCC 460 discussed. [Paras 6 & 10
¼1½ naM lafgrk] 1860 & /kkjk 379 & Hkwfe ij dCts ds laca/k esa flfoy eqdnek yafcr & ;kph ogk¡ ls vf/kdkj ds ln~Hkkoiw.kZ nkos ds izk[;ku esa Qly ys x;k & pksjh dk vijk/k ugha cukA
vfHkfu/kkZfjr % izLrqr ekeys esa ;Fkk iwoZ&vosf{kr ;|fi losZ dz- 1443] 1444 rFkk 1445 ds laca/k esa izR;FkhZ )kjk ;kphx.k ds fo:) dCts rFkk LFkk;h O;kns’k dk nkok djus okyk okn fupys U;k;ky;ksa )kjk fMdzh fd;k x;k Fkk] ijarq bl U;k;ky; us f)rh; vihy dz- 380 lu~ 2011 esa ikfjr vkns’k fnukad 11-10-2011 )kjk ;kphx.k ds i{k esa jksd Lohd`r dh rFkk blfy, ;g ugha dgk tk ldrk fd mDr Hkwfe ij ;kphx.k dk dCtk voS/k FkkA blfy,] ;g lqjf{kr :i ls dgk tk ldrk gS fd diV djus dk vHkko Fkk rFkk ifjfLFkfr;k¡ ekeys dks bl fu;e ds varxZr ykrh gSa fd tgk¡ taxe laifr dk ysuk vf/kdkj ds ln~Hkkoiw.kZ nkos ds izk[;ku esa gS ogk¡ d`R;] ;|fi ;g flfoy {kfr ds rqY; gks ldrk gS] pksjh ds vijk/k ds varxZr ugha vkrkA , vkb vkj 1965 ,l lh 588 vuqlfjrA
¼iSjk 9½
¼2½ naM izfdz;k lafgrk] 1973 & /kkjk 482 rFkk 397 & i{kdkjksa ds e/; fookn izFken`”V~;k flfoy izd`fr dk & naM dk;Zokfg;ksa dk tkjh jguk U;k;ky; dh izfdz;k ds nq:i;ksx ds rqY; & iwoksZDr naM dk;Zokfg;ksa dks vfHk[kafMr djus ds fy, mPp U;k;ky; dh varfuZfgr vf/kdkfjrk dk voyac fof/k ds vuqlkj nks”kiw.kZ ughaA ¼2012½9 ,l lh lh 460 foosfprA
¼iSjk 6 ,oa 10½
Arun Dudawat for petitioners;
Anil Mishra for respondent.
1. Invoking the extraordinary jurisdiction of this Court under section 482 of the Code of Criminal Procedure, petitioners have filed this petition to quash the order dated 27.12.2011 passed by JMFC Vijaypur District Sheopur in private complaint No.705/2011, whereby cognizance for the offence punishable under section 379 of IPC has been taken against the petitioners.
2. The facts in brief are that respondent has filed a private complaint against the petitioners alleging that respondent is owner of land bearing survey No.1444 area about 7.5 Bigha. Roop Singh and Bharat were the Bataidars, who had sown gram crop on the aforesaid land. On 1.4.2011 and 2.4.2011 the crop was harvested and was kept in the field. It is further alleged that on 2.4.2011 in the night both Bataidars, Roop Singh and Bharat, went to their house for sleeping and when they reached on the next day in the morning, they found that the petitioners were keeping the crop of the complainant in their house situated near the agricultural field. The Bataidars of the complainant objected, then petitioners abused them and threatened them to kill. The Bataidars informed the incident to the brother of the complainant, who reached to police station for lodging the report. He made written complaint, but no receipt has been given. Police has not taken any action, therefore, private complaint has been filed by the complainant under section 379 of the IPC against the petitioners. Learned JMFC after recording the statements under sections 200 and 202 of CrPC has taken the cognizance against the petitioners for the offrence punishable under section 379 of the IPC and summoned the petitioners through bailable warrant.
3. It is submitted by the learned counsel for the petitioners that petitioners are in regular and permanent possession of the agricultural land bearing survey Nos.1444, 1443 and 1445 admeasuring 7.5 Bigha. The respondent has earlier filed a civil suit for possession and permanent injunction in respect of aforesaid land claiming his rights over the said land. It was the case of the respondent that petitioners are in illegal possession of the said land. On the basis of the pleadings of parties, the trial Court has framed issues and thereafter parties led their evidence. The trial Court decreed the suit, against which the petitioners have preferred a civil appeal, which was allowed and the matter was remanded back to the trial Court. Thereafter again the suit was decreed which was again challenged by the petitioners before the District Judge, Sheopur and the appeal has been dismissed against which the petitioners have filed Second Appeal bearing No.380/11 which is pending before this Court.
4. It is further submitted that this Court has granted interim relief staying the execution of the judgment and decree vide order dated 11.10.2011. The respondent with a view to harass the petitioners has made a false complaint to SHO, Police Station, Ghaswani, which was not entertained by the Police Officer.Thereafter, abusing the process of law, a false complaint has been filed. Learned JMFC without following the procedure laid down in section 156(3) of the CrPC has taken cognizance against the petitioners for the offence punishable under section 379 of IPC which is patently illegal and contrary to the provisions of CrPC and record. It is well settled position of law that dispute with regard to the agricultural land is purely civil litigation and no person should be allowed to file such a frivolous complaint and abuse the process of law. The complaint made against the petitioners is wholly concocted and filed with a ulterior motive to harass the petitioners. It is prayed that the order passed by the learned Magistrate dated 27.12.2011 in private complaint No.705/11 be set aside.
5. Learned counsel for the respondent has submitted that the petition is not maintainable. The petitioners have remedy to challenge the order taking cognizance against them by the JMFC by way of revision b
