Bachan Singh vs State of Uttarakhand

@DELETEUPPERDATA

Umesh Chandra Dhyani, J.—A criminal complaint case was filed by respondent No. 2 against the applicants in the Court of Special Judicial Magistrate, Tehri Garhwal. Accused-applicants were summoned to face the trial for the offences punishable under sections 147, 379 & 149 IPC. Thereafter, complainant adduced evidence under section 244 Cr.P.C. On the basis of such evidence, learned Trial Court came to the conclusion that there was sufficient material on record to frame the charge against the applicants. The objections raised on behalf of the applicants were dismissed. The charge was yet to be framed. Aggrieved against the impugned order dated 11.11.2013, passed by learned Chief Judicial Magistrate, Tehri Garhwal, a criminal revision was preferred, which was dismissed. Aggrieved against the order dated 20.3.2014 of Re-visional Court, present application under section 482 Cr.P.C. is filed by the applicants.

The allegation against the applicants, in a nutshell, is that they committed theft of crops standing on the land of respondent No. 2. Respondent No. 2 was sent notices by this Court, but none appeared for him despite service of notice. Registry made an endorsement on 5.5.2014 that respondent No. 2 was served personally. When present petition was listed for hearing before this Court on 27.5.2014, 14.8.2014, and even today, none appeared for respondent No. 2. Hence, present application under section 482 Cr.P.C., is being disposed of after hearing learned Counsel for the applicants and respondent-State.

It is the contention of learned Counsel for the applicants that the land in question belonged to applicant No. 1. To substantiate his arguments, learned Counsel for the applicants relied upon the judgment dated 2.7.2008, passed by Assistant Collector, Ghansali, District Tehri Garhwal, in section 229-B of U.P.Z.A. & L.R. Act proceedings. The revenue suit filed on behalf of applicant No. 1 was decreed. The said judgment was challenged by respondent No. 2 before Additional Commissioner, Garhwal Division, who dismissed the appeal vide order dated 27.6.2012. Still aggrieved against the same, respondent No. 2 approached the Board of Revenue, who allowed the appeal on a technical plea holding that the original Bhumidhar was not arrayed as respondent and granted the liberty to seek declaration in terms of said land afresh under section 229-B of U.P.Z.A. & L.R. Act.

An Original Suit No. 28/2009 was filed by the respondent No. 2 against applicant No. 1 and others for obtaining decree for permanent prohibitory injunction. The suit filed on behalf, of respondent No. 2 was dismissed by learned Civil Judge, Tehri Garhwal vide judgment and order dated 28.10.2010. Aggrieved against the same, a civil appeal was preferred by respondent No. 2 which Civil Appeal No. 16/2010 was decided by learned Additional District Judge, Tehri Garhwal on 25.8.2012. The appeal was dismissed. The judgment and order dated 28.10.2010 passed by learned Trial Court was affirmed. It is the statement of learned Counsel for the applicants that the order dated 28.8.2012 passed by learned Sessions Judge, Tehri Garhwal was not challenged by respondent No. 2 in any higher Court and the same has, therefore, attained finality.

A perusal of the judgments rendered by learned Civil Judge (Junior Division), Tehri Garhwal and learned Additional District Judge, Tehri Garhwal will reveal that the civil suit and appeal thereof filed by respondent No. 2 in respect of the land, which is mentioned in the criminal complaint case, has been dismissed. In other words, the description of land in the criminal complaint case filed by respondent No. 2, original suit and civil appeal arising therefrom are the same. The applicant No. 1 has been held to be the Bhumidhar in possession of the land, in respect of which the respondent No. 2 alleged that the applicants committed theft of their crop. When the land in question has been held to be in possession of the applicant No. 1, how can it be said that he alongwith co-applicants committed theft of the crop standing thereon?

There is verdict of Civil Court in favour of the applicant No. 1 in respect of the land in question. The allegations levelled against the applicants, in the criminal complaint case, therefore, fall on the ground. No allegation, even prima facie, is substantiated against the applicants in respect of offences punishable under sections 147, 379 & 149 IPC. When foundation of criminal offence is not laid against the applicants, therefore this Court should quash the proceedings pending against them, in view of the decision of Hon''ble Apex Court in Amit Kapoor Vs. Ramesh Chander and Another, The applicants succeed in view of the aforesaid discussion and as a consequence thereof, criminal proceedings pending against them in the Court of Chief Judicial Magistrate, Tehri Garhwal (being Criminal Case No. 346/2014), titled as Shoorvir Singh and Bachan Singh and others, are set aside.