Gurbhinder Singh vs State of Punjab and Another

Sabina, J.—Petitioner has filed this petition u/s 482 of the Code of Criminal Procedure, 1973 seeking quashing of the FIR No. 38 dated 05.05.2011 u/s 379 of the Indian Penal Code, 1860 (in short ''Act''), registered at Police Station Mehatpur, District Jalandhar and all the subsequent proceedings arising therefrom. Prosecution story, in brief, is that the petitioner and respondent No. 2 had inherited the property of their father. Petitioner and respondent No. 2 were in joint possession of 8 acres of land in village Baloki.

Case of the complainant is that both petitioner and respondent No. 2 had sown wheat crop in the said joint land. However, petitioner had harvested the crop and had sold the same without taking the consent of the complainant.

Learned counsel for the petitioner has submitted that no criminal offence could be said to have been committed by the petitioner. As per the FIR itself, petitioner and respondent No. 2 were in joint possession of the suit land. Hence, a co-sharer could not be held to be guilty of commission of offence of theft out of joint land. In support of his argument, learned counsel has placed reliance on Jaspal Singh and another Vs. State of Punjab and another, .

Learned State Counsel as well as counsel for respondent No. 2, on the other hand, have opposed the petition.

In the case of State of Haryana and others Vs. Ch. Bhajan Lal and others, the Apex Court has held as under:-

The following categories of cases can be stated by way of illustration wherein the extraordinary power under Article 226 or the inherent powers u/s 482, Cr.P.C. Can be exercised by the High Court either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently chennelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised:-

(1) Where the allegations made in the first information report or the complainant/respondent No. 2, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.

(2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers u/s 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.

(3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do no disclose the commission of any offence and make out a case against the accused.

(4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a Police Officer without an order of Magistrate as contemplated u/s 155(2) of the Code.

(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.

(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of aggrieved party.

(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceedings is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.

We also give a note of caution to the effect that the power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases; that the court will not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR or the complaint and that the extraordinary or inherent powers do not confer an arbitrary jurisdiction on the court to act according to its whim or caprice.

In the present case, petitioner as well as respondent No. 2 are joint owners in possession of the suit land. Hence, the petitioner who is a co-sharer in the suit land cannot be said to have committed the offence of theft. All the co-owners/co-sharers have equal right and interest in the property. In view of the fact that the petitioner is a co-sharer in the suit land, he cannot be criminally prosecuted qua commission of offence of theft of wheat crop. Respondent No. 2 could have sought his civil remedy by filing a suit for recovery of the amount in question. Hence, continuation of criminal proceedings against the petitioner would be nothing but abuse of process of law. Accordingly, this petition is allowed. FIR No. 38 dated 05.05.2011 u/s 379 IPC, registered at Police Station Mehatpur, District Jalandhar and all the consequential proceedings arising therefrom are quashed.