Karnail Singh vs Risal Singh

Harmohinder Kaur Sandhu, J.

Karnail Singh has filed the present petition under Section 482 of the Code of Criminal Procedure for quashing the complaint Annexure P/1 under Sections 379/506 I.P.C. and the summoning order dated 17.8.1989 Annexure P/2 and all proceedings relating thereto.

The complaint Annexure P/1 was filed by Risal Singh respondent against the petitioner and 17 others on the allegations that his father Shri Soran owned seven killas of land situated in the area of village Samani, Land of Roop Singh, uncle of the petitioner, adjoined the land of Shri Soran. About 1012 years before the filing of the complaint, father of the complainant planted 72 eucalyptus trees in his land close to the boundary. Roop Singh and his sons tried to cut those trees which led Shri Soran to file a civil suit in the civil courts at Karnal. An interim injunction was granted in that suit restraining Shri Roop Singh and his sons from cutting the trees and interfering in the lawful possession of the father of the complainant. The matter was also reported to the police, but the police did not take any action and simply initiated security proceedings against both the parties. On 12.1.1988 at about 8.00 P.M. Roop Singh and 17 other accused came to the land armed with deadly weapons and started cutting the trees. They were asked to refrain from doing so as there was injunction order against them and the trees did not belong to them, but they cut the trees and took away the same on tractors. They also threatened the complainant with dire consequences. A report was made regarding this incident to the police at Police Station, Butana, but no action was taken.

After preliminary evidence was recorded the trial Court found that prima facie case was made out against the accused for offences under Sections 379, 506 IPC. Hence they were summoned to stand trial for these offences vide order Annexure P/2. Out of 18 accused, 11 of them assailed the order of summoning by filing a revisions petition which was decided by the learned Sessions Judge, Kurukshetra, vide order Annexure P/4. The Sessions Judge held that although all the accused were named in the complaint yet the witnesses examined at preliminary stage did not name them specifically except Roop Singh, Karnail Singh and Gurnam Singh. It was, therefore, held that no prima facie case was made out against those persons, but revision petition of Roop Singh and Gurnam Singh was dismissed and they were directed to appear in the trial Court for further proceedings in the case. The present petitioner Karnail Singh had not preferred any revision petition and he invoked the inherent powers of this Court after revision petition of Roop Singh and Gurnam Singh was dismissed.

The petitioner alleged that Roop Singh had got the land demarcated and the revenue officials found that the trees which were removed were standing on the land of Roop Singh. Civil litigation was already pending between the parties and the trees were cut under the bona fide belief that the same belonged to Roop Singh so owner of the trees could not be held liable for any offence of theft.

The respondent did not file any return.

I have heard Mr. A. S. Virk, Advocate, the learned counsel for the petitioner and Mr. Rajnish Narula, the learned counsel for the respondent and hence perused the documents.

The learned counsel for the petitioner submitted that as per demarcation of the land conducted by the revenue officials, the trees in question were found standing on the land belonging to the uncle of the petitioner and there was no question of committing theft of ones own property. Moreover, as per averments made in the complaint itself father of the complainant had filed a civil suit with respect to the trees and an injunction had been issued against Roop Singh and others restraining them from cutting the trees and if the trees were removed by Roop Singh and others, the proper course for the complainant was to bring it to the notice of the Civil Court for taking action against the persons who disobeyed the order of the Court. The contention of the learned counsel is without merit. The petitioner has not produced copy of any report regarding demarcation of land by the revenue officials to show that the trees were situated in the land belonging to Roop Singh. Any report by the police in the daily diary register regarding demarcation by the revenue department is of no avail to the petitioner as there are specific averments in the complaint that the police did not take any action against the accused as the police officials were colluding with them and they recorded a report in the daily diary register according to their own whims. It is well settled by a long course of decisions that for the purpose of exercising its powers under Section 482 Cr.P.C. to quash a complaint this Court would have to proceed entirely on the basis of the allegation made in the complaint or the documents accompanying the same. The test to be applied is whether the uncontroversial allegations as made, prima facie establish the offence. The complainant alleged that the trees were planted by his father in his own and the same were cut and removed by the petitioner and others in spite of the fact that there was an injunction order against them restraining them from cutting the trees. Prima facie the property which the complainant claimed to be that belonging to his father was taken out of this possession. In a case where the alleged theft consists of removal of trees or crop, the most vital question to be investigated is as to which of the parties had grown the trees. In the instant case there are specific allegations that the trees were sown by the father of the complainant and were wrongfully removed by the petitioner and others with a dishonest intention. A prima facie case was, therefore, made out against the petitioner who was specifically named as one of the accused by the witnesses examined at preliminary stage. The petitioner did not assail the summoning order by moving revision petition. Rather he kept waiting and after about four years of the passing of the order he invoked the inherent jurisdiction of this Court. I find no merit in this petition and dismiss the same.