Lalesab vs Mahaboobbee and Others

K.N. Phaneendra, J.—A private complaint is being filed by the respondent in Criminal Petition No. 200164/2014 against the petitioner before the Civil Judge and JMFC, Sindagi in CC. No. 304/2012 and the learned Magistrate took cognizance of the complaint, recorded sworn statement of the complainant and ordered to register a case against the petitioner herein for the offences punishable under Sections 147, 148, 323, 393, 447, 504, 506, r/w 49 of IPC.

I have heard the arguments of the learned counsels for the petitioner as well as respondents and also learned High Court Government Pleader.

The petitioner herein is arrayed as accused No. 1 in the said private complaint. It is alleged by the complainant (respondent No. 1 in Criminal Petition No. 200164/2014) that the land bearing Sy. No. 46/2 measuring 15 acres 38 guntas of Shakapur Village is in possession and enjoyment of the complainant and Dawalsab Imamsab Mulla and etc. she has got 1/6th share in the said property and for that she has filed a suit in this background. It is alleged that the accused No. 1 Lalbi Ladakagol and Dawalsab Mulla were fighting for the said property and there are civil disputes between the parties and there is second appeal pending before this Court in R.S.A. No. 1216/2005. It is alleged that the complainant has raised crop in Sy. No. 46/2 along with her son. The accused persons particularly petitioner and other accused on 04.12.2011 formed into an unlawful assembly and went to the said land and harvested the crop and in that context when questioned by the complainant they assaulted the complainant abused them with filthy language and threatened them with dire consequences of killing them and taken away the crop to the extent of 40 to 50 bags of the crop. The complainant in fact approached the police they did not take any action therefore she approached the Court by way of private complaint. At the initial stages the Court has referred the said complaint for investigation and report under Section 156(3) of Cr.P.C. The Police in fact filed ''B'' summary report. The complainant has filed the protest petition and contested the proceedings. The learned Magistrate recorded the sworn statement and also examined two witnesses CWs.2 and 3. On going through the contents of the complaint, sworn statement the Court has come to the conclusion that there is prima facie case for the purpose of taking cognizance and issuing summons against the accused persons for the above said offences. Accordingly, the Court has issued process against the accused Nos. 1 to 6. The said order is challenged before this Court by accused No. 1 (petitioner herein).

Looking to the above said facts and circumstances except the complaint averments the petitioner has not produced any materials before the Court to show the pendency of the civil suits between the parties and what are the orders passed by the civil Court and also what exactly the subject matter pending before the civil Court except producing RTC extracts pertaining to Sy. No. 46/2 and also xerox copy of the bailiffs report in execution petition No. 23/2009, wherein the said document refers to Sy. No. 46/3 and not to Sy. No. 46/2. Therefore, the petitioner who approached this Court has not produced sufficient materials to show that he has been in possession and enjoyment of the said property and he never tress passed into the land or committed any offences. On the other hand the complaint averments discloses that on 04.12.2011 the accused persons went to the said land assaulted the complainant abused them with filthy language and threatened them with dire consequences of killing them and also harvested the crop. The above said allegations at this stage cannot be said that they do not constitute any offences at all, therefore, an enquiry by the Court is required to ascertain after appearance of the accused who is in possession of the said land and who grown the crops and who harvested the crop, whether there was any offences committed by the accused persons and they have stealthily taken away the crop etc. has to be trashed out by the Court.

It is a private complaint before the learned Magistrate and the Court has to examine the witnesses before framing of charges under Section 244 of Cr.P.C. In that event the accused persons would get sufficient opportunity to produce all the necessary documents before the Court to establish their possession and to show that they have not made any offences to proceed against them by framing of charges. Therefore, under the above said circumstances when the allegations made in the complaint are sufficient to constitute offences which are supported by the sworn statement and statement of the witnesses. The Magistrate is bound to take the cognizance and summoned the accused to answer the queries. The documents produced before the Court, RTC extracts and another xerox copy of the mahazar in execution petition at this stage does not conclusively establish that a false complaint has been foisted against the petitioner in order to quash the entire proceedings.

It is seen from the records in Criminal Petition No. 200165/2014 with reference to the same incident one Mahboobsab S/o Davalsab Mulla has filed a complaint against the petitioner and other persons wherein petitioner is arrayed as accused No. 3. On the basis of such similar allegations the police have registered a case in Crime No. 110/2011, investigated the matter and filed the charge sheet in C.C. No. 44/2012, and the said case is also before the same Court.

Looking to the above said circumstances, it appears on the basis of the private complaint of the Mahaboobi, ''B'' report was submitted by the police wherein on the complaint lodged by Mahiboobsab, investigation has been done and police have submitted the charge sheet. Though some discrepancy is their with regard to the timings, it appears the incident is same with reference to the Sy. No. 46/2 and the allegations against the accused persons in both the cases are same. Therefore, under the above said circumstances, as both the cases are before the same Magistrate i.e. JMFC, Sindagi, Magistrate has to enquire into the matter by applying the provision under Section 210 of Cr.P.C. and has to proceed with the matter in accordance with law.

Section 210 of Cr.P.C. envisages that;

"(1) When in a case instituted otherwise than on a police report i.e. compliant case, it is made to appear to the Magistrate, during the course of the inquiry or trial held by him, that an investigation by the police is in progress in relation to the offence which is the subject-matter of the inquiry or trial held by him, the Magistrate shall stay the proceedings of such inquiry or trial and call for a report on the matter from the police officer conducting the investigation.

(2) If a report is made by the investigating police officer under section 173 and on such report cognizance of any offence is taken by the Magistrate shall inquire into or try together the complaint case and the case arising out of the police report as if both the cases were instituted on a police report.

(3) If the police report does not relate to any accused in the complaint case or if the Magistrate does not take cognizance of any offence on the police report, he shall proceed with the inquiry or trial, which was stayed by him, in accordance with the provisions of this Code."

Applying the above said statutory provision to the above cases, it is clear that on the basis of the private complaint also the Magistrate has already taken cognizance and issued summons to the accused for their appearance and simultaneously it appears that the police have also conducted the investigation on the same subject matter and submitted the charge sheet. Therefore, now it is incumbent upon the Magistrate to ascertain that whether in both the cases the accused are same and if so he has enquire into the matter try both the matters together as if both the cases were instituted on a police report. Therefore, the Magistrate has to bestow his attention to look into both the matters and try the case appropriately in accordance with law, in the light of the observation made above.

On perusal of the complaint averments and the charge sheet papers as I have already referred to there are allegations constituting the offences alleged against the petitioner herein who is arrayed as accused No. 1 in the complaint case and accused No. 3 in the police case. Therefore, the question of quashing the proceedings in the private complaint or the police report does not arise at this stage. However, the proceedings before the Magistrate is governed by the provisions under Section 210 of Cr.P.C. With these observations both the petitions deserves to be dismissed.

Accordingly, the petitions are dismissed.

Office is directed to send a copy of this order to the JMFC, Sindagi for further necessary action.