Murari Sharma vs State of M.P. and Another

D.K. Paliwal, J.—This petition has been preferred u/s 482 of Cr.P.C. against the order dated 9.9.2011 passed by 1st ASJ, Bhind in Cri. Rev. No. 34/2011, whereby the order dated 17.1.2011 passed by JMFC, Mehgaon in Cri. Case No. 719/2009 regarding framing of charge u/s 379 IPC has been affirmed. The brief facts of the petition are that complainant/respondent No. 2 had filed a complaint at P.S. Gorami alleging that he has sold his land, which was in possession of the complainant in which the crop of mustered was standing, which was cut by the complainant and keep in the field. When respondent No. 2 reached the field he saw that accused persons were taking the crop in their tractor. On the basis of the report, investigation was conducted and after completion of investigation challan has been filed against the petitioner in the Court of JMFC, Mehgaon, which was registered as Cri. Case No. 719/2009. Learned trial Court has framed the charge u/s 379 of IPC against which petitioner had preferred revision petition before 1st ASJ, Bhind, which has been dismissed and the order of framing of charge has been affirmed. Being aggrieved petitioner has preferred this petition.

Learned counsel for the petitioner has submitted that order passed by the learned Courts below are illegal. It is submitted that respondent No. 2 complainant has suppressed the fact that civil suit was pending between the parties in the Court at Mehgaon in which injunction order was passed in favour of the petitioner, therefore, it cannot be said that petitioner had committed theft of the crop. It is further submitted that petitioner has preferred criminal revision on the ground that petitioners was in possession of the land, but the learned revisionary Court had given the findings that this question could be determined after recording of evidence. This finding is illegal because in the instant case the title cannot be declared. It is further submitted that respondent No. 2 complainant is habitual to lodge the reports against the petitioners. It is submitted that several complaints have been filed against the petitioners in which petitioners have been acquitted.

Learned counsel for the respondent has submitted that prima facie the charge u/s 379 of IPC has rightly been framed by the learned JMFC.

I have considered the rival submissions of the parties and perused the record. In the report lodged by the respondent No. 2 Vishunlal, it has been mentioned that he has sold his 5 Bigha agricultural land namely "Patiawala Khet" bearing survey No. 897 and 907 to Abhishek Singh in the month of Aashadh. He has sown the Sarso crop in the Khet, which has been cut by him and the crop was kept in the field. Petitioners came there and took his crops on tractor trolley.

From perusal of the order passed by Addl. Tehsildar in Case No. 01/04-05A-46 on 24.10.2005, it appears that it has been directed that land bearing survey No. 896, 907 be recorded in favour of Subhashchandra as Bhumiswami. From perusal of the order passed by 2nd ADJ, Bhind in Civil Appeal No. 6/2008 on 17.7.2009, it appears that settled possession of Subhashchandra has been found on the agricultural land bearing survey No. 896, 709. From the order passed in Cri. Rev. No. 375/2009 on 20.12.2011 it appears that petitioners have preferred this revision petition for quashment of the charges framed against them vide order dated 2.2.2011 on the complaint of Vishunlal Jatav for the offence punishable u/s 447, 506(B) of IPC and u/s 3(i)(x), 3(1)(iv) of SC, ST (Prevention of Atrocities) Act passed in S.T. No. 33/2010, it has been held that complainant has no legal right or possession on the disputed land bearing survey no. 896, 709 regarding which charge for criminal trespass has been framed against the petitioners.

In Civil Suit No. 40-A/2011 filed by the petitioner Subhashchandra, finding has been recorded by the learned Civil Judge that Subhashchandra has not succeeded in proving title and possession over the land bearing survey No. 896, 907. In the light of this decision possession of respondent No. 2 is fully proved. It is true that in the civil suit possession of petitioner Subhashchandra on the land bearing survey No. 896, 907 has not been found proved. However, considering the fact that civil litigation was pending. Report of the incident has been lodged by the respondent complainant. The petitioner is claiming his possession over the land and the complainant is claiming his possession. Even if it is accepted for the sake of argument that petitioners took away the crops the question remains whether the alleged act of the petitioners falls within the purview of Section 379 of the IPC. The offence of theft consists in the dishonest taking of any movable property out of the possession of another without his consent. Dishonest intention exists when the person so taking the property intends to cause wrongful gain to himself or wrongful loss to the other. This intention is known as animus furandi and without it the offence of theft is not complete.

The Hon''ble Apex Court in the matter of Chandi Kumar Das Karmarkar and Another Vs. Abanidhar Roy, has observed as under.:-

Now the ordinary rule that mens rea may exist even with an honest ignorance of law is sometimes not sufficient for theft. A claim of right in good faith, if reasonable, saves the act of taking from being theft and where such a plea is raised by the accused it is mainly a question of fact whether such belief exists or not. This Court in Cri. Appeal No. 31 of 1961 in the matter of Suvvari Sanyasi Apparao and Another Vs. Boddepalli Lakshminarayana and Another, observed as follows.:-

It is settled law that where a bona fide claim of right exists, it can be a good defence to a prosecution for theft. An act does not amount to theft, unless there be not only no legal right but no appearance or colour of a legal right.

By the expression "colour of a legal right" is meant not a false pretence, not a complete absence of claim but a bona fide claim, however weak.

If there be in the prisoner any fair pretence of property or right, or if it be brought into doubt at all, the court will direct an acquittal.

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Niyogi, J. in his judgment also referred to some of the decisions of the Calcutta High Court and we find ourselves in particular agreement with the following statement of the law in Hamid Ali Bepari Vs. Emperor,

It is not theft if a person acting under a mistaken notion of law and believing that certain property is his and that he has the right to take the same.... removes such property from the possession of another.

In the instant case as noticed earlier that on the basis of possession of the petitioner Bhumiswami right was given to him by the Tehsildar in civil suit holding possession of the petitioner the injunction was granted. It can safely be said that there was an absence of the animus furandi 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.

In view the aforesaid analysis the continuance of criminal proceedings against the petitioners would be abuse of process of the Court. The petition deserves to be allowed. Consequently, the petition is allowed. The order dated 17.1.2011 passed by JMFC, whereby charge was framed against the petitioners for the offence punishable u/s 379 of IPC is hereby quashed.

Copy of the order be sent to the concerned Court for necessary action and compliance. Petition is disposed of.