Roshan Lal Bindal vs Mohamad Sayeen and Others

Paramjeet Singh, J.—The instant application has been filed u/s 378(4) Cr.P.C. for grant of leave to appeal against the impugned judgment dated 16.01.2013 passed by the learned Chief Judicial Magistrate, Karnal, whereby complaint filed by the petitioner has been dismissed and respondents have been discharged.

Brief facts of the case as mentioned in the impugned judgment are as under:-

...the complainant purchased land measuring 32K-7M as detailed in para no. 2 of the complaint from Jagir Singh son of Phula Singh and complainant raised construction over his share over the property in question and also got constructed boundary wall over the land comprising in Khasra No. 1340/2. The Marketing Society had also purchased some land adjacent to the land of the complainant and constructed its godown for HAFED in the year 1973-74. Accused no. 2 with the help of accused no. 1 wants to grab the land of the complainant on the basis of share of marketing society. The complainant contacted accused no. 2 and 3 to explain about the existing position of the HAFED over the property in question and as per the share, HAFED was entitled to be in possession of land measuring 18K-1M, whereas HAFED was already in possession of one kanal excess land.

The complainant filed an application before Tehsildar, Assandh for getting his land comprised in khasra no. 1340/2 and godown of the HAFED demarcated and the same was got demarcated on 8.10.2004. On 20.10.2004, the complainant was shocked to hear that accused forcibly demolished his construction over the land comprised in Khasra No. 1340/2. The complainant along with Amar Nath and Sham Sunder rushed to the spot and saw that all the accused were demolishing the construction raised by the complainant on khasra no. 1340/2 with JCB machine illegally. When the complainant objected to the accused for not taking law in their own hands, accused threatened to kill him if he interfered in their work.

In order to substantiate his case in pre-charge evidence, the complainant has examined himself as CW1, Ishwar Singh, Registration Clerk as CW2, Pardeep Kumar, HRC, D.C. Office, Kaithal as CW3, Satyawan, Record Keeper, SDM Office, Assandh as CW4, Lakhbir Singh, Naib Tehsildar, Jind as CW5, Ramesh Kumar, Halqa Patwari as CW6, Sham Sunder as CW7, Om Parkash Sisodia, Retired Naib Tehsildar as CW8, Rakesh Mittal, Clerk, Sub Tehsil Assandh as CW9 and Tilak Raj as CW10.

The learned Trial Court vide judgment dated 16.01.2013, after appreciating the evidence, dismissed the complaint and discharged the accused-respondents. Hence, this application for grant of leave to appeal.

I have heard learned counsel for the petitioner and gone through the impugned judgment.

The learned trial Court, after appreciating the evidence on record, observed as under:-

After hearing the contentions of learned counsel for both the parties and perusing the entire record carefully and thoroughly, this Court is of the considered opinion that the admitted facts of the case are that earlier the property in question was owned and possessed by Jagir Singh son of Phula Singh. It is also not disputed that complainant had purchased land measuring 32K-7M vide registered sale deed no. 1964/1 dated 16.6.1977. It is also not disputed that Marketing Society had also purchased land measuring 18K-1M vide registered sale deed dated 14.9.1972. CW1 in his cross-examination has admitted that the land which was purchased by him and land purchased by HAFED from Cooperative Society has not been partitioned so far from the competent court of law and since complainant and marketing society has purchased this share in the joint land and unless and until the joint land is partitioned by competent authority, no co-sharer can claim their exclusive possession and every co-sharer has right over every inch of unpartitioned land and that admission of CW1 also falsify the contention of learned counsel for the complainant that the land in question has already been partitioned. Admittedly, the land in question falls within the limit of Municipal Committee and CW1 has admitted that he has not got approved the site plan before raising construction over it and he has not got assessed any loss sustained by him from architect. The complainant has also not placed on file any photograph of the demolition of his construction. So, in absence of these evidence, it cannot be presumed that complainant has sustained any damage by the mischief committed on the part of the accused and accused have committed criminal trespass over the exclusive land of the complainant.

Even otherwise, as per the testimony of complainant and his brother CW7 Sham Sunder, they were present on the site at the time of alleged demolition, but as per Ex. C2 i.e. the application which was given by the complainant himself on 21.10.2004 to the authorities, the complainant came to know about the incident of demolition from Journalist in the night. Meaning thereby, neither the complainant nor his brother i.e. CW7 was present at the time of alleged demolition of the construction of the complainant by the accused. Moreover, CW1 and CW7 have admitted in their cross-examination that about 40-50 persons were present at the site, but complainant has not examined any one of these persons who were present at the time of alleged incident took place.

Though, on the basis of Ex. CW4/A and Ex. CW7/A, it is evident that HAFED has raised construction over the land measuring 19K-1M, but merely on the basis of these reports Ex. CW4/A and Ex. CW7/A, it cannot be presumed that accused have demolished the construction of the complainant comprised in khasra no. 1340/2. So far as the offence punishable u/s 506 of IPC is concerned, CW1 and CW7 in their cross-examination have admitted that they did not specifically named all the person who threatened to kill the complainant. Moreover, CW1 in his cross-examination has admitted that he has not deposed regarding criminal intimidation on the part of the accused in his testimony in preliminary evidence dated 13.3.2007. More so, Ex. C2 i.e. Application dated 21.10.2004 has also not contained that accused have ever threatened to kill the complainant.

Undoubtedly, in order to attract the provisions contained u/s. 197 Cr.P.C. there must be reasonable connection between act and the discharge of official duty and in the instant case, complainant himself has admitted in his cross-examination that at the time of occurrence accused were posted in their official capacity. So, it cannot be said that accused were not having any reasonable connection with their act and discharge of their official duty. Consequently, I have no doubt regarding the law laid down in case State of H.P. vs. M.P. Gupta (supra) and Sarwan Singh vs. Suresh Chand Mathur and others (supra), the law laid down in these cases are not applicable to the facts and circumstances of the present case.

I have no doubt regarding the law laid down in State of Orissa and another vs. Saroj Kumar Sahoo (supra) and Mona Panwar vs. High Court of Judicature at Allahabad and others (supra), but the law laid down in these cases are not applicable to the facts and circumstances of the present case, because in the (supra) cases, the case was initiated on the basis of FIR, whereas, in the present case, case was initiated on the basis of criminal complaint. Section 245(1) Cr.P.C., provides as under:

If, upon taking all the evidence referred to in section 244, the Magistrate considers, for reasons to be recorded, that no case against the accused has been made out which, if unrebutted, would warrant his conviction, the Magistrate shall discharge him.

In the instant case, complainant Allarakha K. Mansuri Vs. State of Gujarat, , held that where, in a case, two views are possible, the one which favours the accused, has to be adopted by the Court. This view has been reiterated in State of Goa Vs. Sanjay Thakran and Another, , and ''Chandrappa v. State of Karnataka, (2007) 4 SCC 415''.

A Division Bench of this Court in State of Punjab Vs. Hansa Singh while dealing with an appeal against acquittal, has opined as under:-

We are of the opinion that the matter would have to be examined in the light of the observations of the Hon''ble Supreme Court in Ashok Kumar Vs. State of Rajasthan, which are that interference in an appeal against acquittal would be called for only if the judgment under appeal were perverse or based on a misreading of the evidence and merely because the appellate Court was inclined to take a different view, could not be a reason calling for interference.

In Mrinal Das and Others Vs. The State of Tripura, decided on September 5, 2011, the Hon''ble Supreme Court, after looking into many earlier judgments, has laid down parameters, in which interference can be made in a judgment of acquittal, by observing as under:

An order of acquittal is to be interfered with only when there are "compelling and substantial reasons", for doing so. If the order is "clearly unreasonable", it is a compelling reason for interference. When the trial Court has ignored the evidence or misread the material evidence or has ignored material documents like dying declaration/report of ballistic experts etc., the appellate court is competent to reverse the decision of the trial Court depending on the materials placed.

Similarly, in the case of State of Rajasthan Vs. Shera Ram @ Vishnu Dutta, , the Hon''ble Supreme Court has observed as under:-

A judgment of acquittal has the obvious consequence of granting freedom to the accused. This Court has taken a consistent view that unless the judgment in appeal is contrary to evidence, palpably erroneous or a view which could not have been taken by the court of competent jurisdiction keeping in view the settled canons of criminal jurisprudence, this Court shall be reluctant to interfere with such judgment of acquittal.

The penal laws in India are primarily based upon certain fundamental procedural values, which are right to fair trial and presumption of innocence. A person is presumed to be innocent till proven guilty and once held to be not guilty of a criminal charge, he enjoys the benefit of such presumption which could be interfered with only for valid and proper reasons. An appeal against acquittal has always been differentiated from a normal appeal against conviction. Wherever there is perversity of facts and/or law appearing in the judgment, the appellate court would be within its jurisdiction to interfere with the judgment of acquittal, but otherwise such interference is not called for.

Thereafter, in the above case a large number of judgments were discussed and then it was opined as under:-

There is a very thin but a fine distinction between an appeal against conviction on the one hand and acquittal on the other. The preponderance of judicial opinion of this Court is that there is no substantial difference between an appeal against conviction and an appeal against acquittal except that while dealing with an appeal against acquittal the Court keeps in view the position that the presumption of innocence in favour of the accused has been fortified by his acquittal and if the view adopted by the High Court is a reasonable one and the conclusion reached by it had its grounds well set out on the materials on record, the acquittal may not be interfered with. Thus, this fine distinction has to be kept in mind by the Court while exercising its appellate jurisdiction. The golden rule is that the Court is obliged and it will not abjure its duty to prevent miscarriage of justice, where interference is imperative and the ends of justice so require and it is essential to appease the judicial conscience.

Learned counsel for the petitioner has failed to show any error of law or on facts on the basis of which interference can be made by this Court in the judgment under challenge. As such, this application for leave to appeal is dismissed.