Takhshila and Others vs State of Rajasthan and Others

Vijay Bishnoi, J.—This criminal misc. petition under Section 482 Cr.P.C. has been filed by the petitioner with the prayer for quashing FIR No. 97/2012 of Police Station, Shivganj, District Sirohi for the offences punishable under Sections 448, 380 and 427 I.P.C.

The impugned FIR has been lodged by the respondent No. 2 while contending that a residential house situated in town Shivganj at Ambica Chowk, Mochi Kuwan was in her ownership and possession as her father and mother have alienated the said house in her favour through a registered Will. It is contended that mother of respondent No. 2 died in Mumbai on 17.4.2012 and during the period when she was in Mumbai, the accused persons entered into her house and forcibly took possession of the said house. It is further contended that the accused persons committed theft and also destroyed the property amounting to Rs. 25,000/-. It is further alleged that on 5.5.2012, when she tried to enter into the house, the accused persons stopped her by using force.

Learned counsel for the petitioners has argued that prior to the impugned FIR, the respondent No. 2 filed a complaint before the S.H.O., Police Station, Shivganj in respect of the alleged incident wherein it is mentioned that the accused persons trespassed into her house on 4.5.2012. It is also argued that the respondent No. 2 has also filed a complaint before the Superintendent of Police, Sirohi on 18.5.2012 wherein it is mentioned that the accused persons forcibly entered into the house of the petitioner on 18.4.2012. It is contended that in every complaint the respondent No. 2 has given different date of incident and this fact itself is sufficient to conclude that allegation levelled in the impugned FIR are false.

Learned counsel for the petitioner has also submitted that the petitioner No. 1 has also filed an FIR on 10.9.2012 wherein she alleged that the respondent No. 2 is trying to dispossess her from the disputed house. It is argued by learned counsel for the petitioners that the respondent No. 2 is claiming ownership over the disputed house on the basis of a Will executed in her favour by her mother and father whereas the petitioners are claiming ownership over the disputed house on the basis of another Will executed by father of respondent No. 2 in favour of petitioner No. 2. Learned counsel for the petitioners has further informed that the respondent No. 2 has already filed a civil suit claiming eviction of the petitioners from the disputed house. It is also informed that the house in question has been attached in the proceedings under Sections 145 and 146 Cr.P.C. and the S.H.O., Shivganj has been appointed as Receiver. Learned counsel for the petitioners has argued that the dispute between the parties is of civil nature and has been given color of criminal offence and, therefore, the impugned FIR may be quashed.

The learned counsel for the petitioners has placed reliance upon the judgment of Hon''ble Supreme Court rendered in Paramjeet Batra Vs. State of Uttarakhand and Others, and Binod Kumar Vs. State of Bihar, .

Per contra, learned Public Prosecutor as well as learned counsel for the respondent No. 2 has argued that from bare reading of contents of FIR, prima facie case is made out against the petitioners, therefore, no case for interference is made out and this criminal misc. petition is liable to be dismissed.

Learned counsel for the respondent No. 2 has fairly conceded that the house in dispute is already attached and the SHO, Shivganj has been appointed as Receiver. He has also submitted that the respondent No. 2 has instituted a suit before the District Judge, Sirohi praying for decree of eviction against the petitioners and possession over the said house and the same is pending.

Heard learned counsel for the parties and perused the material placed on record.

From the facts emerged out in the present case, it is clear that the dispute in relation to the house situated in town Shivganj, both the parties are claiming ownership of the said house on the basis of separate Wills executed in favour of the complainant and petitioner No. 2. The civil suit, instituted at the instance of the complainant claiming possession over the house and the eviction of the petitioners, is pending before the competent civil court. The house in question is now under attachment and the S.H.O., Shivganj has been appointed as Receiver. The complainant is at present residing in her in-law''s house whereas the petitioners are residing at Udaipur.

From the above facts, it is clear that the dispute between the parties is predominantly of civil nature whereas both the parties have filed criminal cases against each other claiming ownership of the house though the civil litigation is pending.

The Hon''ble Apex Court in Paramjeet Singh Batra''s case (supra) and Binod Kumar Vs. State of Bihar, has held that the Court must see whether a dispute which is essentially of a civil nature is given a cloak of criminal offence and in such a situation, if a civil remedy is available and is, in fact, adopted as has happened in this case, the High Court should not hesitate to quash criminal proceedings to prevent abuse of process of court.

In the present case also, the respondent No. 2 has already availed civil remedy and the same is pending before the competent civil court. The civil court will take care of the issue that who will be entitled for ownership of the disputed house on the basis of Will executed in favour of them?

In view of above discussion, this criminal misc. petition is allowed. The impugned FIR No. 97/2012 dated 1.6.2012 of Police Station Shivganj, District Sirohi is hereby quashed and set aside. The stay petition also stands disposed of. No order as to cots.