Tarlochan Singh vs State of Haryana

Harmohinder Kaur Sandhu, J.

Tarlochan Singh has filed this petition invoking the inherent powers of this Court under Section 482 CrPC for quashing first information report No. 257 dated 21.11.88 registered at Police Station, Ambala City and subsequent proceedings arising therefrom including the chargesheet Annexure P/7.

The case against the petitioner was registered on the basis of a written complaint presented at the police station by one J.S. Chaudhary who alleged that he was a resident of Ambala City, but had obtained a commission in 1939 in Royal Indian Navy. After his retirement he joined service of Government of India and retired as Director. Again he obtained a job in merchant navy as Commander and as he mostly remained away, he had executed a general power of attorney in favour of his brotherinlaw Shri Ram Singh who looked after the house. On 2.5.1988 he received a telephonic message that Tarlochan Singh and Maksudan Lal respondents were out to take possession of the house forcibly. On receipt of this information he reached Ambala City on the next day and learnt that two bunch of keys were snatched by Tarlochan Singh from his sister Gurbax Kaur wife of Ram Singh and thereafter he entered the house and replaced his locks. Maksudan Lal and Satpal had also joined Tarlochan Singh in entering the house and removing the locks. One fictitious saledeed too had been executed by practising fraud and thereby the entrance room of the house was blocked.

After investigation a report under Section 173 CrPC was presented in Court against the petitioner and others. Chief Judicial Magistrate, Ambala City after hearing the parties passed a detailed order Annexure P/5 holding that no primafacie case was made out against accused Gurcharan Kaur but Tarlochan Singh and Maksudan Lal were primafacie liable for the commission of offence punishable under Section 448 read with Section 120B I.P.C. Against this order dated 28.3.1989 revision petition was filed by Tarlochan Singh and Maksudan Lal. Another revision petition was also filed by State of Haryana to assail the findings of the trial Court whereby Gurcharan Kaur one of the accused was discharged. The learned Additional Sessions Judge, Ambala dismissed both the revision petitions after modifying the order of the trial Court to the effect that Tarlochan Singh and Maksudan Lal were primafacie liable for an offence under Section 451 read with Section 120B, I.P.C. Copy of this order is Annexure P/6. After the decision of the revision petitions Tarlochan Singh and Maksudan Lal were charged for offences under Sections 451 and 120B, I.P.C. vide order Annexure P/7.

The petitioner now alleged that one Criminal complaint was filed by Ram Singh General Attorney of Jaspal Singh complainant against Jodh Singh his father on 3.5.1988 in which it was alleged that Jodh Singh had taken forcible possession of the house in question, and that complaint was still pending and the complainant nowhere alleged that he had taken possession of the house from Jodh Singh thereafter, so allegations made in the complaint were apparently false. On 9.8.1982 Jaspal Singh had filed a civil suit against him and his father Jodh Singh for permanent injunction restraining them from interfering in his right to construct a wall in order to close doors existing in the wall towards the east of the house in question and he claimed ownership of the house on the basis of a Will executed by his mother in his favour. That Will was disputed by him and by his father and when civil suit regarding the ownership and possession of the house was pending, criminal proceedings amounted to an abuse of the process of the Court. It was further pleaded that in fact Jaspal Singh was in possession as cosharer and he could not claim to be in exclusive possession of the building. The ingredients of the offence of criminal trespass were also not spelled out from the averments made in the first information report.

In the written statement filed by the respondent it was alleged that the criminal litigation pending between the parties was with respect to a charge under Section 451 read with Section 120B, I.P.C., while the civil suit which was filed in the year 1982 pertained to the closure of the doors in between the houses of the complainant and Jodh Singh. The criminal case was independent and distinct from the civil suit. The criminal proceedings were based on possession and the question of title was not relevant. Peaceful possession could not be disturbed without inviting criminal liability. Earlier a suit for permanent injunction was filed by Gurcharan Kaur mother of the petitioner and Maksudan Lal respondent in which temporary injunction was declined vide order Annexure R/3 and thereafter the suit filed by Gurcharan Kaur was dismissed on 3.5.1991. The complainant was in established possession of the house on which forcible entry was made by the petitioner along with respondent No. 2.

A separate reply was also filed by Station House Officer of Police Station, Ambala City, on behalf of respondent No. 1 whereby he denied the averments made in the petition except that Gurcharan Kaur one of the accused was discharged by Chief Judicial Magistrate, Ambala.

I have heard the counsel for the parties and have perused the record.

The learned counsel for the petitioner mainly urged that the complainant claimed himself to be the owner of the house on the basis of a Will alleged to have been executed in his favour by one Laxmi Devi and civil Court was seized of the matter regarding the genuineness of the Will in a suit filed by the complainant in the year 1982. Copy of the plaint in that suit was Annexure P/3. As there was a dispute between the parties regarding the ownership of the house and the matter was pending decision by a Civil Court, the criminal proceedings were launched by the complainant simply to put pressure and were liable to be quashed. It was further urged that a perusal of the first information report will reveal that even ingredients of criminal trespass were not made out. It was nowhere alleged that the petitioner entered the premises with an intent tot commit an offence or to intimidate, insult or annoy any person in possession of the property. The facts of the case constituted a civil wrong and the ingredients of criminal offence were missing.

A perusal of the first information report shows that main contention of the complainant was that he was in possession of the house which was being looked after by his brotherinlaw who was holding a general power of attorney on his behalf. In his absence when his sister had gone to get the house cleaned, two bunches of keys were snatched from her and the petitioner after removing the locks of the complainant put his own locks. So, prima facie it was made out that the complainant was in possession and his locks were removed by implying force and snatching the keys. At the stage of framing charge the trial Magistrate is to consider the materials placed before him by the investigating officer and even a strong suspicion founded upon materials before the Magistrate may lead him to form a presumptive opinion as to the existence of the factual ingredients constituting the offence alleged may justify the framing of charge in respect of commission of that offence. In a case of alleged criminal trespass it is not the function of the criminal Court to decide any question of disputed rights. All that it has to consider is whether the act of the accused amounted to criminal trespass within the meaning of Section 451 I.P.C. It is not the case of the petitioner that his entry into the premises was with intent to assert or exercise a bona fide claim of right. The civil suit filed by Jaspal Singh complainant was for permanent injunction restraining the petitioner and his father from interfering in his right to construct a wall in order to close the doors existing in the wall AB situated towards the east of the house. The question in issue in that case had no direct bearing on the criminal act alleged to have been committed by the petitioner.

So far as the question whether the entry in the house was made by the petitioner with intent to intimidate, insult or annoy any person in possession is concerned, the same is to be determined after evidence is led. Prima facie where a person snatches keys from another and replaces the locks it can be presumed that there was intent to intimidate that is to overawe and to put the other person in fear by show of force. In Matadin Singh Bhairon Singh v. State, AIR 1964 Punjab 145 it was observed :

"There is noting in Section 441 which requires that intimidation, insult or annoyance which is caused to the person in possession of a property as a result of the entry upon that property should be instantaneous and confined only to the moment of entry and not caused subsequent to the entry. All that the section requires is that the accused should make the entry with the intention to insult, intimidate or annoy the person in possession and it is immaterial that the actual intimidation, insult or annoyance is caused not at the time of entry but subsequently. To hold that criminal trespass implies an instantaneous intimidation, insult or annoyance upon the entry into possession of a property, would be going not only against the plain language of the sanction but would also lead to state of lawlessness and high in the activities."

In the instant case from the averments made in the first information report and the statements of the witnesses recorded under Section 161 CrPC both the Courts below found that prima facie case was made out against the petitioner and respondent No. 2. At this stage truthfulness or falsity of the allegations is not to be gone into. That is a matter to be decided by the trial Court after recording and appreciating the evidence. The impugned F.I.R. does not suffer from any infirmity on the ground that ingredients of the offence are not spelled out nor filing of the civil suit copy of plaint of which is Annexure P/3 has any bearing on the question to be determined by the Criminal Court. I, therefore, find no merit in this petition and dismiss the same.