Vishnu Kumar vs State and Others

Sandeep Mehta, J.—The instant miscellaneous petition has been filed by the petitioner complainant against the order dated 14.7.2009 passed by the learned Addl. Sessions Judge, Didwana in revision whereby the Revisional Court has quashed the order dated 16.1.2008 passed by the learned Judicial Magistrate, Ist Class, Didwana taking cognizance and summoning respondents No. 3 and 4 for the offences under Sections 147, 448, 427 read with Section 34 I.P.C. Succinctly stated the facts of the case are that the petitioner filed a complaint in the Court of Judicial Magistrate, Didwana alleging that the respondents herein and the petitioner are relatives having a common ancestor named Shri Kistoor Chand. It was alleged that an ancestral house of both the parties was located at Barla Bazar in Chhoti Khatu. It was further alleged that a document was executed between the parties in Samvat 2002 in relation to the partition of the property between the two relatives. The complainant stated that when he and his brother had gone out of town in relation to some business dealings, the eleven accused persons named in the complaint broke into his house and forcibly entered into the same in order to cause damage to the complainant. A new wall was constructed on the portion of the ancestral house belonging to the complainant. The complainant has alleged that a part of the complainant''s land was encroached upon by the accused and owing to this action of the accused the complainant had to open a new way for accessing his house. The said complaint was sent to the police for investigation u/s. 156(3) Cr.P.C. thereupon F.I.R. No. 43/2007 was registered at P.S. Khunkhuna for the offences under Sections 143, 448 and 427 I.P.C. The police during the course of investigation collected evidence to the effect that a dispute arose between the parties in June, 2006 and a C.L.G. Meeting was convened for resolution of the dispute. With the mediation of C.L.G. Members a compromise was arrived at and wall was erected between the two parties with the consent of the parties. The police has given a final report with the finding that as a matter of fact the wall had already been raised in June 2006 and no new construction had been raised subsequently thereto as alleged by the complainant in his F.I.R. Upon the F.R. being filed in the Court on 26.5.2007 and the complainant filed a protest petition and ultimately on 5.6.2007, the statements of the complainant and his witnesses were recorded u/s 200/202 Cr.P.C. and thereafter the learned Magistrate by his order dated 16.1.2008 proceeded to summon only three accused persons named in the F.I.R. viz. Mangilal, Kamalkishore and Bhanwarlal for the aforesaid offences. The other accused persons who were also alleged to have forcibly entered into the complainant''s house were however not proceeded against. The respondents challenged the order passed by the learned Magistrate by filing a revision and the Revisional Court considering the findings given by the police in its F.R. quashed the order dated 16.1.2008 taking cognizance holding that the property was a joint property and the wall which was erected between the respective shares of the two families was raised with the consent of the complainant about a year prior to filing of the F.I.R. Now the aforesaid order of the Revisional Court has been assailed by the complainant in the instant criminal miscellaneous petition.

Heard learned counsel for the petitioner, the learned Public Prosecutor and the learned counsel for the respondent.

The contention of the learned counsel for the petitioner is that the evidence which has been given by the complainant clearly shows that the accused persons encroached upon the petitioner''s share of the property, and therefore, the learned Magistrate rightly took cognizance and summoned the respondents No. 3 and 4 for the offences under Sections 448 and 427 read with Section 34 I.P.C. Learned counsel thus submits that the Revisional Court has committed grave error in interfering with the well reasoned order issuing process passed by the learned Magistrate.

Per contra learned counsel for the respondent submits that the learned Revisional Court placing reliance on the findings given by the I.O. formed an opinion that the case of the complainant that the accused persons erected the wall in between the two properties by encroaching on the complainant''s land is patently false. Learned counsel submits that the complainant has not given any measurement of his share of the partitioned portion of the property in his complaint or the evidence given before the trial court. He further submits that no date of occurrence has been mentioned by the complainant in his report, and therefore, the Revisional Court exercised its jurisdiction for valid reasons in quashing the order issuing process.

Considered the arguments advanced at the bar. Perused the orders impugned and the record. From a perusal of the record, it is apparent that the complainant has given no evidence whatsoever for the purpose of showing that the wall which was erected by the accused was encroaching upon the complainant''s share in the property. No measurements of the property have been mentioned by the complainant in the complaint or his statement recorded u/s 161 and 200 Cr.P.C. No documentary evidence has been filed on record for showing that what was the measurement and extent of the complainant''s share in the property.

In view of the aforesaid facts, it was rightly concluded by the Revisional Court that the accused did not trespass on to the complainant''s land by erecting a wall. That apart the complainant''s case that the accused made encroachment prior to 2-3 months prior to filing of the complaint has been found to be false. The wall which was erected was found to have been erected in June, 2006 in pursuance to the earlier dispute which was resolved by intervention of the C.L.G. Therefore, this Court is of the opinion that the Revisional Court has committed no error in quashing the order issuing process against the accused. The order issuing process was not based on any valid or admissible evidence and was rightly set aside in the revision. The miscellaneous petition being bereft of any force is rejected. The record be sent back.