CRA Nos.168 & 148-SB of [SECTION]003 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH 1. CRA No.168-SB of [SECTION]003 [ENTITY] & Ors. Appellants Versus [ENTITY] Respondent [SECTION]. CRA No.148-SB of [SECTION]003 [ENTITY] & Anr. Appellants Versus [ENTITY] Respondent Date of Decision:-14.8.[SECTION]013 CORAM: HON'BLE MR.JUSTICE MEHINDER SINGH SULLAR Present:- S/Shri [ENTITY] & [ENTITY], Advocates for the appellants. Mr.[ENTITY], A.A.G. Punjab for the respondent-State assisted by Mr.[ENTITY], Advocate for the complainant. [ENTITY], J. (Oral)
As identical points of law & facts are involved, therefore, I propose to decide criminal appeal No.168-SB of [SECTION]003 (for brevity "the 1st appeal") and criminal appeal No.148-SB of [SECTION]003 (for short "the [SECTION]nd appeal") filed by appellants [ENTITY] & others and [ENTITY] & Anr. respectively, arising out of the same impugned decision of conviction & order of sentence, by virtue of this common judgment, in order to avoid the repetition.
[SECTION]. Tersely, the facts & evidence, unfolded during the course of trial, culminating in the commencement, relevant for deciding the instant criminal appeals and emanating from the record, as claimed by the prosecution, is that complainant [ENTITY] (PW1) (for brevity "the complainant") and PW [ENTITY] (not examined), claiming themselves to be in possession of land in question for the last 40 years, moved a complaint (Ex.PA) to SSP Hoshiarpur against appellants [ENTITY] son of [ENTITY] and others (in short "the appellants"), inter-alia alleging therein that they have constructed a temple of [ENTITY] and made thatched roofs (Chhans) (cattle sheds) for tethering their cattle on the vacant land in dispute. On [SECTION].4.1995 at 7 a.m., the appellants were stated to have put the thatched huts of complainant on fire, cut the trees, demolished the room of temple, insulted, abused them and asked their ladies "[ENTITY]". In the background of these allegations and in the wake of complaint (Ex.PA) of the complainant, a criminal case was registered against the appellants, by way of FIR No.33 dated [SECTION].4.1995 (Ex.PA/[SECTION]), on accusation of having committed the offences punishable u/[SECTION], [SECTION] and [SECTION] [ACT] by the police of Police Station Tanda, District Hoshiapur in the manner depicted here-in-above.
3. After completion of the investigation, the final police report (challan) was submitted by the police against the appellants to face the trial for the indicated offences.
4. Having completed all the codal formalities, the appellants were charge-sheeted for the commission of offences punishable under [SECTION], [SECTION] and [SECTION] [ACT]. As they did not plead guilty and claimed trial, therefore, the case was slated for evidence of the prosecution by the trial Judge.
5. The prosecution, in order to substantiate the charges framed against the appellants, examined complainant [ENTITY] as PW1 and his wife [ENTITY] as PW[SECTION], who have attempted to corroborate the initial version contained in the complaint (Ex.PA). PW3 SI [ENTITY] has stated that on [SECTION].4.1995, on receipt of complaint (Ex.PA), he made his endorsement (Ex.PA/1) and sent the same to the police station for registration of a criminal case, on the basis of which, the formal FIR (Ex.PA/[SECTION]) was recorded by ASI [ENTITY]. He has also testified his entire investigation. However, PW4 [ENTITY], Photographer, has not supported the prosecution case.
6. After the close of the prosecution evidence, the statements of the appellants were recorded. The entire incriminating material/evidence was put to enable them to explain any circumstance appearing against them therein, as contemplated under [SECTION] [ACT]. However, appellant [ENTITY] has denied the prosecution evidence in its entirety and pleaded false implication in the following manner:-
"I am innocent. Earlier to me, my father was Sarpanch of the village and the complainant party is neither owner nor in possession of the property as alleged. No mandir or any part thereof was constructed in the land in dispute which belongs to the gram panchayat and the complainant wanted to take forcible possession of the same for which proceedings before DDPO and that of Director, Panchayat was initiated and the complainant party failed there to establish their possession. Complainant failed in the civil Courts also. Even the report of local commissioner qua this land has also proved that they were never in possession of the said land nor any occurrence had taken place.
I, being Sarpanch of the village, panchayat has given me the authority to contest the cases and for this reason I have been falsely implicated. [ENTITY], [ENTITY] are members panchayat while the wife of [ENTITY] is also member panchayat. [ENTITY], [ENTITY] and [ENTITY] are also falsely implicated on the suspicion of helping panchayat against the complainant."
7. The same line of defence was adopted by other appellants. They, in order to prove the line of defence, have tendered copy of application for compromise (Ex.DA), compromise deeds (Ex.DB & Ex.DC), certified copies of orders (Ex.DD & Ex.DE), certified copy of statement of complainant (Ex.DF) and copies of compromise (mark-X & mark-Y) in defence evidence. This is the entire evidence brought on record by the parties.
8. Taking into consideration the entire evidence on record, the appellants were convicted and sentenced to undergo rigorous imprisonment (for brevity "RI") for a period of two years, to pay a fine of ` 1000/- each, or in default thereof to further undergo RI for a period of one month each for the commission of an offence punishable u/[SECTION] [ACT]. They were also sentenced to undergo RI for a period of one year each u/[SECTION] [ACT] and to undergo RI for a period of three months each u/[SECTION] [ACT], by means of impugned judgment of conviction and order of sentence dated 3.1.[SECTION]003 by the trial Judge.
9. Aggrieved thereby, appellants [ENTITY] and others have preferred the 1st appeal, whereas appellants [ENTITY] & Anr. have directed the [SECTION]nd appeal. That is how I am seized of the matter.
10. At the very outset, the petition, bearing CRM No.1[SECTION]49 of [SECTION]006 filed by the appellants for additional evidence u/[SECTION] read with [SECTION] [ACT] in 1st appeal was accepted by a Coordinate Bench of this Court ([ENTITY], J.), vide order dated 14.1[SECTION].[SECTION]006 and they were permitted to place on record copy of judgment rendered by a Division Bench of this Court in CWP No.1[SECTION]3[SECTION]0 of [SECTION]001 (Annexure A1) and order dated 13.4.[SECTION]006 (Annexure A[SECTION]) passed by Hon'ble Supreme Court in SLP No.6148 of [SECTION]006.
11. Having heard the learned counsel for the parties, having gone through the evidence on record with their valuable help and after bestowal of thoughts over the entire matter, to my mind, the instant appeals deserve to be accepted in this context.
1[SECTION]. What cannot possibly be disputed here is that the Gram Panchayat was the owner of land in dispute. Appellant [ENTITY] was its Sarpanch, whereas appellants [ENTITY], [ENTITY] and wife of appellant [ENTITY] were its Members. Appellant [ENTITY] is the son of appellant [ENTITY]. Appellant [ENTITY] and his father appellant [ENTITY] were the supporters and interested in the welfare of the people of the village. They were charge sheeted and convicted for committing criminal trespass, damaging the room of temple, putting the thatched huts of complainant on fire and for mischief by cutting the trees standing on the property in question. [SECTION] [ACT] (criminal trespass) postulates that whoever enters into or upon property in the possession of another with intent to commit an offence or to intimidate, insult or annoy any person in possession of such property.
13. A conjoint and meaningful reading of [SECTION], [SECTION] and [SECTION] [ACT] would reveal that in order to attract these penal provisions, it was the mandatory duty of the prosecution to prove by producing cogent evidence that in fact, the complainant (PW1) was in actual possession of the disputed property at the time of occurrence or that he had constructed the temple and thatched huts (cattle sheds), which were stated to have been put on fire and damaged by the appellants.
14. Above being the legal position and evidence on record, perhaps, now the core question that invites the immediate attention of this Court is, as to whether the complainant was in actual possession of the property in dispute at the relevant time or not ?
15. Having regard to the rival contentions of learned counsel for the parties, to me, the answer must obviously be in the negative as the prosecution has miserably failed in this relevant connection.
16. As is evident from the record that appellant [ENTITY] was the Sarpanch of Gram Panchayat, whereas appellants [ENTITY], [ENTITY] and wife of appellant [ENTITY] were its Members. Appellant [ENTITY] is the son of appellant [ENTITY]. Appellant [ENTITY] and his father appellant [ENTITY] were the supporters and interested in the common welfare of the inhabitants of the village. It is not a matter of dispute that the Gram Panchayat was the owner of the disputed property. The prosecution, in order to prove the possession of complainant [ENTITY], examined him as PW1, who has orally stated that he is in possession of the land in question for the last 40 years and there is a temple of [ENTITY] in it. He had installed the cattle sheds in the vacant land near the temple. The evidence of his wife [ENTITY] (PW[SECTION]) is also to that effect.
17. To my mind, no implicit reliance can be placed on their (PW1 & PW[SECTION]) solitary statements and interested evidence in this respect. Neither any document of ownership nor any cogent evidence as to how, when, in what manner and in what capacity, the complainant came in possession of the property in dispute. In cross-examination, he has categorically deposed that he was not in possession of any document showing his ownership and possession over it. He has vaguely claimed that he was in its possession. He has also admitted that he had filed a civil suit for permanent injunction against the gram panchayat through its Sarpanch with regard to the disputed property. The suit was withdrawn by him on 31.10.1997. He has also admitted that the Gram Panchayat had filed the petition under the [ACT] (hereinafter to be referred as "the Act") against them, pertaining to the property in question before the DDPO prior to the filing of his suit. The DDPO decided the matter in favour of the Gram Panchayat. The appeal filed by him was also dismissed by the Commissioner.
18. Likewise, the perusal of the order dated 7.[SECTION].1998 would reveal that the injunction application under [SECTION] & [SECTION] read with [SECTION] [ACT] filed by the complainant in his civil suit was dismissed as well, by virtue of order dated 7.[SECTION].1998 (Ex.DD) by the Addl. Civil Judge (Senior Division). Consequently, having remained unsuccessful to obtain the stay, he made a statement (Ex.DF) and his suit was dismissed as withdrawn, by means of order dated 31.10.1998 (Ex.DE) by the civil Court.
19. Not only that, dissatisfied with the orders of Collector and Commissioner, the complainant filed CWP No.1[SECTION]3[SECTION]0 of [SECTION]001, which came to be decided by a Division Bench of this Court, through the medium of order dated 18.11.[SECTION]005 (Annexure A1), wherein it was held that the land in dispute is under the control and in the ownership of Gram Panchayat. The plea of complainant that he was in possession of the property in question prior to January [SECTION]6, 1950 was negated. It was further ruled as under:-
"It is strange that such kind of frivolous allegations are leveled without any description of the persons, who had allegedly committed such act. Hopeless effort has been made in this regard, which is evident from the initiation of the criminal proceedings. It is evident from the order passed by the Court on July 16,1996, after the due demarcation had been carried out through the Local Commissioner, vide which a categoric finding was returned in favour of the gram panchayat. It is unfortunate that in the name of the religion, the illegal acts are committed by way of raising constructions on the areas which belong to the Public authorities and are meant for the usage and enjoyment of the Public at large."
[SECTION]0. Still, the complainant did not feel satisfied and preferred Special Leave to Appeal (Civil) No.6148 of [SECTION]006, which was dismissed as well by the Hon'ble Apex Court, by way of order dated 13.4.[SECTION]006 (Annexure A[SECTION]). Meaning thereby, it stands proved on record that the Gram Panchayat was the owner and in actual control over the property in litigation at the relevant time. An attempt was made by the complainant party to encroach upon its land. The prosecution has miserably failed on record to establish that the complainant was in actual physical possession of the disputed property or had constructed the room of temple and set up the thatched huts (cattle sheds), which were set on fire and destroyed by the appellants. In that eventuality, the committing of house trespass and subsequent pointed offences by them did not arise at all under the present set of circumstances.
[SECTION]1. [ENTITY], there is yet another aspect of the matter, which can be viewed entirely from a different angle. As indicated earlier, the rights of ownership and possession between the complainant on one side and the Gram Panchayat on the other side have already been decided by the civil Court and by the competent authorities under the Act. If the epitome of the evidence brought on record as described here-in-above is put together, then, I cannot help observing that the dispute is purely of civil nature. Having remained unsuccessful to establish his possession, the complainant has lodged the false criminal case against the appellants in order to wreak vengeance. It is now well settled principle of law that the matter, which essentially involved the dispute of civil nature cannot legally be allowed to become subject matter of criminal proceedings, otherwise, there will be no end of unwarranted litigation and it will inculcate and perpetuate injustice to the appellants in this relevant direction. The complainant cannot possibly be permitted to execute a non-existent civil Court decree by putting pressure of criminal proceedings on them (appellants). This matter is no more res-integra.
[SECTION][SECTION]. An identical question came to be decided in case Indian Oil Corporation v. NEPC India Ltd. & Others ([SECTION]006)6 SCC 736 and Hon'ble Supreme Court cautioned about a growing tendency of the people to convert purely civil disputes into criminal cases and noticed the prevalent impression that since the civil law remedies are time consuming and do not adequately protect the interests of the parties, so, the people have started to settle civil disputes and claims, which do not involve any criminal offence, by applying the pressure through criminal prosecution. It was observed that "such effort should be deprecated and discouraged. The same view was taken by the Hon'ble Apex Court in case Inder Mohan Goswami & Another v. State of Uttaranchal & Others [SECTION]008(1) SCC(Crl.) [SECTION]59 wherein it was observed that the veracity of the facts alleged by the complainant can only be ascertained on the basis of evidence and documents by a civil court of competent jurisdiction and if the dispute in question is purely of a civil nature, in that eventuality, the initiation of criminal proceedings by the complainant against the accused is clearly an abuse of process of the Court.
[SECTION]3. Not only that, the same very view was again reiterated by the Hon'ble Supreme Court in case Joseph Salvaraja v. State of Gujarat and others ([SECTION]011) 3 SCC(Crl.) [SECTION]3, in which, it was ruled as under:-
"In our opinion, the matter appears to be purely civil in nature. There appears to be no cheating or a dishonest inducement for the delivery of property or breach of trust by the appellant. The present FIR is an abuse of process of law. The purely civil dispute, is sought to be given a colour of a criminal offence to wreak vengeance against the appellant. It does not meet the strict standard of proof required to sustain a criminal accusation. In such type of cases, it is necessary to draw a distinction between civil wrong and criminal wrong as has been succinctly held by this Court in Devendra v. State of U.P., ([SECTION]009) 7 SCC 495, in which, it was held (para [SECTION]7) that a distinction must be made between a civil wrong and a criminal wrong. When dispute between the parties constitute only a civil wrong and not a criminal wrong, the courts would not permit a person to be harassed although no case for taking cognizance of the offence has been made out."
[SECTION]4. Therefore, if the indicated facts, absence of possession of complainant over the property in dispute, contradictory, insufficiency of prosecution evidence, purely civil nature of dispute and totality of the facts & circumstances emerging from the evidence on record, as discussed here-in-above are put together, then, to me, the conclusion is inescapable and irresistible that the evidence brought on record by the prosecution falls short as is required to prove the pointed criminal charges, which entails the benefit of doubt and acquittal of the appellants. The prosecution has miserably failed to bring home guilt to them and trial Judge has committed a legal mistake to convict them pertaining to civil disputes. Thus, the ratio of law laid down in the aforesaid judgments "mutatis mutandis" is applicable to the facts of this case and is the complete answer to the problem in hand.
[SECTION]5. No other legal point, worth consideration, has either been urged or pressed by the counsel for the parties.
[SECTION]6. In the light of aforesaid reasons, the instant appeals are accepted. Consequently, the impugned judgment of conviction & order of sentence of trial Court are hereby set aside. Having extended the benefit of doubt, the appellants are acquitted of the charges framed against them.
[SECTION]7. Needless to mention that nothing observed here-in-above would reflect on merits, in any manner, on any civil/proceedings relating to question of title of land in dispute between the parties as the same has been so recorded only for the limited purpose of deciding the present appeals.
([ENTITY]) Judge 14.8.[SECTION]013 AS Whether to be referred to reporter? Yes/No