Crl. Misc. No.M-35031 of 2009 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Crl. Misc. No.M-35031 of 2009 Date of Decision: 26.04.2011 Jaspal Singh and another ....Petitioners Versus State of Punjab and another ...Respondents CORAM : Hon'ble Ms. Justice Nirmaljit Kaur Present:- Mr. S.P.S. Sidhu, Advocate for the petitioners. Mr. K.S. Pannu, D.A.G., Punjab for the respondent-State. Mr. Arvind Thakur, Advocate for respondent No.2. ***** 1. Whether Reporters of Local Newspapers may be allowed to see the judgment ? 2. To be referred to the Reporters or not ? 3. Whether the judgment should be reported in the Digest ? ** NIRMALJIT KAUR, J. This is a petition under Section 482 Cr.P.C for quashing of FIR No.112 dated 26.08.2009 under Sections 379, 427 and 506 IPC registered at Police Station Mallanwal, District Ferozepur (Annexure P-1) and all consequential proceedings arising therefrom. FIR, in question, has been registered against the petitioners on the statement of respondent No.2. While praying for quashing of the FIR, learned counsel for the petitioners contended hat no offence was made out from the reading of FIR. The land is a joint khata and the petitioners and respondent are the co-sharers. As such, the offence under Sections 379/427/506 IPC cannot Crl. Misc. No.M-35031 of 2009 2 be made out against the petitioners. Reliance has been placed on the judgments of this Court rendered in the case titled as Swaran Singh vs. Sr. Superintendent of Police, Hoshiarpur reported as 1999(3) R.C.R. (Criminal) 707, as well as, the case titled as Gurmeet Singh v. Rachhpal Singh reported as 2004(2) Crl. C.C. 728. While opposing the petition, learned counsel for respondent No.2 submitted that the charges have already been framed. As such, the petitioner has the remedy to file revision against the order framing charges. It is further submitted that the respondent was in exclusive possession of the property and as such, it cannot be said that no offence of theft is made out. Heard. The allegations in the FIR are as under :- “ On 17.08.2009, when I was in Ludhiana, these accused persons cut five trees from my land and taken away. While they were cutting trees, my elder brother Darshan Singh son of Hakam Singh and Baldev Singh son of Sardara Singh resident of Village Lakha Bhedi saw them and tried to stop by saying that let Sukhdev Singh came from Ludhiana then you should do whatever you want to do but these accused did not stop and cut the trees and taken away which were still lying in the premises of Jaspal Singh. Some unknown persons were along with them. On the same day i.e. 17.08.2009, these accused took illegal possession of 28 marlas which is un partitioned and belongs to our three brothers (Darshan Singh, Jaspal Singh and Sukhdev Singh).” Thus, it is not disputed that petitioner No.1 are three brothers and as per the revenue record, it is a joint land of all the brothers. In fact, it is specifically mentioned in the FIR that there is no partition between the Crl. Misc. No.M-35031 of 2009 3 brother and it is yet to decided as to which portion belongs to which brother. Thus, the dispute in the present case, is squarely covered by the judgment rendered by this Court in the case of Swaran Singh (supra), vide which, it was held that every co-sharer is entitled to interest in every inch of land and in case, the complainant is in exclusive possession of property, it was always open to him to file a suit for injunction and protect his possession but it cannot be said that a criminal offence was made out. Paras 2 and 3 of the said judgment read as under :- “2. Admittedly, the property is joint property. Even according to the petitioner he is co-sharer along with respondents Nos.3 to 6. It cannot be disputed that every co-sharer is entitled to an interest in every inch of the land. Reference may be made to the recent decision of the Supreme Court in Kochkunju Nair v. Koshy Alexander and others, 1999(III) SLT 183 wherein it has been held as follows :- “ That all co-owners have equal rights and coordinate interest in the property though their shares may be either fixed or indeterminate. Every co-owner has a right to enjoyment and possession equal to that of the other co-owner or co-owners. Each co-owner has in theory interest in every infinitesimal portion of the subject-matter and each has the right irrespective of the quality of his interest to be in possession of every part and parcel of the property jointly with others.” 3. Since respondents Nos.3 to 6 are also entitled to the property they have committed no offence of theft and trespass. If the petitioner is in exclusive possession of the property, it is always open to him to file a suit for injunction and protect his possession or he may file a suit for partition of the property. Even if it is assumed that the respondents cut the crop, they have not committed offence of theft.” Similar view was also held in the case of Gurmeet Singh Crl. Misc. No.M-35031 of 2009 4 (supra) while relying on the judgment of Hon'ble the Apex Court rendered in the case titled as Kochkunju Nair v. Koshy Alexander and others reported as 1999(III) SLT 183 as under :- “9. A perusal of Annexure P-6 which is a copy of the Khasra Girdawari for the year 1998 shows “self- cultivation of the co-sharers i.e. Manjit Singh, Jagdish Singh, Bank Kaur, Baljit Kaur and Kuldip Kaur.” Therefore, Bant Kaur, Kuldip Kaur and Baljit Kaur have not been shown in possession of any specific khasra number. When the land is joint then every co- sharer has an inteest in every inch of land as has been laid don by the Full Benchof this Court in Bhartu v. Ram Sarup, 1981 P.L.J. 204 and in Kochkunju Nair v. Koshy Alexander and others, 1999(3) Supreme Court Cases 482 the Apex Court has held as follows :- “ That all co-owners have equal rights and coordinate interest in the property though their shares may be either fixed or indeterminate. Every co-owner has a right to enjoyment and possession equal to that of the other co-owners. Each co-owner has in theory interest in every infinitesimal portion of the subject-matter and each has the right irrespective of the quantity of his interest to be in possession of every part and parcel of the property jointly with others.” 10. Since the petitioners are co-sharer in the property in dispute they have committed no offence of theft and trespass. So to continue with the complaint is an abuse of the process of the Court.” Learned counsel for the respondent has not been able to point out any provision or law, vide which, the powers of the High Court under Section 482 Cr.P.C. can be restrained, once the charges have been framed. In fact, once this Court comes to the conclusion that no offence under Section 482 Cr.P.C is made out even after the contents of the FIR Crl. Misc. No.M-35031 of 2009 5 are accepted to be true, the continuation of the proceedings in pursuance to the said FIR, even though charges have been framed, will only result in the misuse of the process of the Court. In view of the above, the present petition is allowed and FIR No.112 dated 26.08.2009 under Sections 379, 427 and 506 IPC registered at Police Station Mallanwal, District Ferozepur (Annexure P-1) and all consequential proceedings arising therefrom are hereby quashed. (NIRMALJIT KAUR) 26.04.2011 JUDGE gurpreet