In the High Court of Punjab and Haryana at Chandigarh ...... Criminal Misc. No.M-12000 of 2009 ..... Date of decision:5.5.2009 Mukhtiar Kaur and others .....Petitioners v. State of Punjab .....Respondent .... Present: Mr. G.S. Punia, Advocate for the petitioners. ..... S.S. Saron, J. This petition under Section 482 of the Code of Criminal Procedure (`Cr.P.C.' - for short) has been filed seeking quashing of FIR No.229 dated 23.11.2997 (Annexure-P.1) registered at Police Station Focal Point, Ludhiana for the offences under Sections 447, 506, 148 and 149 Indian Penal Code (`IPC' – for short); the order dated 18.9.2003 (Annnexure-P.2) framing charges and the charge-sheet dated 18.9.2003 (Annexure-P.3); challan (Annexure-P.4) filed under Section 173 Cr.P.C.; the order dated 20.4.2005 (Annexure-P.5) dismissing the application under Section 216 Cr.P.C. and the order dated 3.2.2009 (Annexure-P.6) passed by the learned Additional Sessions Judge, Ludhiana dismissing the revision petition as also for quashing the subsequent proceedings arising there from in the trial Court being an abuse of the process of the Court. The FIR (Annexure-P.1) in the case has been registered on the statement of Harjinder Singh-complainant in respect of the occurrence of 22.11.1997 at 8.30 a.m. It is alleged by the complainant-Harjinder Singh Cr. Misc. No.M-12000/2009 [2] that they were four brothers and one of them Nirankar Singh, who was the eldest died in the year 1986. After his death, Hazura Singh-father of the complainant distributed 18-18 kanals of land to each of the remaining three brothers. The girdawri of the land was also entered in favour of the brothers. Out of the land measuring 18 Kanals given to Kulwant Singh- brother of the complainant-Harjinder Singh comprised in rectangle No.9, Khasra No.15/1 and rectangle No.10, Khasra No.11/2, Hazura Singh-father of the complainant mortgaged the same in favour of one Mukhtiar Kaur wife of Bhag Singh son of Nirmal Singh, resident of Gobindgarh. In 1990, the complainant and his brother got a stay from the Court against their father and also against Bhag Singh, who was general power of attorney of his wife Smt. Mukhtiar Kaur. However, the Revenue Department did not enter the stay order in the revenue records. Thereafter, in 1991 Hazura Singh-father of the complainant sold four Kanals of land out of the above said land in favour of Mukhtiar Kaur wife of Bhag Singh and one Kanal of land in favour of one Darbara Singh son of Ishar Singh whereas Hazura Singh-father of the complainant had lost the girdawri case in the Court. In 1992, after the stay that had been granted in favour of the complainant side had been vacated, they filed an appeal in the Court of Session which was decided in their favour and Bhag Singh and Hazura Singh were restrained from taking possession of the land. Regarding the land in dispute, cases are pending in the Courts between both the parties against each other. Kulwant Singh-brother of the complainant had filed an appeal before the Commissioner, Patiala Division, Patiala against Mukhtiar Kaur wife of Bhag Singh and Darbara Singh son of Ishar Singh assailing the khasra Cr. Misc. No.M-12000/2009 [3] girdawri of 5 Kanals of land sold to them. An order of status quo was granted upto 25.11.1997. For pursuing the case, Kulwant Singh-brother of the complainant had given a general power of attorney dated 8.10.1997 in his (complainant's) favour. In the year 1997, the girdawri of barley crop is entered in favour of Kulwant Singh-brother of the complainant. On 22.11.1997 at 8.30 a.m. Harjinder Singh-complainant and his brother Avtar Singh were sitting in the house that was constructed at the well which is adjacent to the land in dispute. They were getting the well repaired. In the meantime, Bhag Singh, husband of petitioner No.1-Mukhtiar Kaur, Jagdish Singh (petitioner No.2) son of Bhag Singh, Mukhtiar Kaur (petitioner No.1) wife of Bhag Singh, Jagdev Singh (petitioner No.3) son of Gurdit Singh and Devinderpal Singh (petitioner No.4) son of Jagdev Singh residents of Gobindgarh and Darbara Singh son of Ishar Singh, Jagdish Singh alias Bhola son of Darbara Singh, residents of Dhanasu (non-petitioners) and relations of Bhag Singh above mentioned, namely, Mohani and Bagga, who is the son of brother-in-law of Bhag Singh along with 5-6 persons, whose names the complainant did not know but could identify them came on a tractor trolley and a white colour Maruti van to the land in dispute. They were having spades and `lathis' besides in the trolley there were bricks and other material. They threatened both the brothers and said that in case they came in the land they would be killed. They started constructing a room in the land in dispute. The complainant and his brother ran away out of fear from them. The complainant went to consult his brother Kulwant Singh. He was going to give information to the Police when ASI Ramji Dass, In- charge, Police Post Dhandari Kalan along with other Police officials met Cr. Misc. No.M-12000/2009 [4] him at Phase-7 near Water Tank. It was alleged that the above mentioned accused after conniving with each other had taken possession of the disputed land regarding which cases are pending. They had constructed a room and thereby violated the order of the Court. Besides, the complainant and his brother had been giving threats of life. In 1991 also a dispute had arisen at the instance of Bhag Singh etc. regarding this land which was, however, compromised. The Police investigated the case and after investigation filed charge-report (Annexure-P.4) in terms of Section 173 Cr.P.C. under Sections 447, 506, 148 and 149 IPC. The learned Chief Judicial Magistrate, Ludhiana after hearing the State and the petitioners (accused) and considering the matter vide order dated 18.9.2003 (Annexure-P.2) came to the conclusion that the accused appeared to have committed offences punishable under Sections 447, 506, 148 and 149 IPC. Accordingly, charges (Annexure-P.3) were framed against them. Thereafter, the petitioners and Bhag Singh filed revision petition against the order dated 18.9.2003 (Annexure-P.2) before the Sessions Court and the learned Additional Sessions Judge dismissed the same vide order dated 13.5.2004 (Anexure-P.8). Against which Criminal Misc. No.M-42876 of 2004 was filed in this Court, which was dismissed as withdrawn vide order dated 24.9.2004 so as to enable the petitioners to file an application in terms of Section 216 Cr.P.C. seeking alteration or modification of the charges. Accordingly, an application under Section 216 Cr.P.C. for reconsideration of the charges framed against the accused for the offences under Sections 447, 506, 148 and 149 IPC on 18.9.2003 Cr. Misc. No.M-12000/2009 [5] (Annexure-P.3) was filed before the learned trial Court. It was contended by the accused (petitioners) that to sustain the charge of criminal trespass primary condition of possession of land by the complainant is an essential ingredient. The allegations against the accused (petitioners) are that on 22.11.1997 they had trespassed into the land comprised in rectangle No.9, Khasra No.15/1 and rectangle No.10, Khasra No.11/2 which, it had been alleged, was in possession of the complainant. It was contended that the said allegation was false as the complainant in his statement before the Police had stated that his father Hazura Singh had mortgaged about 15 Kanals of land with possession including the aforementioned land in favour of Mukhtiar Kaur (petitioner No.1). Besides, Hazura Singh-father of the complainant had sold four Kanals of land in favour of Mukhtiar Kaur (petitioner No.1) and one Kanal of land in favour of Darbara Singh vide registered sale deeds dated 29.10.1991 which include the land aforementioned and had delivered the possession of the land to Mukhtiar Kaur and Darbara Singh. The mortgage, it was submitted, had been effected vide mortgage deed dated 11.6.1990. The mutation of the two sale deeds in favour of Mukhtiar Kaur and Darbara Singh was also got entered and sanctioned by Hazura Singh-father of the complainant on 17.12.1991. Therefore, according to the accused-petitioners the physical possession of the land in dispute, where the alleged offence is said to have been committed on 22.11.1997, was that of Mukhtiar Kaur (petitioner No.1), Darbara Singh and the complainant was never dispossessed from the said land. Therefore, it was submitted that no offence under Section 447 IPC had been committed by Mukhtiar Kaur, Darbara Singh and their alleged Cr. Misc. No.M-12000/2009 [6] companions. In the circumstances, it was submitted that it stood proved beyond reasonable doubt that no offence under Section 447 IPC had been committed from the allegations as made in the FIR. The documents i.e. the mortgage deed dated 11.6.1990, two sale deeds dated 29.10.1991, mutation No.1404 in favour of Mukhtiar Kaur and mutation No.1402 in favour of Darbara Singh sanctioned on 17.12.1991 on the basis of sale deeds, besides, khasra girdawri duly corrected from 1994, civil Court decree of the learned Civil Judge (Junior Division), Ludhiana dated 16.9.2000 in respect of the land in dispute, two civil cases instituted by Smt. Satwant Kaur widow of Nirankar Singh (the deceased brother of the complainant), Harjinder Singh-complainant and Avtar Singh against their father Hazura Singh, Bhag Singh-accused and Kulwant Singh son of Hazura Singh; besides another civil case instituted by the said plaintiffs against their father Hazura Singh, accused Jagdev Singh, Darbara Singh, Harjinder Kaur, Smt. Mukhtiar Kaur and Kulwant Singh which both suits were dismissed on 4.3.1999 (Annexures-P.12 and P.13), another order of the Civil Court dated 29.7.1992 (Annexure-P.10), which was passed against the complainant and Satwant Kaur as also Avtar Singh, another order dated 14.2.1995 (Annexure-P.11) of the Additional District Judge, Ludhiana granting injunction in favour of the complainant side and other documents were submitted for perusal of the Court. The said documents according to the accused-petitioners clearly show that a false complaint in the form of FIR has been registered against them and no offence under Section 447 IPC had been committed. Accordingly, it was prayed that the order dated 18.9.2003 (Annexure-P.3) framing charges against the accused under the above Cr. Misc. No.M-12000/2009 [7] mentioned offences of the IPC be reviewed and reconsidered. Notice of the application was given to the learned APP for the State who filed reply. It was stated that accused had filed an application at a belated stage to delay the trial and there was no cause of action to file the said application. Besides, no revision petition had been preferred against the charge-sheet (Annexure-P.3) and the application was liable to be dismissed. The learned Additional Chief Judicial Magistrate vide order dated 20.4.2005 (Annexure-P.5) dismissed the application of the accused- petitioners filed under Section 216 Cr.P.C. seeking modification of the charges. It was observed that Hazura Singh had mortgaged his land with Mukhtiar Kaur and Darbara Singh. Besides, he sold the same by registered sale deed dated 29.10.1991. Civil litigation had been pending between the parties although the girdawris were in the names of the accused. However, after going through the order dated 14.2.1995 (Annexure-P.1) passed by the learned Additional District Judge, Ludhiana in appeal filed by Satwant Kaur, Avtar Singh and Harjinder Singh-complainant against Hazura Singh, Bhag Singh and Kulwant Singh, the order of the trial Court dated 29.7.1992 (Annexure-P.10) dismissing the application of Satwant Kaur, Avtar Singh and Harjinder Singh-complainant under Order 39, Rules 1 and 2 CPC was ordered to be modified to the extent that respondents No.1 and 2 therein were restrained from dispossessing the appellants (i.e. the complainant side) from the suit land forcibly and illegally. Therefore, according to the learned Additional Chief Judicial Magistrate, Ludhiana it meant that possession of the complainant-Hazura Singh was accepted by the learned Additional Cr. Misc. No.M-12000/2009 [8] District Judge, Ludhiana and thereafter the said order was not challenged by the accused in any Court. Therefore, it was held that the possession of the land was with the complainant in the year 1995 as held by the Civil Court and the said decision of the Civil Court was binding on the criminal Court. As such, it meant that the complainant was in possession of the land and he was dispossessed by the accused on 22.11.1997. There was, therefore, no question of altering the charges. Accordingly, application under Section 216 Cr.P.C. filed by the accused was held to be not maintainable and was accordingly dismissed. The petitioners aggrieved against the order dated 20.4.2005 (Annexure-P.5) passed by the learned Additional Chief Judicial Magistrate, Ludhiana preferred a revision petition which has been dismissed by the learned Additional Sessions Judge, Ludhiana vide order dated 3.2.2000 (Annexure-P.4). Reliance was placed on the order dated 14.2.1995 (Annexure-P.11) passed by the learned Additional District Judge, Ludhiana in terms of which appeal of the accused was accepted and the order of the trial Court dated 29.7.1992 (Annexure-P.10) dismissing the application under Order 39, Rules 1 and 2 CPC was modified to the extent that respondents No.1 and 2 therein i.e. Hazura Singh and Bhag Singh were restrained from dispossessing the appellants-Satwant Kaur, Avtar Singh and Harjinder Singh (complainant) from the suit land forcibly and illegally. Therefore, the same according to the learned Additional Sessions Judge prima facie established the possession of the complainant party. Aggrieved against the said order the accused-petitioners have preferred the present revision petition. Learned counsel for the petitioners has contended that the Cr. Misc. No.M-12000/2009 [9] learned trial Court noticed the fact of mortgage and possession as per revenue record. However, vide order dated 20.4.2005 (Annexure-P.5) dismissed the application of the petitioners under Section 216 Cr.P.C. only on the ground that in an appeal against the order dated 29.7.1992 (Annexure-P.10) passed on the application under Order 39, Rules 1 and 2 C.P.C., the respondents No.1 and 2 therein, namely, Hazura Singh and Bhag Singh were restrained vide order dated 14.2.1995 (Annexure-P.11) from dispossessing the appellants-Satwant Kaur, Avtar Singh and Harjinder Singh and, therefore, it is submitted that the learned trial Court assumed that the complainant was in possession of the land in dispute when he was dispossessed on 22.11.1997. It is submitted that the learned trial Court failed to notice that the said suit was ultimately dismissed on 4.3.1999 (Annexure-P.12). Copies of the order dated 29.7.1992 (Annexure-P.10) passed on the application under Order 39, Rules 1 and 2 C.P.C.; order dated 14.2.1995 (Annexure-P.11) in appeal and the order dated 4.3.1999 (Annexure-P.12) dismissing the suit are attached. It is submitted that the petitioners filed a revision petition against the order dated 20.4.2005 (Annexure-P.5) passed by the learned trial Court. However, the same has been wrongly dismissed by the learned Additional Sessions Judge vide order dated 3.2.2009 (Annexure-P.6). It is submitted that the learned Additional Sessions Judge also did not take notice of the fact that the suit itself was dismissed vide order dated 4.3.1999 (Annexure-P.12). It is submitted that in the FIR a reference to another Civil Suit No.408 of 30.4.1992 has been made wherein sale deeds dated 19.11.1991 executed by Hazura Singh-father of the complainant were assailed by Satwant Kaur, Cr. Misc. No.M-12000/2009 [10] Avtar Singh and Harjinder Singh. The said suit was also dismissed on 4.3.1999 (Annexure-P.13). It is submitted that khasra girdawri proceedings as mentioned in the FIR have also been decided in favour of Mukhtiar Kaur and Darbara Singh and the Assistant Collector 2nd Grade, Ludhiana vide order dated 1.7.2000 (Annexure-P.14) ordered that Mukhtiar Kaur and Darbara Singh are in possession of the land for the last ten years and ordered the correction of khasra girdawri from Sauni 1994 onwards. Therefore, it is submitted that the ingredients of the offence under Section 447 IPC in the face of the documents referred to above is not made out and the continuation of the proceedings are nothing but are an abuse of the process of the Court. After perusing the record and giving my thoughtful consideration to the matter it may be noticed that the allegations in the FIR are that on 22.11.1997 when the complainant-Harjinder Singh and his brother-Avtar Singh were sitting in the house constructed at the well which is adjacent to the disputed land, Bhag Singh husband of Mukhtiar Kaur (petitioner No.1), Jagdish Singh (petitioner No.2), Jagdev Singh (petitioner No.3), Devinderpal Singh (petitioner No.4), besides, Mukhtiar Kaur (petitioner No.1) along with Davender Singh, Darbara Singh and Jagjit Singh alias Bhola came to the land on a tractor trolley and in a white colour Maruti van. They had spades and `lathis' with them and in the trolley there were bricks and other materials for construction. They threatened Harjinder Singh-complainant and his brother Avtar Singh and they took possession of the land by raising construction. The case of the petitioners is that in fact they are in possession of the land and in support of the same reliance is placed on various documents, a reference to which has been made above. It Cr. Misc. No.M-12000/2009 [11] is submitted that the learned Chief Judicial Magistrate, Ludhiana and the learned Additional Sessions Judge, Ludhiana in their orders dated 26.9.2005 (Annexure-P.5) and 3.2.2009 (Annexure-P.6) have given undue weightage to the order dated 14.2.1995 (Annnexure-P.11) passed by the learned Additional District Judge, Ludhiana. It is submitted that Satwant Kaur widow of Nirankar Singh son of Hazura Singh and Avtar Singh and Harjinder Singh sons of Hazura Singh had filed a suit against Hazura Singh, Bhag Singh (husband of Mukhtiar Kaur, petitioner No.1) and Kulwant Singh son of Hazura Singh. A declaration was sought in the said suit that the plaintiffs Satwant Kaur, Avtar Singh and Harjinder Singh as also Kulwant Singh (defendant No.3) are owners in possession of two Killas and two kanals of land each out of the land as detailed in the head note of the plaint on the basis of family settlement executed by way of an affidavit dated 19.12.1986 by Hazura Singh (defendant No.1) and Bhag Singh (defendant No.2) and for restraining the said defendants from illegally and forcibly dispossessing the plaintiffs from the land. The learned Sub Judge Ist Class vide order dated 29.7.1992 (Annexure-P.10) dismissed the application of the plaintiffs (complainant side) for grant of interim injunction. The plaintiffs (complainant side) preferred an appeal and the learned Additional Sessions Judge, Ludhiana vide order dated 14.2.1995 (Annexure-P.11) modified the order of the trial Court and restrained Hazura Singh and Bhag Singh, respondents No.1 and 2 therein, from dispossessing the appellants Satwant Kaur, Avtar Singh and Harjinder Singh (complainant side) from the suit land forcibly and illegally except by due process of law till the disposal of the suit. The suit of the complainant side i.e. Satwant Cr. Misc. No.M-12000/2009 [12] Kaur, Avtar Singh and Harjinder Singh has been dismissed in default under Order 9 Rule 8 C.P.C. vide order dated 4.3.1999 (Annexure-P.12). It may, however, be noticed that on 22.11.1997 which is the date of occurrence the said order dated 4.3.1999 was not there and the order dated 14.2.1995 (Annexure-P.11) was operative. The other orders dated 4.3.1999 (Annexure-P.13), the order dated 4.2.2000 (Annexure-P.14) passed by the Assistant Collector 2nd Grade correcting the khasra girdawri from Sauni 1994 onwards and the order dated 16.9.2000 (Annexure-P.15) in the suit filed by Mukhtiar Kaur (petitioner No.1) against Hazura Singh, Kulwant Singh, Harjinder Singh, Avtar Singh and Smt. Satwant Kaur for permanent injunction restraining the defendants therein from demolishing the room 10' x 12' or from interfering with the actual, physical, peaceful possession of land measuring 4 Kanals was decreed in her (Mukhtiar Kaur’s) favour on 16.9.2000. However, the said orders also were not on record at the time of framing charges with respect to the date of occurrence i.e. 22.11.1997. The documents i.e. mortgage deed dated 11.6.1990 (Annexure-P.7), the order dated 29.7.1992 (Annexure-P.10) passed by the Sub Judge Ist Class, Ludhiana dismissing the application of the complainant side under Order 39 Rules 1 and 2 C.P.C., the order dated 14.2.1995 (Annexure-P.11) passed by the learned Additional District Judge, Ludhiana modifying the order dated 29.7.1992 of the trial Court dismissing the application under Order 39 Rules 1 and 2 C.P.C. to the extent that respondents No.1 and 2 Hazura Singh and Bhag Singh were restrained from dispossessing the complainant side from the suit land forcibly or illegally except by due process of law till the disposal of the suit and the order dated 4.3.1999 (Annexure-P.12) Cr. Misc. No.M-12000/2009 [13] dismissing the suit and the other documents were not on record. The said documents were not part of the supporting documents filed by the police along with the charge-report (challan) submitted by the police. The same, however, could not be taken into account even on an application filed by the accused along with the documents. In State of Orissa v. Debendra Nath Padhi, (2005) 1 SCC 568, a five Judges Bench of the Supreme Court considered the question as to whether the trial Court can consider any material filed by the accused at the time of framing charge. It was held that at the said stage the trial Court can consider only the material produced by the prosecution and that there was no provision in the Cr.P.C. which grants to the accused any right to file any material and the documents at the said stage of the trial. It was also held that an accused cannot at the stage of framing of charge invoke Section 91 Cr.P.C. to seek production of any document to prove his innocence. Therefore, in any case, the documents referred to by the learned counsel for the petitioners were not liable to be taken into consideration at the time of framing charges and these can only be tendered by accused at the time of their producing defence evidence. In case these are tendered in defence, the learned trial Court needless to say would consider the same in accordance with law after the conclusion of the evidence. The learned Courts below have for the purpose of framing charge considered the facts as they were on 22.11.1997 when the accused are said to have committed the offence under Section 447 IPC and other offences. Prima facie it has been shown that complainant side was in possession of the land on the date of the occurrence on 22.11.1997. On the strength of the same, the charges have been framed. In the circumstances, there is nothing Cr. Misc. No.M-12000/2009 [14] erroneous in the order that has been passed by the learned Courts below in not considering the documents sought to be relied upon by the accused/petitioners. The petitioners would be at liberty to tender the documents in defence and the trial Court would consider the same at the appropriate stage. However, at this stage the said documents cannot be taken into consideration and thereby stall the trial at the intermediary stage. Ordinarily, the criminal proceedings which are instituted against the accused are to be tried and taken to the logical conclusion and this Court would be reluctant to interfere in the same at an interlocutory stage. Therefore, when the charges have been framed and the trial has commenced it would be inappropriate to consider the documents on which reliance is placed by the petitioners and terminate the proceedings even if the documents represent the true nature of the contentions raised by the petitioners. Accordingly, the criminal miscellaneous petition is dismissed. However, nothing stated herein shall be construed as an expression of opinion on the merits of the case and the learned trial Court shall consider the evidence and material as produced before it uninfluenced by any observations made herein or in the impugned orders. May 5, 2009. (S.S. Saron) Judge *hsp*