Criminal Misc. No.M.25136 of 2010 1 IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH. Criminal Misc. No.M.25136 of 2010 Decided on 19.12.2011. Priyag Chand ...... Petitioner. Versus Smt. Laxmi Devi and others .. .... Respondents. CORAM:- HON'BLE MR. JUSTICE K.C. PURI Present :- Mr. M.K.Verma, Advocate for the petitioner. K.C.PURI, J. Complainant/petitioner has filed this petition under Section 482 of the Code of Criminal Procedure (in short – Cr.P.C.) for quashing the order dated 26.5.2008 passed by Shri Rajesh Garg, Judicial Magistrate Ist Class, Rewari and also the order dated 16.2.2010 passed in revision preferred by the complainant/petitioner by Shri J.R.Chauhan, learned Additional Sessions Judge, Rewari. 2. Briefly stated the facts of the case are that complainant filed complaint in the Court of Judicial Magistrate Ist Class, Rewari against the respondents and in the aforesaid complaint, the learned Magistrate directed Criminal Misc. No.M.25136 of 2010 2 the Station House Officer, (in short – the SHO) Police Station, Bawal under Section 156(3) of the Cr.P.C. for registration of FIR against the present respondents for having been committed offences under sections 323, 341, 427, 447, 506 and 34 of the Indian Penal Code (in short – the IPC). Since the respondents-accused were influential persons and even political workers, no investigation was carried out either at the spot or from the witnesses by the investigating officer and accordingly the SHO of the concerned police station Bawal submitted cancellation report under Section 169 of Cr.P.C., which was objected by the petitioner. The trial Court, therefore, ordered for summoning of the witnesses and the trial commenced. 3. It is alleged by the complainant that his father and his three brothers owned agricultural land measuring about 145 kanals 8 marlas in village Nagetshbajpur Tehsil Bawal District Rewari. The complainant has peaceful and lawful possession of his share over the land of killa No.9/1 and has constructed three shops over it along with boundary Wall but some part of boundary wall has been demolished by the accused persons No.1 to 31 illegally. Omkar and his sons had filed a suit for permanent injunction claiming that he and his sons had taken the possession of Killa No.9/1 in the joint property and same was dismissed vide judgment and decree dated 5.8.2006. Despite dismissal of the suit, Omkar and Rajender Saini, real brother of the complainant executed sale deed on 13.9.2006 in favour of accused No.1 regarding his self cultivated land as per his share in favour of accused No.1 and handed over the possession of the land as mentioned in the complainant and thereby no dispute was left between the parties as accused No.1 has to take possession of the land of Omkar and Rajender Criminal Misc. No.M.25136 of 2010 3 Saini. However, under the garb of the sale deed executed in favour of accused No.1 by Omkar and his sons and his cousin Lokesh, Munish, Rajesh, Mrs.Santosh and Neelam and Rajender Saini in which the vendors have only sold out their respective shares which was in their possession and not the possession of killa No.9/1 which has been in exclusive possession of the complainant till yet the accused No.1 along with the remaining accused persons on the instigation of accused No.1 to 3 on 14.9.2006 in vehicle No.HR 47A 3394, HR 26AF Centro, HR61-2594 Scorpio and Tractors and about 150 men and 50 women in form of mob came to the agricultural land of the complainant and threatened that he should immediately leave the possession of killa No.9/1 and hand over the same to accused No.1 and all the accused persons were armed with lathis, jallies and iron rods as well as hockey sticks abused and man handled with the complainant and tried to take forcible possession of the land of kila No. 9/1 belonging to the complainant and they threatened the complainant to face the dire consequences and further to eliminate him in the presence of Lal Chand, Jagdish, Udai Singh, Jagga and Sheo Ram, who rescued the complainant from the clutches of the accused. The complainant reported the matter to the police but of no use hence the complaint. 4. The trial Court after recording the evidence of the complaint and after hearing the learned counsel for the petitioner accepted the cancellation report and dismissed the complaint vide order dated 26.5.2008. 5. Feeling dis-satisfied with the aforesaid judgment dated 26.5.2008, the complainant preferred revision before learned Additional Sessions Judge, Rewari, who also dismissed the same vide order dated Criminal Misc. No.M.25136 of 2010 4 16.2.2010. 6. Still feeling dissatisfied with the aforesaid orders dated 26.5.2008 and dated 16.2.2010, the present misc. petition has been preferred. 7. I have heard learned counsel for the petitioner and have gone through the records of the case with their able assistance 8. The learned counsel for the petitioner has submitted that cancellation report was submitted by the police. However, the Court has asked the petitioner to lead evidence. The petitioner was not satisfied with the cancellation report in respect of the FIR No.149 dated 29.10.2006 under sections 323, 341, 427, 447, 506 and 34 of the IPC at Police Station Bawal. The learned Judicial Magistrate Ist Class, called upon the complainant to lead evidence. The petitioner produced seven witnesses in support of his case. The learned Judicial Magistrate Ist Class, should have discussed the evidence of the complainant thoroughly. Learned Additional Sessions Judge, has also dismissed the revision against the said order dated 26.5.2008 passed by the learned Judicial Magistrate Ist Class. Once the evidence has been recorded and as such the learned Judicial Magistrate Ist Class, should have proceeded against the accused and have relied upon authority CREF Finance Ltd. vs. Shree Shanthi Homes Pvt. Ltd & Anr. reported in 2005(3) Civil Court Cases 0542. Learned counsel for the petitioner has also relied upon authority H.S.Bains vs. The State (Union Territory of Chandigarh ) reported in AIR 1980 Supreme Court 1893. I have carefully considered the submissions made by the learned counsel for the petitioner and have gone through the records of the Criminal Misc. No.M.25136 of 2010 5 case. The Hon'ble Apex Court in authority H.S.Bains' case (supra) observed as under :- ''A Magistrate who on receipt of a complaint, orders an investigation under Section 156(3 and receives a police report under Section 173(1), may, thereafter, do one of three things : (1) he may decide that there is no sufficient ground for proceedings further and drop action ; (2) he may take cognizance of the offence under Section 190(1)(b) on the basis of the police report and issue process; this he may do without being bound in any manner by the conclusion arrived at by the police in their report ; (3) he may take cognizance of the offence under Sec. 190(1)(a) on the basis of the original complaint and proceed to examine upon oath the complainant and his witnesses under Section 200. If he adopts the third alternative, he may hold or direct an inquiry under Section 202 if he thinks fit. Thereafter he may dismiss the complaint or issue process as the case may be.” In the present case, the complainant filed complaint under Section 156(3) Cr.P.C. on the basis of which FIR was registered. However, the cancellation report was submitted. The complainant did not agree to the cancellation report and the learned Judicial Magistrate Ist Class, has observed that there is no proof that petitioner is the owner of the property and there was no medical legal report. The petitioner challenged the said order of dismissal of complaint by filing a revision petition. The revisional Criminal Misc. No.M.25136 of 2010 6 Court has also again gone through the records of the case and reached to the conclusion that no case for taking cognizance of the offence is made out. In authority CREF Finance Ltd.'s case (supra), the Hon'ble Apex Court has held that if the complainant is called upon to lead evidence in that case he has taken the cognizance. However, in view of authority H.S.Bains' case (supra) , the learned Judicial Magistrate Ist Class, was not powerless to dismiss the complaint. JMIC found no ground to proceed against the respondents. As many as 30 persons have been arrayed as respondents and there has been not a single injury on the person of the complainant. The petitioner has failed to prove the possession over the land in which the accused are stated to have trespassed. So, in these circumstances, no case is made out for interference by invoking the provisions of Section 482 Cr.P.C., more so, when there is concurrent finding recorded by both the Courts below that petitioner has failed to make out a case for summoning of the respondents as accused. Consequently, the petition stands dismissed. ( K.C.PURI ) JUDGE December 19, 2011 sv Criminal Misc. No.M.25136 of 2010 7