(1) CRI. APPLN. 1022.2010 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPLICATION NO. 1022 OF 2010 1. Subhash Nimba Mali 2. Venubai Nimba Mali 3. Nimba Bhago Mali 4. Sau. Rekhabai Subhash Mali All R/o Lasur, Tq. Chopda Dist. Jalgaon APPLICANTS VERSUS The State of Maharashtra and anr. RESPONDENTS ..... Mr. Girish Rane, Advocate for the Applicants. Mr. B.V. Wagh, A.P.P. for the Respondent-State. Mr. S.P. Shah, Advocate for respondent no.2 ..... CORAM : M.T. JOSHI, J. DATED : 13TH APRIL, 2011 ORAL ORDER:- 1. Heard both sides. The applicants, who are the original accused in the FIR no. 81 of 2009 registered with Chopada Rural Police Station, are praying for quashment of the said FIR. The submissions of both the sides and the material on record show that on the basis of a registered agreement of sale, wherein the recitals regarding the (2) CRI. APPLN. 1022.2010 handing over of the possession of the agricultural property, the present accused are claiming to be in possession of the same. The said agreement of sale is claimed to have been properly executed by the complainant. The complainant, however, defends that merely out of a loan transaction, the agreement of sale came to be executed and the complainant is very well in possession of the agricultural property. 2. The matter was taken to the Sub Divisional Magistrate under section 145 of the Code of Criminal Procedure and ultimately to the Sessions Court in the nature of Criminal Revision Application. The Sessions Court ultimately observed that there was no allegations of likelihood of breach of public peace and without passing any order on merit regarding the actual possession of any of the parties, the Criminal Revision Application was allowed. Thereafter, the accused filed Special Civil Suit no. 68 of 2007 for injunction, claiming therein that Venubai (Accused no.2) is in possession of the suit property. At the exparte, ad-interim stage, learned C.J.S.D. observed that the revenue entries did not support her and (3) CRI. APPLN. 1022.2010 thereafter, when both the sides appeared, with consent of both of them, order of maintaining status quo in respect of agricultural property was passed. 3. In this background, the FIR was filed by the complainant on 26.10.2009 alleging therein that on 19.9.2009, and 20.9.2009, the present applicants/accused had entered the field and plucked the cotton and thus have committed the theft. 4. The learned counsel for the applicants vehemently submitted that the recitals in the agreement itself, order of the Sessions Court in Criminal Revision Application as well as order of the C.J.S.D. directing to maintain status quo, would show that applicant no.2-Venubai is in settled possession of the suit property. Civil proceedings between the parties are pending and in such situation, no ingredients of any of the offence under section 379, 447, 504 r/w. 34 are made out and hence, he prays for quashment of the FIR. 5. On the other hand, learned counsel for respondent no.2-complainant submitted that there is (4) CRI. APPLN. 1022.2010 no finding of fact that the applicant no.2 (Accused no.2) is in possession of the suit property. It was further submitted that the Court has nowhere declared even at the interim stage that the applicant no.2 (Accused no.2) is in possession of the field property. Under the circumstances, according to him, entrance of the applicants in the field, plucking the cotton and taking away the same would amount to theft and criminal trespass. He further relied in R. Kalyani V. Janak C. Mehta and ors. (2009) 1 SCC 516, wherein upon considering the ratio of various authorities regarding the quashment of the FIR, the Apex Court made the following propositions: "15. Propositions of law which emerge from the said decisions are : (1) The High court ordinarily would not exercise its inherent jurisdiction to quash a criminal proceeding and, in particular a first information report unless the allegations contained therein, even if given face value and taken to be correct in their entirety, disclosed no cognizable offence. (2) For the said purpose the Court, save and except in very exceptional circumstances, would not look to any document relied upon by the defence. (3) Such a power should be exercised very sparingly. If the allegations made in the (5) CRI. APPLN. 1022.2010 FIR disclose commission of an offence, the Court shall not go beyond the same and pass an order in favour of the accused to hold absence of any mens rea or actus reus. (4) If the allegation discloses a civil dispute, the same by itself may not be a ground to hold that the criminal proceedings should not be allowed to continue." 6. There is no declaration from any of the competent Court that applicant no.2 i.e. accused no.2 is in possession of the suit property. The dispute as to who is in possession, is still left undecided. In the circumstances, even though, civil dispute between the parties is there, the Criminal proceedings initiated by the present FIR will have to be decided on its own merits by the Criminal Court and, therefore, no case is made out for the quashment of the FIR. 7. The Criminal Application is, therefore, dismissed. Sd/- [M.T. JOSHI, J.] arp