IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH Date of Decision: April 28, 2010 1. Criminal Miscellaneous No. M-24100 of 2009 Mukhtiar Singh .....PETITIONER(S) VERSUS State of Punjab & Another .....RESPONDENT(S) . . . 2. Criminal Miscellaneous No. M-24618 of 2009 Surjit Singh & Others .....PETITIONER(S) VERSUS State of Punjab & Another .....RESPONDENT(S) . . . CORAM: HON'BLE MR. JUSTICE AJAI LAMBA PRESENT: - Mr. A.S. Kalra, Advocate, for the petitioners. Mr. Manoj Bajaj, Additional Advocate General, Punjab, for respondent No.1. Mr. Deepak Bhardwaj, Advocate, for respondent No.2. . . . Crl. Misc. No. M-24100 of 2009 [2] AJAI LAMBA, J (Oral) This shall dispose of two petitions viz. Criminal Miscellaneous No.M-24100 of 2009 titled `Mukhtiar Singh vs. State of Punjab & Another’ and Criminal Miscellaneous No.M-24618 of 2009 titled `Surjit Singh & Others vs. State of Punjab & Another’. Both the petitions have been filed under Section 482 Cr.P.C. for quashing FIR No.136 dated 5.7.2009 (Annexure P-5) under Sections 427, 447, 506, 148, 149 IPC registered with Police Station, Shahkot, District Jalandhar. For reference to record, Criminal Miscellaneous No.M-24100 of 2009 titled `Mukhtiar Singh vs. State of Punjab & Another’ is being taken up. Learned counsel for the petitioner contends that in the context of commission of offence under Sections 427 and 447 IPC, it was incumbent on the authorities to have prima facie considered possession over the land. Right from 1992, petitioner Mukhtiar Singh has been in possession of the land and therefore, the offence in July 2009 could not have been committed. Legal possession of the petitioner continues even till date. In this regard, learned counsel has referred to the documents annexed with the Crl. Misc. No. M-24100 of 2009 [3] petition. Learned counsel for the respondent- State assisted by learned counsel for the complainant has not been able to deny the veracity of the documents placed on record by the petitioner. All that has been stated is that there is an allegation in the FIR that on 17.6.2009, Parveen Kumar (Patwari) and Gurcharan Singh (Kanungo) had demarcated the land. The complainant was preparing the land to sow crop. On 2.7.2009, the complainant came to know that accomplices of the petitioner namely Surjit Singh and others, are taking possession of the land by way of ploughing it. The pillars installed by the officials of the revenue department for demarcation of land were removed. I have considered the rival contentions of learned counsel for the parties. On a specific query of the Court, learned counsel for respondent No.2-complainant or learned counsel for respondent No.1-State have not been able to show any document that would establish, even prima facie, possession of the complainant over the land in July 2009. Annexure P-1 is an agreement to sell executed on 16.8.2001 between Kuldip Singh (respondent No.2-complainant) and Mukhtiar Singh Crl. Misc. No. M-24100 of 2009 [4] (petitioner). It has been recited that Rs.80,000/- had already been given by the petitioner to the complainant side. It specifically narrates, “possession has been already delivered to second party” (i.e. petitioner Mukhtiar Singh). Annexure P-2 is civil suit filed by Kuldip Singh on 11.4.2005 in which prayer is for getting possession of the land that is subject matter of this petition, from petitioner Mukhtiar Singh. Possession of the petitioner has specifically been admitted by the complainant in the civil suit. Annexure P-7 is the civil suit instituted by petitioner Mukhtiar Singh on 6.11.2007 against Kuldip Singh (respondent No.2) with a prayer of specific performance of agreement to sell dated 16.8.2001 to which reference has already been made hereinabove and which has been placed on record as Annexure P-1. The suit is still pending adjudication. Annexure P-9 is a civil suit filed by petitioner Mukhtiar Singh against Kuldip Singh on 23.7.2009 in which the petitioner claims a decree of permanent injunction restraining defendant, Kuldip Singh from interfering in the peaceful and lawful possession of the petitioner Crl. Misc. No. M-24100 of 2009 [5] over the land that is at issue in FIR case. Annexure P-10 is an order passed in civil suit, Annexure P-9, to which reference has already been made hereinabove. The Court, vide Order dated 17.6.2009 directed defendant, Kuldip Singh, to maintain status-quo regarding possession over the suit property. Annexure P-11 is order dated 24.4.2003 passed in civil suit instituted on 22.3.2002 by Kuldip Singh against Mukhtiar Singh and others. The order has been passed on an application filed under Order 39 Rules 1 & 2 CPC. The following is the finding recorded by the Court:- “6. It is not disputed that applicant executed an agreement to sell in favour of the respondent and agreed to sell the suit land. That agreement to sell is of dated 16.8.2001. The copy of which is on the file, wherein it is specifically mentioned that possession of the land has been delivered to the respondent. The applicant admitted the execution of the agreement, wherein it is mentioned that possession is delivered to the respondent. The applicant cannot go beyond the contents made by him in agreement to sell. Therefore, it is proved that possession of the suit land has been delivered to the respondent. As the applicant is not in possession of the suit land, therefore, he is not entitled for the relief of injunction. A prima facie case is made out in favour of the respondent. Balance of convenience is also lies in favour of the respondent and respondent will suffer an irreparable loss, in case the injunction is granted in favour of the applicant. 7. In view of the above discussion, application moved by the applicant under order 39 Rule 1 and 2 CPC for restraining the defendants from interfering in his possession as fully detailed in the head note of the plaint stands dismissed.” Perusal of the above extracted Crl. Misc. No. M-24100 of 2009 [6] portion shows that application filed by Kuldip Singh (complainant) has been dismissed. Prima facie, it has been held that Mukhtiar Singh (petitioner) is in possession of the land. Finding has been recorded in view of the recital in agreement to sell dated 16.8.2001 (Annexure P-1). Annexure P-12 is the order passed in the same suit in which application under Order 39 Rules 1 & 2 CPC (Annexure P-11) has been dismissed. Annexure P-12 shows that case was called several times, however, none appeared on behalf of the plaintiff i.e. Kuldip Singh (complainant). Considering the totality of facts and circumstances of the case, as noticed above, it transpires that respondent No.2-complainant admits execution of agreement to sell in which there is specific recital to the effect that Mukhtiar Singh has been put in possession of the land. In the matters in which there is assertion on behalf of Kuldip Singh that he is in possession of the land, the Civil Court has recorded a finding otherwise indicating the possession of Mukhtiar Singh over the suit land. The petitioner has already filed a suit for specific performance of agreement to sell, Crl. Misc. No. M-24100 of 2009 [7] Annexure P-1. Considering the facts and circumstances of the case, it becomes abundantly clear that the petitioner was in possession of the land. In such circumstances, the allegations made in the FIR cannot be held to be based on facts. It seems that recourse to criminal law has been taken only so as to settle a civil dispute. Undoubtedly, there is a dispute between the complainant and the petitioner. While the complainant claims that he has complied with the conditions laid down in the agreement to sell (Annexure P-1) and Mukhtiar Singh has not paid the remaining sale consideration, the petitioner has filed a suit for specific performance of the agreement to sell. Be that as it may, the commission of offence as alleged in the FIR is not made out. The agreement to sell and suit filed by the respondent-complainant, admits possession of petitioner Mukhtiar Singh. The Civil Court has adjudicated and has observed that Mukhtiar Singh is in possession. It therefore becomes evident that petitioner has been in possession of the land. In such circumstances, the offence as alleged in the FIR, could not have been committed by the petitioner. Continuance of proceedings in Crl. Misc. No. M-24100 of 2009 [8] such circumstances, would be abuse of process of the Court and abuse of process of law. The FIR is based on the premise that the complainant has been in possession of land which fact is disproved from the document executed by the complainant and the Civil Court order. In such circumstances, the proceedings will cause harassment of the petitioner which shall cause substantial injustice. In view of the above, both the petitions are allowed. FIR No.136 dated 5.7.2009 under Sections 427, 447, 506, 148, 149 IPC registered with Police Station, Shahkot, District Jalandhar alongwith consequent proceedings is quashed. It is however made clear that what has been considered in this order shall not affect the civil rights of the complainant in relation to the title of the property to assert his right under the agreement to sell or in any other agreement that might have been executed between the parties. (AJAI LAMBA) April 28, 2010 JUDGE avin 1. To be referred to the Reporters or not? 2. Whether the judgment should be reported in the Digest?