IN THE HIGH COURT OF JUDICATURE OF ANDHRAPRADESH AT HYDERABAD HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL PETITION No.6005 of 2009 DATE:03.03.2011 Between: Kotturu Pentaiah and another …… Petitioners And Vuthari Kanthaiah and another …..Respondents HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL PETITION No.6005 of 2009 ORDER : The petitioners 1 and 2/A-1 and A-2 are accused of offence punishable under Sections 420, 447 I.P.C in C.C. No.452 of 2008 on the file of Judicial Magistrate of the First Class, Armoor, Nizamabad District. A-1 is father of A-2. It is alleged that the 1st respondent/defacto-complainant is pattedar of S.No.713/1 of Nandipet village and that A-1 constructed a shop room/mulgi by encroaching the 1st respondent’s land and also Government land in S.No.686/2 and that by doing so A-1 had blocked way to the remaining land belonging to the 1st respondent. It is further alleged that A-1 executed a gift deed in respect of that mulgi in favour of his son A-2 and registered the same on 13.02.2004. 2) As can be seen from the statement of Panchayat Secretary given to the investigating officer under Section 161(3) Cr.P.C, A-1 made attempts to obtain door number for his mulgi by making an application, and the Panchayat Secretary rejected the said application on the ground that the mulgi was constructed without prior permission of the Gram Panchayat and other reasons, and subsequently when the Panchayat Secretary went on leave for 15 days and when the Junior Assistant was kept in-charge of the post of Panchayat Secretary, A-1 made another application and obtained door number for the mulgi, and after return from leave the Panchayat Secretary came to know about the same and gave notice to A-1 as to why door number should not be cancelled, and thereafter the Panchayat Secretary cancelled door number for the mulgi. 3) Further, the Mandal Revenue Officer, Nandipet Mandal gave statement to the investigating officer under Section 161(3) Cr.P.C to the effect that when the 1st respondent alleged construction of mulgi by A-1 by encroaching his land and Government land, he (M.R.O) directed Administrative Officer for getting the land surveyed and that after survey, the Administrative Officer gave report to the affect that A-1 constructed mulgi by encroaching part of S.No.713/1 belonging to the 1st respondent and part of S.No.686/2 belonging to the Government and that thereafter the Mandal Revenue Officer gave notices in Form Nos.7 and 6 for removal of the encroachments. After investigation, the police filed charge sheet against A-1 and A-2 for the above offences before the Magistrate. 4) It is contended by the petitioners’ counsel that this Court in W.P.No.15570 of 2008, dated 19.06.2009 observed that the 1st respondent is a chronic litigant and subjected several individuals to unnecessary litigation and that the 1st respondent sold three bits of land facing road without leaving access to his remaining land and having done so, he is subjecting the 3rd respondent therein (A-1 herein) to unnecessary litigation. The said observations made by this Court in writ petition on the basis of affidavits, is not inconsistent with the survey said to have been made by the Mandal Revenue Officer in which it was found that the A-1 encroached not only land in S.No.713/1 but also Government land in S.No.686/2 of Nandipet village. 5) It is contended by the petitioners’ counsel that it is a matter for civil litigation between the parties and that it cannot be subject matter of a criminal case before the Magistrate. Placing reliance on Pepsi Foods Limited V. Special Judicial Magistrate[1] and Hiralal V. State of U.P[2], it is contended by the petitioners’ counsel that dispute between the parties is essentially one which is of civil nature and that therefore no case is made out for registration of the case against the accused and that the criminal proceedings in this case are liable to be quashed. As the matter now stands, there are factual allegations to the affect that there is trespass into the land belonging to the 1st respondent in S.No.713/1 made by A-1 in constructing the mulgi apart from trespassing into the Government land in S.No.686/2. Simply because this Court stayed eviction proceedings under the Land Encroachment Act in an interim order in a writ petition, it cannot be a ground for totally quashing criminal proceedings relating to the criminal trespass said to have been committed by A-1 in the land of the 1st respondent also. Even though this Court in W.P.No.15570 of 2008 observed that the 1st respondent is a chronic litigant, this Court is of the opinion that even litigants will have proprietary rights as well as personal rights and such rights of a person whether a litigant or a non-litigant are not suspended simply because that person is a chronic litigant. In the case on hand, it may be seen that A-1’s conduct is always not fair in the sense that even though the Panchayat Secretary rejected his application for assigning door number to the mulgi constructed in the alleged encroached land, A-1 again made another application when the Panchayat Secretary went on leave and when Junior Assistant was kept in-charge of the Panchayat Secretary post. Immediately after obtaining door number, he executed a gift deed for the mulgi constructed in the encroached land in favour of his son A-2. All these facts which were made in quick succession show lack of bonafides on the part of A-1 in this case. Even though there is civil remedy for the 1st respondent, he cannot be prevented from initiating criminal proceedings in case the cause of action attracts offences under the Indian Penal Code. This is not a case which is purely of civil nature. According to the 1st respondent, there is not only criminal trespass into part of his land, but also obstruction of his way to the remaining land. A-2 is continuing the said criminal trespass after gift of the mulgi in his favour. Therefore, I do not find any valid or legal reasons to quash the proceedings in the criminal case. 4) In the result, the Criminal Petition is dismissed. _______________________________ SAMUDRALA GOVINDARAJULU, J March 03, 2011 ksh [1] AIR 1998 Supreme Court 128 [2] 2009(1) Decisions Today (SC) 352