IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Cr.MMO No. 136 of 2008. Decided on: 16.3.2009. _________________________________________________ Parmod Kalta …….. Petitioner Versus Kanshi Ram and another …….. Respondents Coram The Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting ? Yes. For the petitioner : Mr. Virender Singh Chauhan, Advocate. For the respondent : Mr. J.S. Guleria, Asstt. Advocate General for respondent No.2. None for respondent No.1. Surinder Singh, J (oral). The present petition has been filed against the order dated 10.7.2008 , of the learned Additional Sessions Judge (Fast Track Court) in Criminal Revision No.11-R/10 of 2008/05, whereby the trial court order dated 27.9.2005, with respect to the cancellation of FIR No.79/04 dated 6.4.2004, registered in police station Rohru was upheld. Heard and gone through the record. In short, the facts giving rise to the present case are that on 5.4.2004, the petitioner herein filed a _______________________________________________ Whether reporters of Local Papers may be allowed to see the Judgment ?. Yes. - 2 - Complaint against respondent Kanshi Ram, in Police Station, Rohru that he along with his brother had purchased a land comprised in Khasra Nos.68 and 69, measuring 1-39-99 hectares, situated in Mauja Bosari, Tehsil Chirgaon, District Shimla, which was developed by them as an orchard. It was alleged that some part of the aforesaid land was forcibly occupied by Kanshi Ram and his family members but he did not mention the date of such an encroachment. He alleged that he had moved an application for demarcation, but no such demarcation was carried out. According to him, the respondents and his family members were using the usufruct thereof illegally and they also fell ‘Kail’ and ‘Deodar’ trees on the encroached area. It was also alleged that while lopping the branches, one of the tree had damaged the G.I. sheets of his newly constructed house and this fact came to the notice on 5.4.2004, thus sought the action. On these allegations, FIR No.79/04 was registered in Police Station Rohru. Police got the disputed land demarcated. It was found that the respondents Kanshi Ram and his son Suman Prakash had encroached upon 2½ bighas of land in Khasra Nos.68 and 69 which was alleged to have been purchased by the petitioner where upon the respondents planted the apple trees which were of about two years old and few stumps of the trees were also found to have been damaged. The - 3 - Investigating Officer came to the conclusion that no case was made out against the respondent and his son, for the reasons that they were in possession of the land since long. The dispute inter-se the parties was of a civil nature, thus recommended the cancellation of the FIR. A notice of the cancellation was given by the learned trial court to the petitioner. He filed his objections. According to him, the encroachment by respondent No.1 over his land stood proved. The respondent No.1 being an influential person had utilised the political influence to obtain the cancellation report, thus he sought the re-investigation. These objections were gone into in detail by the learned trial court and it was observed that the respondent No.1 was in possession of the alleged encroached area for the last about 2-3 years i.e. prior to the filing of complaint, as was evident from the statements of the witnesses and also the demarcation report. The learned trial Court felt satisfied with the investigation conducted by the police and rejected the objection petition. The revisional Court also noticed the above facts and held that when the accused persons are in possession since long, the alleged offence was not made out by any stretch of imagination. Further on the perusal of the documents appended with the present petition, I find that the - 4 - complainant had also filed a suit No.57-1 of 2005 for possession against respondent No.1 with respect to the land in dispute, which was decreed on 27.2.2006 by the learned Civil Judge (Junior Division). Therefore, in the above circumstances, I do not find that any criminal offence is made out against the respondent No.1 or any of his family members as alleged. Thus the continuance of the proceedings pursuant to the FIR No.79/04 would be an abuse of process, as such, the impugned order passed by the learned trial court canceling the FIR and as upheld by the learned Addl. Sessions Judge (Fast Track Court) is legally and factually correct, hence present petition is dismissed. March 16,2009. (Surinder Singh), (Pds) Judge.