1 wp1030.09 hvn IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE SIDE WRIT PETITION NO. 1030 OF 2009 Smt. Maninder Kaur Gill .. Petitioner Versus The State of Maharashtra and Another ... Respondents Mr. Sachin Chandan i/by Mr. Vinod Wagh for the petitioner. Mr. C.G. Gavnekar for respondent no. 2. Mrs. U.V. Kejriwal, A.P.P. for State. CORAM : SMT. R.P. SONDURBALDOTA,J. DATED : FEBRUARY 11, 2011 P.C. 1. On 23rd April, 2008 the petitioner herein filed a complaint against respondent no. 2 alleging offences punishable under sections 441, 427, 504, 506(2) of Indian Panel Code. On this complaint, the trial court, after recording verification of the applicant, referred the matter for enquiry to police under section 202 of Code of Criminal Procedure. Accordingly police carried out enquiry by recording statement of witnesses, collected 2 wp1030.09 documents, and submitted report. Thereafter the trial court by its order dated 24th July, 2008 issued process against respondent no. 2 only under section 441, 447 and 504 of Indian Penal Code observing that, prima facie there was no ground to proceed under section 506(2) of the Indian Penal Code. The order of the trial court came to he challenged by the respondent before the Sessions Court by filing Criminal Revision Application No. 858 of 2008. The Sessions Court by its order dated 20th March, 2009 allowed revision application holding that the dispute between the parties is essentially a civil dispute and that the report filed by the police did not reveal commission of any offence. The report mentions that the dispute between the parties could be resolved by taking measurements of the property. The report also noted that there is civil suit filed by the petitioner against respondent no. 2 in which she had sought interim order for measurement and inspection of the property, for ascertaining the boundaries. Undisputedly, pursuant to the direction of the Civil court, the Commissioner visited the property and had submitted his report as regards the 3 wp1030.09 boundaries of the two properties. On the basis of the report of the Commissioner, the trial Court has passed an order directing both the sides to remain within their respective boundaries. 2. The complaint of the petitioner is that on 27th January, 2008 her neighbor one Sudam informed her on telephone that respondent no. 2 and 4/5 other persons were attempting to remove the wire fencing put by the petitioner around her property admeasuring 3 gunthas situate at survey no.1, hissa No. 3/10. The Petitioner visited the site on the next day i.e. on 28th January 2008 after 2.00 p.m. It is her case that she found that at that time respondent no. 2 and 4/5 persons were in the process of breaking the wire fencing of the compound. When she questioned them about the same, respondent no. 2 allegedly abused and threatened her. She went to the police station on the next date i.e. on 29th January, 2008 and lodged complaint. As police did not pay any heed to her she filed private complaint no. 4 on 24th July, 2008. According to the report of the police, Sudam who is alleged to have informed her over phone, has not supported her. In any case, it will be difficult 4 wp1030.09 to believe that the work of removing of wire fencing around the land admeasuring 3 gunthas commenced on earlier day had continued till past noon on the next day. The Sessions Court has rightly observed that the dispute between the parties is a civil dispute regarding boundaries of the two properties. It has also taken note of the fact that petitioner has already filed civil proceedings in connection with the boundary dispute and there are interim orders passed therein. It is nobody’s case that there is any flouting of the interim orders. The Sessions Court has also taken a note of the fact that the order passed by the learned trial court does not reflect that it had applied mind to the report of enquiry. After directing enquiry by the police, if the trial court wanted to take a view different from that in the police report, it was expected that it would state some reasons for its order for rejecting the police report. Therefore, the order passed by the trial court cannot be called as just, legal and correct. The Sessions Court considered the report of the police extensively and has observed at para 13 that though the police report does not circumscribe the discr4etionary powers of the 5 wp1030.09 Magistrate and the Magistrate is to be guided by his own judgment on the existence of the facts as are brought before him, if the Magistrate decided to postpone to issue process and direct the matter to be investigated under section 202 of Cr.P.C. then it is expected that he should not summon the accused unless he considers the report of enquiry. In the instant case, the enquiry report totally negatived the case of the respondent because the witness Sudam Shinde in his statement before the police stated that he had no knowledge whatsoever about any such action by respondent no. 2. He had no knowledge of any criminal trespass on the property by respondent no.2. The Sessions Court has lastly observed that summoning the accused is a serious matter. Criminal law can not be set into motion as a matter of course. 3. The Sessions Court has taken correct view of the matter. There is no need to interfere with the same. Hence, petition is dismissed. [Judge]