IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Crl.Misc.Petition No.M-29554 of 2008 Date of Decision: 8.12.2009 Manpreet Singh. ....... Petitioner through Shri Sanjay Kaushal, Advocate. Versus Union Territory of Chandigarh and others. ....... Respondent Nos. 1 to 3 through Shri D.D.Sharma, Advocate. Respondent no.4 through Shri Karan Vir Nanda, Advocate. CORAM: HON'BLE MR.JUSTICE MAHESH GROVER .... 1. Whether Reporters of Local Newspapers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? .... Mahesh Grover,J. This is a petition under Section 482 of the Code of Criminal Procedure,1973 (for short, `the Cr.P.C.') in which the petitioner has prayed for quashing of order dated 15.9.2008 (Annexure P5) passed by the Judicial Magistrate Ist Class, Chandigarh (hereinafter referred to as `the Magistrate') with a further prayer for issuance of necessary directions to respondent Crl.Misc.Petition No.M-29554 of 2008 -2- .... nos.1 to 3 to register an F.I.R. against respondent no.4 on the basis of the complaint which was preferred by him under Section 156(3) of the Cr.P.C. before the Court of the Magistrate. The case of the petitioner is that he had purchased Shop No.119, Old Ropar Road, Mansa Devi Chowk, Mani Majra vide a registered sale deed dated 18.2.2005. Somewhere in the middle of February,2008 when the petitioner visited the aforesaid premises, he found that respondent no.4 had illegally trespassed into the same and was occupying it. All attempts by the petitioner to get the shop in question vacated proved futile forcing him to file a complaint, which is annexed as Annexure P3 before the Magistrate invoking her power under Section 156(3) of the Cr.P.C. Pursuant to the said complaint, the Magistrate referred the matter to the concerned official of the Police, who purportedly investigated the matter and submitted a report which was accepted by her resulting in passing of the impugned order in which she held that no offence was said to have been made out and respondent no.4 was a tenant in the shop in question. This has actuated the grievance of the petitioner and has compelled him to file the instant petition in which the impugned order has been questioned on the following grounds:- (1)that the Magistrate had rightly exercised her power under Section 156(3) of the Cr.P.C., but the police failed in its duty to register the F.I.R. and then investigate the matter. Crl.Misc.Petition No.M-29554 of 2008 -3- .... (2) That the investigation was slip-shod & tardy and the police did not even look into the basic aspects of the matter before it returned its finding that respondent no.4 was a tenant on the shop in question; and (3) that in the absence of any material before the police to establish that respondent no.4 was a tenant, the only other conclusion was that he was a trespasser and should have been proceeded against. Respondent no.1 to 3 have filed a reply in which they have stated that the matter was investigated into and they came to a conclusion that respondent no.4 was a tenant on the premises in question. During the course of arguments, when questioned by the Court as to what was the material to suggest that respondent no.4 was a tenant, learned counsel for respondent nos. 1 to 3 contended that the only material which they had collected was in the shape of statements of few persons, who were occupying shops in the vicinity. However, he candidly admitted that no material in the shape of rent note and rent receipts or the account books of respondent no.4 were examined to see whether any rent had been paid and was accepted by the petitioner. Learned counsel for respondent no.4, on the other hand, also contended similarly as the learned counsel for respondent nos. 1 to 3. He also could not show any material to this Court regarding the rent receipts or Crl.Misc.Petition No.M-29554 of 2008 -4- .... rent note from where it could be inferred that he was a tenant in the premises in question. A number of opportunities were given to him to show any material to this effect. He also contended that except for the statements of the persons occupying shops in the vicinity, there was no other material. I have thoughtfully considered the rival contentions and have perused the material on record. Learned counsel for the petitioner has strenuously pleaded before this Court that the petitioner had never let out the premises in question to respondent no.4 and that the latter had usurped the possession unauthorisedly. He has also pleaded that the prime indicator of such an unauthorised act of respondent no.4 is the fact that he has been unable to produce any material before this Court to show and establish his tenancy. Neither any rent note nor any rent receipt nor any accounts book has been shown, so much so, that the bona fides of respondent no.4 come straight- away under cloud because he stated that the tenancy was obtained from the father of the petitioner, whereas this plea is falsified from the fact that the shop was purchased in the year 2005 and prior or subsequent thereto, the father of the petitioner was having no concern with the said premises. There seems to be truth in what has been pleaded before this Court. It is strange that respondent no.4 has pleaded before this Court that he had acquired tenancy rights qua the shop in question from the father of the petitioner,where the material on record reveals that the father of the Crl.Misc.Petition No.M-29554 of 2008 -5- .... petitioner was no where in picture since the premises was purchased in the year 2005 and neither prior nor subsequent thereto, was the father of the petitioner having any concern with the same. Besides, no material has been shown to this Court from where it can be inferred that respondent no.4 was a tenant over the shop in question. Learned counsel for respondent nos. 1 to 3 has also not been able to substantiate and justify the investigation which was supposedly carried out by the investigating officer. The Court is constrained to observe that the investigating officer has lost sight of the basic principles of investigation while dealing with the matter. It was his bounden-duty to look at these aspects which ought to have come normally to the mind of an investigating officer while dealing with a case of such kind. Rather, he chose to record the statements of some persons, who may have been interested in respondent no.4 to establish that he is a tenant. It is strange that the status of respondent no.4 was determined only on the basis of the statements of few persons in the vicinity and the investigating officer did not even bother to take any pains to verify from the record of respondent no.4 or of the petitioner regarding payment and receipt of rent. That apart, respondent nos. 1 to 3 also failed to register any F.I.R. against respondentno.4 for investigating the matter. It is a settled principle of law that once the Magistrate exercises powers under section Crl.Misc.Petition No.M-29554 of 2008 -6- .... 156(3) of the Cr.P.C., the police is bound to register an F.I.R. if the allegations disclose the commission of a cognizance offence and investigate the matter thereafter and submit a report under Section 173(2) of the Cr.P.C. in such a case. No such procedure was followed. The petitioner has categorically averred that no F.I.R. was registered and respondent nos. 1 to 3 in their written statement are mysteriously silent in this respect. The Court is, therefore, of the opinion that the Magistrate overlooked this fact while passing the order, Annexure P5. She did not take into account the fact that no F.I.R. was registered and simply accepted the report which is no report in the eyes of law. Consequently, the impugned order is set aside and the matter is remanded back to the Magistrate, who shall ensure that the provisions of Section 156(3) of the Cr.P.C. are strictly complied with by respondent nos. 1 to 3. The needful be done by the Magistrate within one week from the receipt of a copy of this order. Respondent nos. 1 to 3 shall investigate the matter within one week from the date of receipt of the copy of the order of the Magistrate. At this stage, learned counsel for the petitioner contended that since the Court has examined the material itself and because of the reason that there is no proof of tenancy of respondent no.4 on the premises in question, it may be directed that possession thereof should be handed over to the petitioner. Crl.Misc.Petition No.M-29554 of 2008 -7- .... I am afraid, this contention cannot be accepted. It is a settled principle of law that even a trespasser has to be dispossessed in accordance with law. The petitioner, therefore, cannot be granted possession in the manner in which he has prayed for. However, keeping in view the peculiar circumstances of the case when prima facie it appears that respondent nio.4 is a trespasser; in the eventuality of the petitioner taking steps to recover the possession of the shop in question, the Court of competent jurisdiction shall, in the first instance, ensure that his interests are safe-guarded by determining the matter regarding the compensation on account of use and occupation of the premises in question ever since respondent no.4 is in possession thereof and shall also ensure that such compensation is paid in the first instance for the previous period and shall ensure that it is paid for future as well till the disposal of the proceedings so initiated by passing appropriate orders in this regard. The proceedings shall also be concluded on a day to-day basis, keeping in view the fact that prima facie, respondent no.4 has unauthorisedly usurped the possession of the shop belonging to the petitioner. With the aforesaid observations, the petition is disposed of. December 8,2009 ( Mahesh Grover ) “SCM” Judge