2025:HHC:10664 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. MMO No. 181 of 2025 Reserved on: 28.03.2025 Date of Decision: 23rd April, 2025.

Hon'ble Mr Justice Rakesh Kainthla, Judge. Whether approved for reporting?1 No. For the Petitioner : M/s Chandranarayana Singh and Devinder Sharma, Advocates.

For the Respondents : Mr. Ajit Sharma, Deputy Advocate General.

Rakesh Kainthla, Judge The petitioner has filed the present petition for quashing of FIR No. 123/2016 dated 28th April 2016, registered at Police Station, Dhalli, Shimla for the commission of an offence punishable under Section 447 of the Indian Penal Code ( IPC ), consequential criminal proceedings arising out of the FIR and charges framed by learned Additional Chief Judicial Magistrate, Court no. 1, Shimla (learned Trial Court) on 7th June 2024, in a case 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes. 2

2025:HHC:10664 titled State versus Babli . (The parties shall hereinafter be referred to in the same manner in which they are arrayed before the learned Trial Court for convenience).

2. Briefly stated, the facts giving rise to the present petition are that a complaint was filed before the police against the petitioner/accused asserting that the High Court of Himachal Pradesh had directed the registration of the FIR in cases of encroachment of Forest land in CWPIL No. 17/2014 titled Court on its own motion versus the State of HP vide order dated 27th February 2016. The petitioner had encroached upon 10 Biswas of Forest land in U-257 Kumahali bearing Khasra Nos. 135/1 and 135/2. She constructed a house in three Biswas of land bearing Khasra No.135/2 and encroached 7 Biswas of land in Khasra No. 135/1. Eight weeks were given to her to vacate the land and remove the encroachment but she failed to do so; hence it was requested that an FIR be registered against her. The police registered the FIR and conducted an investigation. The police found that the petitioner had committed an offence punishable under Section 447 of the Indian Penal Code ( IPC ) by encroaching upon the Forest land. Hence the police filed a charge sheet against the accused 3 2025:HHC:10664 before the Competent Court. Learned Trial Court ordered the framing of charges against the accused.

3. Being aggrieved by the registration of the FIR, filing of charge sheet and framing of charges, the petitioner has filed the present petition seeking their quashing. It is asserted that paternal relatives of the petitioner executed a Will in her favour on 4th April 1986 and bequeathed the land in village Chanana and Nehra Kumahali to her. A mutation was sanctioned in her favour on 22nd May 1987. The petitioner was told in the year 2002 that the land bequeathed to her was forest land. The petitioner disputed this claim. No demarcation was conducted in her presence. The petitioner filled up a form for the regularization of land as per the scheme formulated by the State Government. The State Government initiated the proceedings under HP Public Premises and Land Eviction and Rent Recovery Act, 1971 by serving a show cause notice dated 19th September 2006 upon the petitioner. The petitioner contested the proceedings. The collector passed an order of eviction on 1st August 2016 against the petitioner. The petitioner filed an appeal, which was dismissed on 9th March 2017. The petitioner filed a writ petition before the High Court, which was registered as CWP No. 1348 of 2017 titled Smt. Babli Thakur 4 2025: HHC:10664 versus State of HP. The High Court stayed the operation of the eviction order. The matter is pending before the High Court. The initiation of criminal proceedings was barred by limitation. The contents of the FIR and the statements of witnesses do not show the date of the commission of the offence. No prima facie case is made out against the petitioner. The ingredients of Section 441 were not alleged in the complaint. The allegations in the FIR are contradictory and do not constitute the commission of any cognizable offence. The matter is pending before the High Court and the continuation of proceedings before the Criminal Court is an abuse of the process of law. There is no chance of conviction of the petitioner. Therefore, it was prayed that the present petition be allowed, FIR, consequential proceedings and the charge framed by the Court be quashed.

4. I have heard M/s Chandranarayan Singh and Devender Sharma, learned counsel for the petitioner and Mr. Ajit Sharma, learned Deputy Advocate General for the respondents/state.

5. Mr. Chandranarayan Singh learned counsel for the petitioner submitted that the chargesheet is barred by limitation. The allegations in the FIR do not show the commission of a 5 2025:HHC:10664 cognizable offence. The continuation of the proceedings amounts to an abuse of the process of the Court; hence, he prayed that the present petition be allowed, FIR, consequential proceedings arising out of the FIR and the charge framed by the learned Trial Court be quashed. He relied upon B.N. John v. State of U.P. , 2025 SCC OnLine SC 7, Naresh Kumar v. State of Karnataka, 2024 SCC OnLine SC 268, Jit Vinayak Arolkar v. State of Goa , 2025 SCC OnLine SC 31, Ravi Kapoor v. State of H.P., 2019 SCC OnLine HP 642, Jothiragawan v. State, 2025 SCC OnLine SC 628, Umesh Kumar v. State of A.P., ( 2013) 10 SCC 591, Varala Bharath Kumar v. State of Telangana , ( 2017) 9 SCC 413, and Parbatbhai Aahir v. State of Gujarat , (2017) 9 SCC 641 in support of his submission.

6. Mr. Ajit Sharma, learned Deputy Advocate General for the respondents/State submitted that the trespass is a continuing wrong and the limitation does not apply to it. The allegations in the FIR show that the petitioner has encroached on the Government's land. She was asked to remove the encroachment but she continued to remain in it with the intent to annoy the owner. Therefore, he prayed that the present petition be dismissed.

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7. I have given considerable thought to the submissions made at the bar and have gone through the records carefully.

8. The law relating to quashing of FIR was explained by the Hon'ble Supreme Court in B.N. John v. State of U.P. , 2025 SCC OnLine SC 7 as under: -

2025:HHC:10664 (2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.

(3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.

(4) Where the allegations in the FIR do not constitute a cognizable offence but constitute only a non- cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code. (5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.

(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.

(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to a private and personal grudge." (emphasis added) 8 2025:HHC:10664

8. Of the aforesaid criteria, clause no. (1), (4) and (6) would be of relevance to us in this case.

In clause (1) it has been mentioned that where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused, then the FIR or the complaint can be quashed.

As per clause (4), where the allegations in the FIR do not constitute a cognizable offence but constitute only a non- cognizable offence, no investigation is permitted by a police officer without an order dated by the Magistrate as contemplated under Section 155 (2) of the CrPC, and in such a situation, the FIR can be quashed.

Similarly, as provided under clause (6), if there is an express legal bar engrafted in any of the provisions of the CrPC or the concerned Act under which the criminal proceedings are instituted, such proceedings can be quashed."

9. This position was reiterated in Ajay Malik v. State of Uttarakhand , 2025 SCC OnLine SC 185, wherein it was observed:

13. It was laid down by the Hon'ble Supreme Court in Dharambeer Kumar Singh v. State of Jharkhand , (2025) 1 SCC 392:

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14. A similar view was taken in Dineshbhai Chandubhai Patel v. State of Gujarat , (2018) 3 SCC 104 : (2018) 1 SCC (Cri) 683:

15. Hence, it is not permissible for the Court to go into the truthfulness or otherwise of the allegations made in the FIR.

16. In any case, the petitioner specifically asserted in her petition that she had filled up a form for the regularization of the land, which clearly shows that she was in possession of the Government land, and that is why she had sought the regularization of her possession, hence her submission that no encroachment was made by her is not acceptable. 14

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17. A heavy Reliance was placed upon the photocopies of various documents to show the pendency of proceedings before various forums and the pleas taken by the petitioner before those forums. It is not permissible to look into the documents annexed to the petition for quashing the FIR. It was laid down by the Hon'ble Supreme Court in MCD v. Ram Kishan Rohtagi , (1983) 1 SCC 1: 1983 SCC (Cri) 115 that the proceedings can be quashed if on the face of the complaint and the papers accompanying the same, no offence is constituted. It is not permissible to add or subtract anything. It was observed:

18. Madras High Court also held in Ganga Bai v. Shriram , 1990 SCC OnLine MP 213: ILR 1992 MP 964: 1991 Cri LJ 2018, that the fresh evidence is not permissible or desirable in the proceedings under Section 482 of Cr.P.C. It was observed:

19. Andhra Pradesh High Court also took a similar view in Bharat Metal Box Company Limited, Hyderabad and Others vs. G. K. Strips Private Limited and another , 2004 STPL 43 AP, and held:

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20. A similar view was taken in Mahendra K.C. v. State of Karnataka , (2022) 2 SCC 129: (2022) 1 SCC (Cri) 401 wherein it was observed at page 142:

21. This position was reiterated in Supriya Jain v. State of Haryana , (2023) 7 SCC 711: 2023 SCC OnLine SC 765 wherein it was held:

22. A similar view was taken in Iveco Magirus Brandschutztechnik GMBH v. Nirmal Kishore Bhartiya , (2024) 2 SCC 86: (2024) 1 SCC (Cri) 512: 2023 SCC OnLine SC 1258, wherein it was observed:

23. Therefore, it is not permissible to look into the material filed by the petitioner with the petition and the Court has to rely upon the material brought before the learned Trial Court. The authenticity of the documents filed with the petition has not been established and it is impermissible to rely upon them to quash the FIR.

24. It was submitted that the chargesheet was filed after the period of limitation and learned Trial Court erred in taking 18 2025:HHC:10664 cognizance of the same. This submission is not acceptable. It was rightly submitted on behalf of the respondents that trespass is a continuing wrong and the period of limitation does not apply to it. This proposition was laid down by this Court in Jasbir Singh v. State of H.P. , 2012 SCC OnLine HP 1297 wherein it was observed:

25. Therefore, the submission that the chargesheet was barred by limitation cannot be accepted and the judgment of this Court in Ravi Kapoor (supra) does not apply to the present case.

26. It was submitted that the civil proceedings are pending for the ejectment of the petitioner and the continuation of the criminal proceedings is not permissible. This submission is not acceptable. It was laid down in Radio Corner (Bally) v. Allwyn-A unit of Voltas Ltd., 2002 SCC OnLine AP 1103: (2003) 1 AP LJ 345: 2003 Cri LJ 3319 that there is no bar in the continuation of the criminal case during the pendency of the civil proceedings. It was observed: 21

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6. Way back in 1954, Justice Vivian Bose, in his inimitable style, explained the philosophy, underlying the separation of civil and criminal proceedings, in M.S. Sheriff v. State of Madras , (1) AIR 1954 SC 397.

7. To put it in his own words--

8. A similar view was taken by the Bombay High Court in Babulal Mishrimal Vardhan v. Sudarshan Wadia , (2) 1991 Crl. L.J. 298. If the request of the petitioners is to be acceded to, the easiest thing for an accused in any criminal case will be to file a suit relating to the subject matter involved in the criminal proceedings and seek a stay of all further proceedings in the criminal proceedings. Such a course of action would prove fatal to the entire criminal justice system."

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27. A similar view was taken in Prem Raj v. Poonamma Menon , (2024) 6 SCC 143: 2024 SCC OnLine SC 483 wherein it was observed at page 147:

28. It was submitted that the allegations in the FIR show the civil wrong and a civil wrong cannot be converted into criminal proceedings. There can be no dispute with the proposition of law that the civil dispute cannot be turned into criminal proceedings, however, it does not mean that no civil action can give rise to a 25 2025:HHC:10664 criminal action. Professor Glanville Williams explained in his celebrated book Learning the Law (Tenth Edition Steven and Sons) that the facts by themselves cannot determine civil or criminal liability. The same set of facts may give rise to criminal or civil liability. The distinction between the two is not the nature of the act but the nature of proceedings that are taken to seek the redressal. It was observed:

29. The Hon'ble Supreme Court also held in Randheer Singh v. State of U.P. , (2021) 14 SCC 626: 2021 SCC OnLine SC 942, that a given set of facts may make out a civil wrong, as well as, the criminal offence and mere availability of civil remedies is no ground to quash the criminal proceedings. It was observed:

30. A similar view was taken in V.R. Dalal v. Yougendra Naranji Thakkar , (2008) 15 SCC 625, wherein it was observed: - 27

31. In the present case, the allegations in the FIR show the commission of cognizable offence and the continuation of criminal proceedings is not bad. Hence, the judgments in Jit Vinayak Arolkar (supra) and Naresh Kumar (supra) do not apply to the present case.

32. It was submitted that there is insufficient material to convict the petitioners. It was laid down by the Hon'ble Supreme Court in State of Maharashtra v. Maroti , (2023) 4 SCC 298: 2022 SCC OnLine SC 1503 that the High Court exercising the power under Section 482 of Cr.P.C. cannot examine the truthfulness, sufficiency and admissibility of the evidence. It was observed:

33. Therefore, it is impermissible to quash the FIR and the proceedings on the ground of insufficiency of evidence. 29

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34. It is undisputed that the learned Trial Court has framed the charges against the petitioner. It was laid down in Minakshi Bala v. Sudhir Kumar , (1994) 4 SCC 142: 1994 SCC (Cri) 1181 that once the Competent Court has framed the charges, the person aggrieved may invoke the revisional jurisdiction and the High Court should not exercise its inherent jurisdiction under Section 482 of Cr.P.C., except in the rare cases. It was observed on page 145: -