Telangana High Court
Banda Sathaiah Yadav 9 Others vs Rafath Zamani Another on 25 January, 2019
HONOURABLE Dr. JUSTICE B. SIVA SANKARA RAO
CRIMINAL PETITION No. 4472 OF 2013
ORDER :
Petitioners 1 to 10 are accused in CC.No.367 of 2012 on the file of the XIV Metropolitan Magistrate, Cyberabad, L.B.Nagar, taken cognizance for the offences punishable under Sections 447, 427 and 506 IPC which is on the protest petition filed by the defacto complainant RufathZamani dated 10.2.2012 running in three pages with averments in Crl.M.P.No.807 of 2012 under Section 202 Cr.P.C. that she already lodged a complaint against the accused persons supra, before P.S. PahadiShareef who registered Cr.No.419 of 2009 for the offences supra and they filed quash petition impugning the said FIR before the High Court in Crl.P.No.382 of 2010 and the same was disposed of without choosing to quash by directing to surrender before the concerned Court and move for bail by executing a bond for Rs.5,000/- with sureties vide order dated 10.11.2011 and they availed the concession of bail pursuant to the order supra and Police after investigation filed the final report by referring as dispute of civil in nature on 28.1.2012 and she received notice on 6.2.2012 about the referred report and thereby filed the protest petition. It is her submission at the end of page-2 therefrom that the police of PahadiShareef without recording any statements of material witnesses and without collecting documents, filed the referred report at the influence of the accused and they are from the beginning helping the accused and the police referred report is liable to be rejected. It is further stated by her that she went to the I.O. of Pahadi Shareef Police Station 2 requesting to record the statements of the witnesses and to collect the material papers, but I.O. refused to take and to record the statements of the witnesses in respect of the land involved in the crime situated at Jalpally village, Saroornagar mandal owned and possessed by her and she is ready and willing to produce witnesses and documents to establish the case, therefore, prayed to reopen the case for adducing the evidence on her behalf by rejecting the police final report. She cited one Waheeduddin, s/o. Khaja Nizamuddin of Moghalpura as a witness. She did not enclose any documents to the protest petition but for mentioning at page-3 of the protest petition and saying list of documents would be filed during trial. The statement of Waheeduddin recorded by the learned Magistrate on 15.11.2012 reads that he knew the complainant who owned and possessed agricultural land in Sy.No.54 admeasuring Ac.1.34 guntas situated at Jalpally village and he went along with the complainant in the year 2009 to the said land and the accused persons supra trespassed into the above mentioned land and caused damage to the existing crop and threatened to kill the complainant and occupy the physical possession of the land. So far as the statement of the defacto complainant protest petition is concerned, it is running only in four paras, first para her name and description, second para as owner and possessor of the land in question, she is in possession and enjoyment, and accused trespassed and caused damage to the standing crop and threatened to kill and grab her land without right. Paras 3 and 4 speaks about Crime No.419 of 2009 registered by police and filed the final report. The sum 3 and substance of the statements of the two witnesses recorded by the learned Magistrate on the protest application speaks that accused trespassed and caused damage to the standing crop and threatened the complainant to kill and occupy possession of the property in Sy.No.54 in question.
2. The order of the learned Magistrate from the protest petition with the statements recorded supra on the respective dates 15.11.2012, 29.11.2012 reads that complainant present and her statement recorded so also of another witness M.A. Waheeduddin on 15.11.2012 and posted for consideration to 29.11.2012 where mentioned complainant present and perused the complaint and documents filed in support of her complaint and considering the facts the cognizance is taken on file for the offences punishable under Sections 447, 427 and 506 IPC against the accused in ordering to issue summons against the accused on payment of process by complainant.
3. Said order of the Magistrate is impugned in the quash petition saying the alleged trespass into the land of the complainant by the accused in Sy.No.54 in Jalpally in Acs.12.37 gts on 10.10.2009 is untrue in lodging the complaint before the police on 16.10.2009 in registering Cr.No.419 of 2009. The police after investigation filed the final report of "dispute civil in nature" and from the protest raised by the defacto complainant, learned Magistrate taken cognizance without reasons and without application of mind and without even verification of the ingredients of the offences to be made out, that the petitioners are 4 innocent and no way concerned with alleged offences and defacto complainant maliciously instituted the private complaint. It is further averred that the accused filed O.S.No.2321 of 2008 against the defacto complainant before the Principal Senior Civil Judge, Rangareddy and in I.A.No.3303 of 2008 there is a status-quo order passed, which is extended from time to time and in force even by the date of giving report on 16.10.2009 for registration of the crime and in the report the said factum of civil suit and status-quo order not mentioned and came with a report with incorrect allegations and there is no whisper of the suit and defacto complainant also later filed O.S.No.188 of 2010 before the III Additional Junior Civil Judge, Rangareedy district for permanent injunction and the suit was dismissed for default on 14.3.2012 and the invoking of the criminal jurisdiction for purely civil issue is untenable other than malafide and thereby liable to be quashed.
4. Learned counsel for the petitioners reiterated the above contentions in the quash petition against the cognizance order of the learned Magistrate and the learned counsel for the defacto complainant opposed the quash petition saying no grounds to interfere against the cognizance order of the learned Magistrate on the protest petition.
5. Heard and perused the material on record.
6. For deciding the same, it is necessary to refer the FIR and police final report. The FIR in registration of the crime and the police final report from the investigation after taking legal opinion shows that as per the defacto complainant's complaint dated 16.10.2009, she is the owner 5 of the land in Sy.No.54 of Jalpally of Ac.12.37 gts which she purchased on 23.7.1978 from Bacha Jali Noria and pattadar pass books and revenue title deeds were also obtained by her. Since 2006, some persons who are the accused/petitioners herein and others all mentioned as 13 in number having created duplicate documents for the said land registered by document No.2224 of 2009 criminally trespassed into the land of the defacto complainant who raised Jawar and damaged the crop on 10.10.2009 at 2.00 p.m. and threatened her with dire consequences. Hence to take action.
7. The final report mentions in further to it that the land in Sy.No.54 and 215 respectively is a total of Ac.13.24 gts of which, Sy.No.215 is only 0.27 gts and Smt.Sayeeda Rafath Zamani and Banda Sattaiah are having rival claims and Smt. Rafath Zamani claiming of purchase from Bacha Jali Noria through registered sale deed, and the second party is claiming that they are the legal heirs of Banda Mallaih, the protected tenant and the Deputy Collector-cum-MRO, Saroornagar issued pattadar pass books and title deeds in favour of Banda Sattaiah and others on 9.5.2008 and Smt. Rafath Zamani filed appeal against it before the RDO, Rangareddy district and RDO set aside the order of MRO supra issued in favour of Banda Sattaiah with a direction to conduct de-novo enquiry and Banda Sattaiah and others filed civil suit in O.S.No.241 of 2009 and obtained temporary injunction in I.A.No.222 of 2009. The Deputy Collector-cum-MRO, pursuant to the re-enquiry order of RDO reiterated the right in favour of Banda Sataiah and others on 27.11.2011 from 6 which Smt. Rafath Zamani filed fresh appeal before the RDO that has ended in dismissal. It is mentioned that on 17.12.2011, the I.O. received petition from one G.Madhusudan Reddy, Advocate for Bana Shoba and others through the ACP, Shamshabad to investigate the matter thoroughly of Cr.No.419 of 2009 and he addressed letter to the Public Prosecutor, for which the Additional Public Prosecutor Sri P.Ravinder Reddy of Additional M.S.J. Court, Cyberabad, issued opinion and therefrom there is a dispute of ownership which is further aggravated by the proceedings initiated by each other and referred as dispute of civil nature.
8. The crux in fact required for the police to investigate was whether there was any trespass and mischief on 10.10.2009 from the report registered as Cr.No.419 of 2009 on 16.10.2009. The subsequent proceedings are no way much relevant for the purpose of the case. A perusal of the final report of the police reveals that they are influenced by subsequent events without considering the very crux of the matter. In the final report there is no whisper as to whether any witnesses were examined and whether they secured the documents. There is nothing, even so at least defacto complainant was examined. In the protest petition this is one of the contentions of the defacto complainant that none of the material documents collected even ready to give or any witness examined, that is the crux in filing the protest petition.
9. From the above, coming to the further factual matrix, it is the submission of the learned counsel for the accused/petitioners that in the 7 civil suit in O.S.No.2321 of 2008 filed by them against Rafath Zamani who is the defacto complainant according to them in I.A.No.3303 of 2008, there was a status-quo order till 2.12.2008 originally granted ex- parte and subsequently extended the same. As can be seen from the docket order dated 16.9.2009 after hearing counsel for the petitioners and the respondent extended the status-quo order to 10.11.2009 by posting for enquiry to say by then there is already a counter filed by respondents with appearance as without counter, unless treated as no counter, the question of posting for enquiry does not arise. The alleged trespass was on 10.10.2009. The status-quo extension order was on 16.9.2009 till 10/11/2009. Undisputedly, it is only a status-quo order against both sides to maintain existing status-quo as on date. If at all really the defacto complainant was in possession and the accused persons as plaintiffs claimed as if in possession and even obtained ex-parte status- quo order, that was continued or extended without even consideration of the counter, it cannot be said that the plaintiffs/accused were in possession of the property. The very report in registration of the crime that also referred in the final report pages 1 and 2, it is crystal clear that the claim of defacto complainant is the alleged trespass by accused and others on 10.10.2009 and pattadar pass books and revenue title deed issued in her favour, she got registered sale deed dated 23.7.1978 in her favour having purchased from Bacha Jali Noria and that is also referred and the title of the accused persons is covered by so called pattadar pass book and revenue title deed obtained for the first time on 9.5.2008, just 8 before the filing of the suit in O.S.No.2321 of 2008. It appears that the I.O. at least did not verify the pattadar pass book, title deed and original sale deed of the defacto complainant. The final report page No.4 refers the document of sale in favour of the defacto complainant executed by Bacha Jali Noria. It is mentioned that the document was dated 23.7.1978 whereas stamp purchased on 25.7.1978. If at all it is true, there is some meaning to doubt it as the question of execution of the document on a stamp purchased at a subsequent date does not arise but for executed with ante date. However, that document is not placed by either party. The final report also speaks about the pattadar passbook and title deed in favour of the defacto complainant also pursuant thereto. Once it is the criteria and crux that as on the date of the trespass really the defacto complainant was in possession and accused criminally trespassed and damaged and committed mischief of the crop therein as claimed by the defacto complainant that can be served the purpose other than referring simply without going into the merits of the report by influenced upon by the subsequent events by the I.O.
10. Had the Learned Magistrate properly perused the record before acceptance of the final report if any, could have directed further investigation and it is also silent from the quash petition averments and also from the order of the learned Magistrate taken cognizance on the protest application including the protest application as to the police final report of dispute of civil nature was accepted by the Magistrate, Had it been accepted by the Magistrate, the only recourse available on the 9 protest petition subsequently filed by the complainant is under Section 200 to 204 read with 190 Cr.P.C. and if not accepted the final report of referred report, leave about otherwise entitled to differ with police opinion, he is also entitled to direct further investigation though not entitled to direct re-investigation much less by another agency.
11. Learned Magistrate also did not do so. A perusal of the cognizance order with the statements of the two witnesses including the defacto complainant examined by the learned Magistrate shows civil documents filed herein in opposing the quash petition not even filed before the learned Magistrate. Thereby it requires to set aside the order of the learned Magistrate and to give directions necessary.
12. Having regard to the above and in the result, the Criminal Petition is allowed only to the extent of setting aside the cognizance order of the learned Magistrate and the matter is remanded back to the lower Court to restore the protest application to file and if at all by the time the protest application filed, police final report of civil nature not accepted, learned Magistrate by virtue of this order is also directed to refer the matter with necessary documents of the defacto complainant also to the police for further investigation as to the state of things as on the date of the alleged offence, uninfluenced by subsequent documents so as to who were in possession and what was the crop and whether there was really any trespass and mischief and to file further final report. If at all that referred report of civil nature accepted by the learned Magistrate before filing of the protest petition, as he became functus officio to reopen the accepted 10 final report of the civil nature to order further investigation, he has to proceed as a private complaint procedure on the protest petition as the only remedy under Section 200 to 204 read with 190 Cr.P.C. and thus by virtue of this order to permit the defacto complainant to adduce pre- cognizance further induce with the document also for recording the statement further of defacto complainant and witnesses if any.
13. Accordingly, Criminal petition is disposed of.
Miscellaneous petitions pending, if any, shall stand closed.
____________________________ Dr. B. SIVA SANKARA RAO, J Date: 25.1.2019.
KPM