Jammu & Kashmir High Court - Srinagar Bench
Dilshada Sheikh vs Saba Sheikh on 20 April, 2022
Author: Sanjay Dhar
Bench: Sanjay Dhar
IN THE HIGH COURT OF JAMMU & KASHMIR AND
LADAKH
AT SRINAGAR
Reserved on: 07.04.2022
Pronounced on:20.04.2022
CRM(M) No.403/2021
CrlM No.1353/2021
DILSHADA SHEIKH ... PETITIONER(S)
Through: - Mr. Areeb Javed Kawoosa, Advocate.
Vs.
SABA SHEIKH ...RESPONDENT(S)
Through: - Mr. Jehangir Iqbal Ganai, Sr. Adv. with
Mr. Murfad Naseem, Advocate.
CORAM: HON'BLE MR. JUSTICE SANJAY DHAR, JUDGE
JUDGMENT
1) The petitioner has challenged the complaint filed by respondent against him before the Court of Chief Judicial Magistrate, Srinagar, wherein the petitioner is alleged to have committed offence under Section 447 IPC. Challenge has also been thrown to order dated 05.11.2021 passed by the learned Magistrate on the aforesaid complaint whereby, after taking cognizance of the offence, process has been issued against the petitioner.
2) In the impugned complaint, the respondent-complainant has alleged that she happens to be the daughter of the petitioner/accused and that after the death of Shri Javaid Sheikh, father of the complainant and 2 CRM(M) No.403/2021 CrlM No.1353/2021 husband of the petitioner/accused, the property left behind by him devolved upon the petitioner/accused and her three daughters including the respondent herein. It is alleged in the complaint that respondent had three rooms in her possession in one of the properties left behind by her late father and on 05.09.2021 before leaving for Delhi, she locked all these three rooms in presence of her sister Shahala Ali Sheikh with all her belongings inside the room. The respondent is alleged to have informed the SHO concerned about her apprehension that the petitioner/accused may try to dispossess her from these three rooms by breaking open the locks. It has also been alleged in the complaint that on 02.10.2021, respondent/complainant was informed by her sister that the locks of these three rooms have been broken by the petitioner and that she has trespassed into these rooms. Accordingly, the respondent/complainant approached the police for lodging the FIR. However, no action was taken in the matter. It is also alleged in the complaint that ever since the petitioner/accused started questioning the entitlement of respondent/complainant to her share in the property left behind by her father, the respondent sent a legal notice to her through her lawyer but the approach of the petitioner/accused has been aggressive.
3) It appears that upon receipt of the aforesaid complaint, the learned Magistrate, after recording the statement of the complainant, referred the matter for enquiry to the police in terms of Section 202 Cr. P. C. Upon receipt of the report of the enquiry, the learned Magistrate has, in terms of impugned order dated 05.11.2021, observed that offence under 3 CRM(M) No.403/2021 CrlM No.1353/2021 Section 447 IPC is, prima facie, made out against the petitioner/accused and, as such, process was issued against her.
4) The petitioner has challenged the complaint and the order of issuance of process against her, primarily, on the ground that one co- sharer of a property cannot be stated to have committed the offence of criminal trespass if he or she enters in the room which is in possession of another co-sharer. It has been further contended that respondent by filing the criminal complaint against the petitioner is only trying to settle a purely civil family dispute by giving it a criminal colour which is not permissible in law.
5) Respondent/complainant on the other hand has contended that she was in possession of three rooms which she had locked and as per the allegations made in the complaint, which are supported by the enquiry report of the police, the petitioner has broken open these locks which clearly makes it as a case of criminal trespass. Therefore, the complaint and the proceedings cannot be quashed at this stage without trial of the case.
6) I have heard learned counsel for the parties and perused the material on record.
7) As is clear from the contents of the complaint and the documents annexed thereto, there appears to be a dispute relating to inheritance of the property left behind by the predecessor-in-interest of the parties. While respondent/complainant claims that she was in possession of three 4 CRM(M) No.403/2021 CrlM No.1353/2021 rooms of the house which she had locked but the petitioner trespassed into these rooms in her absence, the petitioner claims that the property is unpartitioned and being a co-owner, she can walk into any portion of the joint property.
8) The question that falls for determination is whether in the face of the aforesaid nature of dispute between the parties, it would be open to a criminal court to set the law into motion at the instant of one party to the dispute against the other.
9) The Supreme Court in the case of M/S Indian Oil Corporation vs. M/S NEPC India Ltd. & Ors (2006) 6 SCC 736, while noticing its earlier judgments on the issue relating to exercise of jurisdiction under Section 482 of Cr. P.C to quash the complaints and criminal proceedings, has observed as under:
"12. The principles relating to exercise of jurisdiction under Section 482 of the Code of Criminal Procedure to quash complaints and criminal proceedings have been stated and reiterated by this Court in several decisions. To mention a few - Madhavrao Jiwaji Rao Scindia v. Sambhajirao Chandrojirao Angre [1988 (1) SCC 692], State of Haryana vs. Bhajanlal [1992 Supp (1) SCC 335], Rupan Deol Bajaj vs. Kanwar Pal Singh Gill [1995 (6) SCC 194], Central Bureau of Investigation v.
Duncans Agro Industries Ltd., [1996 (5) SCC 591], State of Bihar vs. Rajendra Agrawalla [1996 (8) SCC 164], Rajesh Bajaj v. State NCT of Delhi, [1999 (3) SCC 259], Medchl Chemicals & Pharma (P) Ltd. v. Biological E. Ltd. [2000 (3) SCC 269], Hridaya Ranjan Prasad Verma v. State of Bihar [2000 (4) SCC 168], M. Krishnan vs Vijay Kumar [2001 (8) SCC 645], and Zandu Phamaceutical Works Ltd. v. Mohd. Sharaful Haque [2005 (1) SCC 122]. The principles, relevant to our purpose are:
(i) A complaint can be quashed where the allegations made in the complaint, even if they are 5 CRM(M) No.403/2021 CrlM No.1353/2021 taken at their face value and accepted in their entirety, do not prima facie constitute any offence or make out the case alleged against the accused.
For this purpose, the complaint has to be examined as a whole, but without examining the merits of the allegations. Neither a detailed inquiry nor a meticulous analysis of the material nor an assessment of the reliability or genuineness of the allegations in the complaint, is warranted while examining prayer for quashing of a complaint.
(ii) A complaint may also be quashed where it is a clear abuse of the process of the court, as when the criminal proceeding is found to have been initiated with malafides/malice for wreaking vengeance or to cause harm, or where the allegations are absurd and inherently improbable.
(iii) The power to quash shall not, however, be used to stifle or scuttle a legitimate prosecution. The power should be used sparingly and with abundant caution.
(iv)The complaint is not required to verbatim reproduce the legal ingredients of the offence alleged. If the necessary factual foundation is laid in the complaint, merely on the ground that a few ingredients have not been stated in detail, the proceedings should not be quashed. Quashing of the complaint is warranted only where the complaint is so bereft of even the basic facts which are absolutely necessary for making out the offence.
(v) A given set of facts may make out: (a) purely a civil wrong; or (b) purely a criminal offence; or (c) a civil wrong as also a criminal offence. A commercial transaction or a contractual dispute, apart from furnishing a cause of action for seeking remedy in civil law, may also involve a criminal offence. As the nature and scope of a civil proceedings are different from a criminal proceeding, the mere fact that the complaint relates to a commercial transaction or breach of contract, for which a civil remedy is available or has been availed, is not by itself a ground to quash the criminal proceedings. The test is whether the allegations in the complaint disclose a criminal offence or not.
14.While no one with a legitimate cause or grievance should be prevented from seeking remedies available in criminal law, a complainant 6 CRM(M) No.403/2021 CrlM No.1353/2021 who initiates or persists with a prosecution, being fully aware that the criminal proceedings are unwarranted and his remedy lies only in civil law, should himself be made accountable, at the end of such misconceived criminal proceedings, in accordance with law. One positive step that can be taken by the courts, to curb unnecessary prosecutions and harassment of innocent parties, is to exercise their power under section 250 Cr.P.C., more frequently, where they discern malice or frivolousness or ulterior motives on the part of the complainant. Be that as it may."
10) From the aforequoted principles of law, it is clear that before deciding as to whether proceedings in a criminal complaint are to be quashed, the Court has to be satisfied that the subject matter involved in the complaint is a purely civil wrong and it has no criminal texture to it.
11) In the light of the aforesaid legal position, let us now analyze the facts of the instant case. As already noted, the respondent claims herself to be the co-sharer of the property in which she had locked three room. Along with the complaint, she has placed on record copy of the legal notice dated 03.09.2021. In the said legal notice, after giving details of the properties left behind by her late father, she has claimed that as per Shariat law, she is entitled to the share in the aforesaid property. She has gone on to submit that a writ petition in respect of one of the joint properties has been withdrawn without her consent by accepting an amount of Rs.2.00 crores. Finally, she has called upon the petitioner and her other sisters to provide to her due share in the joint property. The respondent has also placed on record reply to the aforesaid legal notice given on behalf of her mother/the petitioner herein, wherein, after 7 CRM(M) No.403/2021 CrlM No.1353/2021 denying the allegations of the respondent, an offer has been made to resolve the matter amicably.
12) A copy of the report of the police under Section 202 of Cr. P. C is on the record, in which it has been submitted that the respondent mainly resides in Delhi where she is doing some business and a few days back, she had come to Srinagar to reside with her mother and other sisters. The report goes on to state that the respondent had come to Srinagar as usual in the month of September and after residing in her house for a few days, she went back to Delhi and locked three rooms of the house belonging to her father whereafter she handed over the keys of the rooms to one of her friends and told her sister that in case of necessity, they can get the keys from her friend. The report goes on to state that upon enquiry by the respondent from her sister, she was told that these locks were opened by her mother i.e., the petitioner herein when she was in Delhi. To the same effect is the statement of Shahala Ali, the sister of respondent, who has stated that their mother opened the locks of these rooms.
13) From the aforesaid material on record which includes the documents placed on record by respondent along with her complaint, one thing becomes clear that there has been no partition of the properties left behind by the predecessor-in-interest of the parties. It is for this reason that the respondent has served a legal notice upon her mother demanding share in the property left behind by her father. Thus, it is not a case where respondent/complainant was in exclusive possession of any portion of the joint property on the basis of any family arrangement. Even the 8 CRM(M) No.403/2021 CrlM No.1353/2021 respondent/complainant does not claim the existence of any family arrangement. In the face of this situation, the question arises whether the petitioner/accused can be stated to have committed an offence of trespass.
14) In order to answer this question, we need to notice the provisions contained in Section 441 of the IPC which defines criminal trespass. It reads as under:
"441. Criminal trespass.--Whoever enters into or upon property in the possession of another with intent to commit an offence or to intimidate, insult or annoy any person in possession of such property, or having lawfully entered into or upon such property, unlawfully remains there with intent thereby to intimidate, insult or annoy any such person, or with intent to commit an offence, is said to commit "criminal trespass".
15) It is evident from the aforesaid provision that unauthorized entry upon a property in possession of another or remaining unlawfully over there after lawful entry constitutes the offence of criminal trespass if such entry or unlawfully remaining there is with intent to commit an offence or to intimidate, insult or annoy any person in possession of the property. So, the gist of offence of criminal trespass is that the property on which a person enters and unlawfully remains there, has to be in the possession of another person. Unless it is shown that the property on which a person has entered or remained over there unlawfully is in possession of another person, the offence of criminal trespass is not made out.
16) Coming to the facts of the instant case, even if the allegations made in the complaint are taken to be true, at their face value, it can safely be stated that the petitioner/accused had entered into unpartitioned 9 CRM(M) No.403/2021 CrlM No.1353/2021 portion of the property which was in possession of the co-sharer. It is a settled law that possession of one co-sharer in an unpartitioned property is deemed to be the possession of another co-sharer. A co-owner has an interest in the whole property or any other parcel of it unless it is shown that the co-owner is in exclusive possession of portion of the joint property under an arrangement consented to by other co-owners, which is not the position in the instant case.
17) The High Court of Punjab and Haryana in the case of Dilbag Singh vs. State of Punjab and another (Crl. Misc. No.M-34854 of 2011 decided on March 13, 2013), has clearly laid down that a co-sharer in the joint land cannot be said to have committed an offence of criminal trespass as all co-sharers are deemed to be in possession of every inch of joint property. Similarly, Delhi High Court in the case of Bhupendra Singh Verma vs. State (NCT of Delhi) and another, (2019) 3 JCC 2027, in a dispute between father and his son pertaining to joint property, has held that criminal proceedings cannot be set into motion in relation to family disputes when there is nothing on record to show that the complainant was in exclusive possession of any particular portion of the property under a family arrangement.
18) Again, the Supreme Court has, in the case of Rajinder Singh Katoch vs. Chandigarh Admn. And others, (2007) 10 SCC 69, observed that right of a co-sharer to enjoy the joint family property is a civil right. Such a right, if denied by the other co-sharers for one reason or the other, must be enforced by taking recourse to the remedies 10 CRM(M) No.403/2021 CrlM No.1353/2021 available under the civil laws. The Court went on to observe that criminal proceedings cannot be taken recourse to for enforcing such a civil right.
19) The learned Senior counsel appearing for the respondent has vehemently argued that at the time of taking cognizance and issuing process against the accused, the Magistrate is only to find out whether a prima facie case is made out for summoning the accused person and he is not required to meticulously examine the material or evidence in support of the complaint. It has been contended that in the instant case, there is material on record to suggest that offence of criminal trespass has been made out against the petitioner and, as such, no fault can be found with the impugned order passed by the learned Magistrate. In this regard, learned counsel has placed reliance on the judgments of the Supreme Court in the case of Helios and Matheson Information Technology and others vs. Rajeev Sawhney and another, (2012) 1 SCC 699, and Kamal Shivaji Poarnekar vs. State of Maharashtra and others, (2019) 14 SCC 350.
20) There can be no quarrel with the proposition propounded by the learned Senior counsel appearing for the respondent that at the time of issuance of process against an accused the Magistrate has only to satisfy himself as to whether any prima facie case is made out against the accused but then in the instant case the material on record clearly suggests that the dispute between the parties is purely of civil nature and the offence of criminal trespass against the petitioner is not made out because the petitioner has entered into the rooms of respondent which 11 CRM(M) No.403/2021 CrlM No.1353/2021 happens to be the joint property of the parties. The Magistrate could not have shut his eyes to all these facts which are supported by the material on record and issue process against the petitioner/accused.
21) The Courts have time and again discouraged the tendency to settle matters of purely civil nature by setting into motion criminal proceedings. In this regard, it would be apt to quote the following observations of the Supreme Court in the case of Mohammed Ibrahim and others v. State of Bihar and another, (2009) 8 SCC 751:
"This Court has time and again drawn attention to the growing tendency of complainants attempting to give the cloak of a criminal offence to matters which are essentially and purely civil in nature, obviously either to apply pressure on the accused, or out of enmity towards the accused, or to subject the accused to harassment. Criminal courts should ensure that proceedings before it are not used for settling scores or to pressurise parties to settle civil disputes. But at the same, it should be noted that several disputes of a civil nature may also contain the ingredients of criminal offences and if so, will have to be tried as criminal offences, even if they also amount to civil disputes."
22) Again, in Randheer Singh v. The State of UP and others, (2021) 4 RCR (Criminal) 496, the Supreme Court has held that the criminal proceedings should not be permitted to generate into weapons of harassment.
23) In view of the foregoing discussion, it is clear that the instant case is a classic example of respondent/complainant trying to settle a purely civil dispute relating to partition of joint property by way of criminal proceedings. Besides this, the offence alleged in the complaint is not made out even if the allegations made in the complaint and the material 12 CRM(M) No.403/2021 CrlM No.1353/2021 attached thereto are taken at their face value. Thus, it is a fit case where this Court should exercise its powers under Section 482 of Cr. P. C to prevent the abuse of process of law and to secure the ends of justice.
24) Accordingly, the petition is allowed and the impugned complaint and the proceedings emanating there from are quashed.
25) Copy of the order be sent to the learned Magistrate for information.
(SANJAY DHAR) JUDGE Srinagar, 20.04.2022 "Bhat Altaf, PS"
Whether the order is speaking: Yes/No
Whether the order is reportable: Yes/No