Jammu & Kashmir High Court
Ajaz Ahmed And Ors. vs Ishtiaq Ahmed And Ors. on 22 September, 2017
Author: Sanjay Kumar Gupta
Bench: Sanjay Kumar Gupta
HIGH COURT OF JAMMU AND KASHMIR
AT JAMMU
561-A Cr.P.C. No.132/2014 & MP No. 155/2014
Date of order:-22.09.2017
Ajaz Ahmed and ors. vs. Ishtiaq Ahmed and ors.
Coram:
Hon'ble Mr. Justice Sanjay Kumar Gupta
Appearing counsel:
For the Petitioner(s) : Mr. M. A. Bhat, Advocate.
For the Respondents(s) : Mrs. Seema Sheikhar, Sr. AAG.
i/ Whether to be reported in : Yes/No
Press/Media
ii/ Whether to be reported in : Yes/No
Digest/Journal
1. In the instant petition, the petitioners seeks quashment of FIR bearing No. 54/2013 dated 08th May, 2013 registered at Police Station, Bhaderwah, District Doda for commission of offences under sections 447/379 and 34 RPC being a total misuse/abuse of process of law.
2. The facts giving rise to the filing of the instant petition briefly stated are that the petitioner No.1 is the real brother of respondent No. 1 and petitioner no. 2 is the wife and the petitioner No. 3 and is the Bhabhi of the petitioner No.1. By virtue of Partition Deed (Bandnama) executed between the petitioner No.1 and other family members including mother on 1st April, 1999 after the death of the father of petitioner No.1, all the property (movable as well as immovable) stands properly partitioned between the family members in accordance with the shares, as contained and agreed in the Partition Deed (Bandnama). All the family members are signatories to the Bandnama besides many respectable persons of the locality.
561-A Cr.P.C. No.132/2014 Page 1 of 73. By virtue of the aforesaid Bandnama, 7 Kanals 10 Marlas of land comprising of Khasra No. 579/196 @ 2 Kanals and 2 Marlas and Khasra No. 198 (5 Kanals 8 Marlas) situated at Bhalla Tehsil Bhaderwah fell in the share of Mst. Samina Begum-widow of Ghulam Mustafa, the mother, the petitioner No. 1 and the respondent No. 1, which she retained as "Jeepak." Jeepak is a property, which is retained by the parents as a source of their livelihood and the parents are authorized to bestow the same to the person or persons, who looked after them during their lifetime and in the old age. All shares were properly demarcated and given in the possession of respective share holders and continued to be as such till date, however, the land measuring 7 Kanals 10 Marlas, which was the share of the mother of the petitioner No. 1 as Jeepak was being cultivated and looked after by the petitioner No. 1 only because the mother lived with him only and he was the person, who was looking after the mother in her old age. As the mother grew older and older and was unable to move frequently, the respondent No. 1 alongwith his other family members started interfering in the peaceful possession of the mother over the land mentioned in paragraphs (supra) ostensibly in greed and lust to encroach upon the share of the mother. The mother-Mst. Samina Begum executed a Will Deed (Annexure-C) in favour of petitioner No. 1 and duly registered the same before the Competent Court of law, i.e., Sub-Registrar, Bhaderwah on 22nd March, 2013 whereunder she bequeathed the land measuring 7 Kanals and 10 Marlas, which was her share in the property in favour of the petitioner No. 1 and by virtue of that Will, she declared petitioner No. 1 as the absolute owner of the said property after her death.
4. Since respondent No. 1 and his other family members have been trying to interfere and forcibly occupy the land falling in the share of Mst. Samina Begum-the mother, said Samina Begum along with petitioner No. 1 filed a civil suit before the Court of learned District and Sessions Judge, Bhaderwah seeking a declaration to the effect that the land comprising 561-A Cr.P.C. No.132/2014 Page 2 of 7 Khasra No. 579/196 measuring 2 Kanals and 2 Marlas out of the total land measuring 4 Kanals and 5 Marlas and the land bearing Khasra No. 198 measuring 5 Kanals and 8 Marlas situated at village Bhalla, Tehsil Bhaderwah is in possession and occupation of the plaintiffs as owners by virtue of Partition Deed dated 01st April, 1999 and the defendants have no right or title or concern with this land. With further prayer that the defendant Nos. 1 to 4 be permanently restrained from interfering in the suit land or raising any construction over the same, the said case was transferred to the Court of learned Sub-Judge, Bhaderwah for trial, who had been pleased to direct the parties to maintain status-quo with respect to the suit property, as it existed on the date of order (Annexure-D), i.e., the order dated 28th March, 2013.
5. The Suit (Annexure-E) is pending trial before the Court of learned Sub-
Judge, Bhaderwah, in which the respondent No. 1 has filed his written Statement (Annexure-F) besides Abdul Hamid Zargar and Basharat Ali Zargar, i.e., the two real brothers have also filed their written statement though respondent No. 1 in his written statement has denied the claim of the plaintiffs in the suit yet the other two brothers have admitted the claim. The order of the learned Sub-Judge was duly served to the respondent No. 1, but he has shown no respect to the order and even after that the respondent No. 4 time and again causing unwarranted and unnecessarily interference with the property of the petitioner. Thereafter, the petitioner No. 1 was forced to file an application for implementation of the status-quo through police and despite that for the reasons best known to respondent No. 3 has not taken any action against the respondent No. 1, who continues to violate and flout the directions of the Competent Court.
6. After filing of the suit and issuance of the interim directions, the respondent No. 1 in order to counter the petitioner No. 1 and the Suit filed by him along with the mother, fabricated and concocted a false and frivolous complaint against the petitioners herein with a sole aim to wreck vengeance 561-A Cr.P.C. No.132/2014 Page 3 of 7 and to counterblast the case of the petitioner. He filed the complaint against the petitioners herein for commission of offences under Sections 447/506/379/34 and 504 RPC on the plea that the complainant and the non-complainants are the co-sharers and the land stands partitioned between them and both the parties are in possession of their respective shares. According to the complainant, he is having share in Khasra No. 198/199 also and on 05th May, 2013, the non-complainants (petitioners herein) with the criminal and common intention entered into the property in possession of the complainant and after cutting grass committed theft of the same, which he valued at 8/9 thousand. He also alleged that the non- complainants are trying to dispose him forcible and he further alleged that the non-complainants are extending life threats to the complainant and his family day in and day out. The learned CJM, Doda forwarded the complaint to SHO, Bhaderwah for necessary action under Section 156(3) Cr. P.C. and in turn, respondent No. 3 rushed to register a case under Sections 447/34/379 RPC on the same date and commenced the investigation, which is still going on.
7. The mother of the petitioner No. 1 has died on 15th January, 2014 and the petitioner No. 1 has become the owner of the land belonging to her mother, i.e., 7 Kanal and 10 Marlas (2 Kanal and 2 Marlas in Khasra No. 579/196 and 5 Kanal and 8 Marlas in Khasra No. 198) by virtue of Will Deed executed by his mother in his favour. The petitioner No. 1 has been enjoying the peaceful and cultivating possession of the land, which came under the share of his mother during her life time under the permission of his mother and also after her death by virtue of Will Deed executed by his mother in his favor, which has been transferred by his mother to him through Will Deed till date.
8. The petitioners herein are aggrieved of the registration of the FIR against them for commission of the above mentioned offences and seek to 561-A Cr.P.C. No.132/2014 Page 4 of 7 challenge the same through the medium of the instant petition, inter alia, on the following grounds:-
(a) Just balance between fundamental rights of the citizen under Articles 19 and 21 of the Constitution and exclusive power of the Court to take cognizance has to be struck by this Hon'ble Court.
The power of the Court to take cognizance of any complaint on whatever allegations does not warrant subjecting a citizen to the jurisdiction of police particularly when the complaint is only aimed at wreaking vengeance against the accused. Any case, or FIR with such allegations is fit case for exercise of jurisdiction under Section 561-A Cr.P.C of the State or Article 226 of Constitution of India read with Section 103 of Constitution of Jammu and Kashmir. On this count, the petition, as prayed for, deserves to be allowed and the impugned FIR and the proceedings there under are liable to be quashed.
(b) That the case registered against the petitioners is based on totally false, frivolous and concocted grounds. The case/complaint is attended with malice and vengeance. The continuance of the proceedings and investigation in the FIR is nothing but sheer abuse of process of law and, thus, the FIR is liable to be quashed.
9. I have heard learned counsel for the petitioners and learned Sr. AAG for State. I have also gone through the law on the subject.
10. From the perusal of FIR bearing No.54/2013 dated 08th May, 2013 registered at Police Station, Bhaderwah, District Doda under sections 447/379 and 34 RPC, it reveals that no essential ingredients of Section 447 and 379 RPC has been made out.
11. The ingredients of Section 447 are firstly entering into the property in possession of another and secondly, such entrance is with intent to commit an offence or to intimidate, insult or annoy any person in possession of such property, thirdly, making lawful entry upon such property, but the 561-A Cr.P.C. No.132/2014 Page 5 of 7 remaining there unlawfully with intent thereby to intimidate, insult or annoy person or with intent to commit an offence. So, exclusive possession of complainant of land is sine qua non for launching proceeding of trespass u/s 447 RPC.
12. A civil suit filed by petitioner no.1 herein against the respondent no.1 and other defendants with regard to declaration of possession of disputed land are pending before Sub Judge, Baderwah, wherein court has granted status quo. In that suit even written statements have been filed by defendants including complainant in FIR. In written statement defendants are claiming that they are in possession. Further, mother of petitioner Ajaz Ahmed namely Samina Begum has already executed a WILL deed, thereby bequeathing land measuring 2 k 2 m from Kh. No 579/196 total measuring 4k 5m and 5k 8m from kh.no 198 situated at Bhalla in favour of petitioner no.1 herein. This WILL deed has duly been registered before Sub Registrar Bhaderwah on 22.3.2013.
13. In this way, both the parties are claiming their possession over land in question. The possession is a fact which has to be decided during trial in civil suit. There may be a question of demarcation of disputed land. When question of possession of disputed land is already pending before civil court, than criminal proceeding launched by any party of criminal trespass claiming to exclusively possession of land would not arise. Complainant during the subsistence of civil suit has lodged FIR bearing No. 54/2013 dated 08th May, 2013 registered at Police Station, Bhaderwah, District Doda for commission of offences under sections 447/379 and 34 RPC.
14. In view of above factual matrix the vague and omnibus allegations of criminal trespass and theft under sections 447/379 and 34 RPC are woeful found to be absent.
15. In Inder Mohan Gowswami v State of Uttaranchal reported in 2007 (12) SCC page 1 it is held that civil dispute where veracity of facts can be ascertained by civil court of competent jurisdiction which is already 561-A Cr.P.C. No.132/2014 Page 6 of 7 seized of matter, initiation of criminal proceeding on the same issue is clearly an abuse of process.
16. In Indian Oil Corporation v. NEPC India Ltd. & Others (2006) 6 SCC 736, it has been held as under:-
"This court again cautioned about a growing tendency in business circles to convert purely civil disputes into criminal cases. The court noticed the prevalent impression that civil law remedies are time consuming and do not adequately protect the interests of lenders/creditors. The court further observed that any effort to settle civil disputes and claims, which do not involve any criminal offence, by applying pressure through criminal prosecution should be deprecated and discouraged."
17. In view of above discussion and law on the point, this petition is allowed.
The FIR bearing No.54/2013 dated 08th May, 2013 registered at Police Station, Bhaderwah, District Doda, for commission of offences under sections 447/379 and 34 RPC is quashed. Copy of this order be sent to concerned Police Station.
( Sanjay Kumar Gupta ) Judge Jammu, 22.09.2017 Ram Krishan 561-A Cr.P.C. No.132/2014 Page 7 of 7