Jammu & Kashmir High Court
Ghulam Mohd Aged 84 Years vs Union Territory Of Jammu And Kashmir ... on 31 October, 2024
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
CRM(M) No. 423/2022 Reserved on: 16.10.2024
Pronounced on: 31.10.2024
1. Ghulam Mohd aged 84 years
S/O Late Punnu
2. Naziran Bibi aged 72 years
W/O Ghulam Mohd.
3. Mukhtiyar Ahmed @ Papi aged 50 years
S/O Ghulam Mohd.
4. Shabia Bibi aged 45 years
W/O Mukhtiyar Ahmed @ Papi
5. Mumtaz Khan alias Kaku aged 47 years
S/O Ghulam Mohd.
6. Farida Bibi aged 44 years
W/O Mumtaz Khan @ Kaku
7. Raj Mohd. @ Raju aged 45 years
S/O Ghulam Mohd.
8. Shera Bibi aged 42 years
W/O Raj Mohd @ Raju
All residents of Village Kot
Tehsil Bhalwal District Jammu.
....Petitioner(s)
Through: Mr. G.S. Thakur, Advocate.
Vs
1. Union Territory of Jammu and Kashmir through
Station House Officer, Police Station Gharota, Jammu.
2. Milkhi Ram S/O Late Ram Chand
R/O Village Kot Tehsil Bhalwal District Jammu.
..... Respondent(s)
Through: Mr. Pawan Dev Singh, Dy. AG for R-1
Mr. P.S. Pawar, Advocate for R-2.
2 CRM(M) No. 423/2022
CORAM: HON'BLE MR. JUSTICE M A CHOWDHARY, JUDGE
JUDGMENT
01. Through the medium of the present petition under Section 482 of the Code of Criminal Procedure, the petitioners seek quashment of Order dated 30.04.2022 passed in file No. 47/App. Misc titled "Milkhi Ram Vs. Ghulam Hussain and Others" passed by the Court of learned Special Mobile Magistrate (Passenger Tax and Shops Establishments), Jammu whereby, the application of the respondent No. 2- Milkhi Ram has been allowed directing the respondent No. 1-SHO Police Station, Gharota Jammu, to lodge FIR against the petitioners under Sections 380/336/447/427/504/506/34 IPC. The petitioners also seek quashment of the consequent FIR No. 44/2022 registered by the respondent No. 1, at Police Station Gharota.
02. With a view to understand the controversy in its right perspective, it would be appropriate to give in detail the submissions of the petitioners.
SUBMISSION OF THE PETITIONERS:
03. It is submitted by the petitioners that petitioner No. 1 is a retired army personnel who after rendering his valuable service to the nation retired from the Indian Army in the 3 CRM(M) No. 423/2022 year 1975 and the petitioner No. 2 is the wife of the petitioner No. 1 and others are sons and daughters-in-law residing at village Kot having their landed property which was inadvertently declared as 'evacuee property' but after long drawn litigation it was restored back to the petitioners, as such, the petitioners have been enjoying the peaceful cultivating possession over the land; that adjacent to the proprietary land there is land which is recorded as 'Shamilat Deh' falling under khasra No. 2103 measuring 1 kanals 11 marlas and the nature of the land is Banjar Kadeem, recorded in the possession of Late father of the petitioner No. 1 and one Ghulam Hassan.
03.1 Petitioners next pleaded that in the earlier round of litigation, the respondent No. 2 was also party wherein the possession of the land was restored to the petitioners pursuant to the jugement of the Hon'ble Division Bench in LPA No. 935/1998; that since the petitioners are enjoying the possession over the shamilat deh land which is owned by the petitioners being the successors of late Riju and Punnu and is adjacent to the proprietary land which was restored from the unauthorized possession of the respondent No. 2 and his brothers, thus having enmity with the petitioners, he always made an attempt to implicate the petitioners in the criminal cases and the uncalled for litigation to take revenge.
4 CRM(M) No. 423/202203.2 Petitioners then stated that the respondent No. 2 filed a civil suit against the petitioners alleging that he is in possession of the land falling under khasra No. 2103, which is pending disposal before the court of learned 2nd Munsiff, Jammu in which the interim direction has been passed by the Hon'ble Court.
03.3 That the respondent No. 2 is not the land holder in village Kot, therefore, he is not entitled to have share in 'shamilat deh' land, the land is under the possession of the petitioners; that the respondent No. 2 filed a criminal complaint before the Chief Judicial Magistrate, Jammu in terms of Section 156 (3) CrPC seeking directions to the respondent No. 1 for registration of FIR alleging that the wheat crop has been removed by the respondents. It is apt to mention here that the nature of the land is Banjar Kadeem, therefore there is no question of sowing any crop, moreover the said land is in the possession of the petitioners and the present FIR is an outcome of vengeance and in order to harass the petitioners.
GROUNDS TAKEN IN THE PETITION:
04. The petitioners have challenged the impugned order and FIR on the grounds that facts do not constitute any offence, punishable under sections 380/336/323/447/427/506/34 IPC; that the order impugned and FIR are otherwise not 5 CRM(M) No. 423/2022 sustainable in the eyes of law as the police submitted the report on 19.04.2022 apprising the court of the fact that no quarrel took place on spot and the learned court below after receiving the report from the police in order to know the veracity of the case directed the police to submit the report and after receiving the report the learned Magistrate committed an error in directing the police to register the FIR against the settled law by the Hon'ble Supreme Court in various judgments that once the court in order to verify the allegations in the complaint deferred the directions for registration of the FIR and after receiving the report, the court cannot direct for registration of the FIR; that the order impugned and the FIR are otherwise liable to be quashed in view of the fact that as per the observation of the court below where the verification report was submitted indicating the fact that there was no dispute at all and subsequently there was no occasion for the parties to re- agitate the matter, on the same set of allegations, as such, there was no evidence at all before the court below, so as to direct the police for registration of the FIR. 04.1 It was further alleged that the order impugned and the FIR are otherwise not sustainable in the eyes of law which are actuated with malafide and an outcome of vengeance, in order to harass the petitioners and to take the revenge of the earlier round of litigation, in which the directions were 6 CRM(M) No. 423/2022 issued for restoration of the possession of the land owned by the petitioners, illegally occupied by the respondent No. 2, more so the impugned FIR 'prima facie' does not constitute the offences punishable under sections 380/336/323/447/427/506/34 IPC.
05. Pursuant to directions to file their reply, the respondent Nos. 1 and 2 filed their objections separately. OBJECTIONS FILED BY THE RESPONDENT No.1
06. That on 01.05.2022, order passed by Special Mobile Magistrate (Passenger Tax & Shops Establishments), Jammu, along with application was received at the Police Station for registration of FIR with allegations that on 19.04.2022 at about 11.00 AM to 1200 Noon, in broad day light, the accused committed criminal trespass entered into the land owned and possessed by complainant bearing Khasra No-2103 measuring 1 Kanal 11 Marlas situated at Village Kote, Tehsil Bhalwal District Jammu, unauthorizedly and pelted stones over the complainant and his labourers who were harvesting the wheat crop of the complainant from the said land; That the accused not only tried to prevent the complainant and labourers from harvesting their crop but even abused them, extended life threats to complainant who sustained injuries by the stone pelted by accused, that the complainant who is an old aged 7 CRM(M) No. 423/2022 and Law-abiding citizen then left for police station Gharota, Jammu for lodging a report against the accused person. By the time the complainant came back along with police on his land, the accused persons had fled away from the spot and with them had taken away the harvested wheat crop with them alongwith cutting tools (draties 4 in numbers) of the complainant.
06.1 Pursuant to the directions of the learned Magistrate, case was registered vide FIR No. 44/2022 at Police Station Gharota, for the commission of offences punishable under sections 380/336/447/427/504/506 read with 34 IPC. That during the course of investigation. IO visited the spot & prepared the site plan on the instance of complainant & recorded the statement of complainant Milkhi Ram and other eye witnesses namely, Kartar Chand Gandhi, Tarsem Lal U/S 161 Cr.PC. Later statements were also recorded of sarpanch Kot namely Kala Khan and one Mohd Sadiq. 06.2 It was also stated that during course of investigation Tehsildar Bhalwal was requested vide letter Nos 1318/5- 1/PSG dated 04.07.2022, 1352/5-1/PSG dated 15.07.2022, 1402/5-1/PSG dated 17.07.2022 for demarcation of land in question, with a request to provide revenue record/report of the land bearing Khasra no. 2103 min measuring 1 Kanal 11 Marlas situated at village Kot, but till date demarcation of said Land was not conducted 8 CRM(M) No. 423/2022 by Revenue Department and Investigation of said case is underway.
OBJECTIONS FILED BY THE RESPONDENT No.2.
07. Respondent No. 2, who is complainant asserted that under the garb of above titled petition filed by the petitioners impugning the FIR No. 44/2022 registered under section 380/336/323/447/427/504/506/34 IPC against the petitioners in police station Gharota, Jammu, the petitioners have not only managed to stop the investigation in the said FIR against them but have been making forcible ingress into the complainant's property. So the petitioners who have committed crime referred in the impugned FIR are not entitled to any protection as has been sought by the petitioners by invoking the inherent powers of this Hon'ble Court under the provisions of section 482 Cr. P.C. Thus, the petition deserves to be dismissed.
07.1 On the facts, it is submitted that fact of the matter is that the land bearing Khasra no. 2103 measuring 01 Kanal 11 Marlas situated at Village Kot, Tehsil Bhalwal, District Jammu is the ancestral property of the answering respondent as is recorded in the revenue record more particularly Khasra girdawari of Rabi and Kharif 1971 wherein the name of the grandfather of the plaintiff namely Sunder S/O Ganju Tarkhan is recorded as owner in 9 CRM(M) No. 423/2022 possession; That after the death of Sunder Tarkhan ( the grandfather of the answering respondent) the mutation of inheritance was attested in favour of his father namely Ram Chand vide mutation no. 3060, that similarly, after the death of the father of the answering respondent namely Ram Chand, mutation of inheritance was attested in favour of the answering respondent and other family members vide mutation no. 4360, as has been reflected in the jamabandi of 1998-99 itself; That land bearing Khasra No. 2103 is a 'Shamilat Deh' land belonging to the answering respondent as from last 03 generations it is the family of the answering respondent who is in continuous possession of the suit land both in record and on spot till date as is evident from copy of Khasra Girdawari of Kharif 2015 and Rabi 2016; That the suit land is in occupation, user and possession of the answering respondent on spot and so far as the record is concerned the latest Khasra girdawari of Kharif 2021 of the suit land substantiates the factum of spot possession of the answering respondent. 07.2 It is further alleged that the petitioners are absolutely strangers to the said land both in terms of record as well as on spot; That in order to elucidate the ill will and criminal intent of the petitioners to grab the suit land, it is submitted that the land bearing Khasra no. 2100 (6 Kanal 7 Marlas), 2101 min (04 Kanal 16 Marlas) and the land 10 CRM(M) No. 423/2022 bearing Khasra no. 2103 (01 Kanal 11 Marlas) situated at village Kot Tehsil the then Jammu at present Tehsil Bhalwal was in possession of the forefather of the answering respondent i.e. Sunder S/O Ganju (Grand-father of the answering respondent), thereafter it fell in possession of the father of the answering respondent herein i.e. Ram Chand S/O Sunder.
07.3 It is next submitted that the petitioner No. 1 by virtue of an application u/s 8 of the J&K Evacuees (Administration of Properties Act) sought the restoration of land bearing Khasra no. 2100 and 2101 only. Vide its order dated 25-03- 1977, the Custodian Evacuees Property, Jammu allotted the land bearing Khasra no. 2100 and 2101 supra to the petitioner No. 1 with the clarification that the present occupant i.e. Ram Chand (Father of the answering respondent) shall be provided alternative land elsewhere; that land bearing Khasra no. 1937 was allotted to the answering respondent herein at village Assarwan, Tehsil Bhalwal, District Jammu; That so far as the land bearing khasra no. 2103 measuring 01 kanal 11 marlas situated at Kot Tehsil Bhalwal District Jammu is concerned, all along remained in cultivative possession of the answering respondent as had never been the part of the restoration / allotment sought by the petitioner No. 1 herein. Nor was claimed by him and even never was allotted to the 11 CRM(M) No. 423/2022 petitioner No. 1, resultantly the Khasra Girdawari in acknowledgement to the said fact stands testimony because the possession of the said land was not changed resultantly its Khasra Girdawari is continuing in the name of the Grandfather of the respondent herein namely Sunder S/O Ganju;
07.4 Respondent No. 2 also claimed that the spot possession of the land is evident from the photographs revealing the respondent harvesting the crop from the said land bearing Khasra no. 2103 (01 Kanal 11 Marlas). It is further submitted that the answering respondent is an old aged person whereas, his only son is a Govt. employee, so cannot afford to use physical force for protecting the suit property so always takes legal recourse, as was done by virtue of the suit for injunction in the court of Learned 2nd Additional Munsiff, Jammu for preservation and protection of his possession over the said land at the hands of the petitioners herein; that the said civil court vide its order dated 24-02-2022 restrained the petitioners from causing any sort of interference into the possession of the answering respondent over the said land.
08. Heard learned counsel for the parties and perused the record.
12 CRM(M) No. 423/2022
09. Since there is already a civil dispute between the petitioners and respondent No. 2 with regard to the land in question, which is alleged to have been trespassed upon by the petitioners herein. It is an admitted fact that the land comprising of survey numbers 2100 and 2101 situated at village Kot Tehsil and District Jammu was initially declared as an evacuees property on account of alleged migration of the predecessor-in-interest of the petitioners in view of the disturbed conditions in the year 1947 at the time of partition of the country and that the land comprising of these survey numbers, on an application moved by one of the petitioner, was restored in his name being successor-in- interest of his predecessor who was owner of the land. The land had been restored to him by the Custodian of the Evacuees Property department.
10. The order passed by the Custodian had been challenged upto this Court and had been maintained. Now, the question is with regard to a piece of land measuring 1 kanal 11 marlas, comprising of survey No. 2103 which is admittedly 'shamilat'.
11. The contention of the learned counsel for the petitioners is that the interest in the land, which is 'shamilat', is of the villagers and not of a person who does not own the land in the village. It is the settled legal position that only a resident of village, who owns some land in the village has a 13 CRM(M) No. 423/2022 right, on pro-rata basis, over the 'shamilat' land and not a stranger who does not have any piece of land in the village. The private respondent has not been able to show as to what is his land in the village so that he may have some right over the admitted 'shamilat land' in question, except his entry in revenue record, based perhaps on his entry over the land which was earlier allotted to his predecessors but later restored to the petitioner No. 1, Ghulam Mohd., comprising of Khasra No. 2100 (6 kanals 7 marlas) and 2101 (4 kanals 16 marlas) of village Kot of Tehsil Bhalwal.
12. The next aspect of the case required to be gone into by this Court is with regard to the fact that the police had visited the place of alleged occurrence on 19.04.2022 and on being apprised of the fact had submitted a report that no quarrel as alleged, had taken place on spot and the learned Magistrate in order to know the veracity of the case directed the police to submit the report and after receiving the report, the learned Magistrate had committed an error in directing the police to register the FIR.
13. It is the settled legal position as held by the Apex Court in various judgments that once the Magistrate in order to verify the allegations in the complaint, deferred the directions for registration of the FIR and after receiving the report, the court cannot direct registration of the FIR, after a fact finding report. The issue in hand is no longer res 14 CRM(M) No. 423/2022 integra. The Apex Court in Devarapalli Lakshminarayana Reddy and Ors Vs. V. Narayana Reddy and Ors reported in (1976) 3 SCC 252 held in para 17 has held as under:
"17.......That is to say in the case of a complaint regarding the commission of a cognizance offence, the power under Section 156(3) can be invoked by the Magistrate before he takes cognizance of the offence under Section 190(1)(a). But if he once takes cognizance and embarks upon the procedure embodied in Chapter XV, he is not competent to switch back to the pre-cognizance stage and avail of Section 156(3).............."
14. The Apex Court in "Madhao and Anr Vs. State of Maharashtra and anr" reported in AIR Online 2013 SC 404 in para 16 while reiterating the aforestated legal principle, has held as under:
"16. Where a Magistrate orders investigation by the police before taking cognizance under Section 156(3) of the Code and receives the report thereupon he can act on the report and discharge the accused or straightway issue process against the accused or apply his mind to the complaint filed before him and take action under Section 190 of the Code."
15. Having regard to the aforestated factual background and the law applicable on the subject of this petition, the impugned order passed by the learned Magistrate and the impugned FIR registered consequent thereto, in the considered opinion of this Court, is the abuse of the process of law, at the hands of the respondent No. 2 as complainant. The petitioners, two of whom are stated to be of the age of 80 years and 72 years, have thus made out a 15 CRM(M) No. 423/2022 case for invoking inherent jurisdiction vested in it under section 482 CrPC.
16. In view of what has been stated above and also taking into account the law laid down by the Hon'ble Apex Court, the present petition is allowed and the impugned order dated 30.04.2022, being passed without jurisdiction amounting to abuse of the legal process, and the consequent registration of FIR No. 44/2022 at Police Station, Gharota for the commission of offences punishable under sections 380/336/447/427/504/506 read with 34 IPC, are hereby quashed.
17. The petition alongwith pending application(s) is disposed of accordingly.
18. (M A CHOWDHARY) JUDGE JAMMU 31.10.2024 NARESH/SECY Whether the order is speaking: Yes Whether the order is reportable: Yes