In the High Court of Punjab and Haryana at Chandigarh
Crl. Misc. No. M- 1480 of 2007(O&M)
Date of Decision:February 20, 2009
Nirmal Singh and others
---Petitioners
versus
Gurdip Singh
---Respondent
Coram: HON'BLE MRS. JUSTICE SABINA
***
Present: Mr. R.D.Bawa,Advocate and
Ms. Ratna Shree, Advocate,
for the petitioners
Mr.K.S.Kahlon, Advocate,
for the respondent.
***
SABINA, J.
Crl. Misc. No. 9275 of 2009
Application is allowed.
Rejoinder to the written reply filed on before of respondent is
taken on record.
Crl. Misc. No. 1480 of 2007
Petitioners have filed this petition seeking quashing of
complaint titled as “Gurdip Singh vs. Kashmir Singh and others” dated
13.12.2005 (Annexure P-6) and all consequential proceedings thereto
including summoning order dated 11.9.2006 under Sections 506, 435 and
445 of the Indian Penal Code (hereinafter referred to as “IPC’).
The case of the complainant as mentioned in the complaint
(Annexure P-6) in brief, is that in the property in dispute measuring 6
Crl. Misc. No. M- 1480 of 2007(O&M) -2-
kanals 16 marlas bearing Khasra No. 14/4 khasra Girdawari entry was
changed in the name of Government High School Pakharpura and the
Central government from the name of the complaint-Gurdip Singh and it
was duly corrected by the Assistant Grade IInd Class, Amritsar on 2.8.1984.
Gram Panchayat filed a complaint against the complainant and the same was
dismissed by the Judicial Magistrate Ist Class, Amritsar on 30.12.2004.
During this period, khasra girdawari entries were changed from the name of
complainant to the name of Gram Panchayat. Complainant filed an
application for correction of the same before the Assistant Collector IInd
Grade, Majitha and the same was decided against complainant. Thereafter
the case was remanded by the Collector to Assistant Collector IInd Grade,
Majitha and the same had not been decided so far.
On 9.12.2005, accused came to the spot where the complainant
was irrigating his wheat crop. Nirmal Singh son of Moola Singh armed
with kirpan, Nirmal Singh son of Karnail Singh armed with dang, Gurdip
Singh armed with dang, Harjas Singh armed with dang came to the spot and
threatened the complainant to leave the land, in question. Kashmir Singh
and M.S.Kaler caught hold of the complainant from his long hairs and told
the other accused to tie his hands with turban and threatened to kill him in
case he refused to vacate the land, in question. They took signatures of the
complainant on some blank papers. Accused has dug a pit to install a water
tanki and had destroyed the standing crop of the complainant.
Complainant in order to prove his case appeared in the witness
box before the trial court and examined CW-1 Dhanwant Singh, CW-2
Satnam Singh, CW3-Bashir Singh and CW-4, Tarsem Masih. Judicial
Crl. Misc. No. M- 1480 of 2007(O&M) -3-
Magistrate Ist Class, Amritsar, vide its order dated 11.9.2006 held that there
were no sufficient grounds to presume that the accused had committed the
offence of destroying wheat crop of the complainant after forming an
unlawful assembly and summoned them under Section 506,
435/445/148/149 IPC. Hence, the present revision Petition.
Learned counsel for the petitioners has submitted that the Gram
Panchayat was in possession of the land in question. Civil litigation was
also pending between the parties wherein it was found that the Gram
Panchayat was in possession of the suit property and not the complainant-
respondent. Hence, the criminal proceedings were nothing but abuse of
process of court and were liable to be set aside.
Learned counsel for the respondent has submitted that in fact,
the possession was depicted of petitioners in papers only whereas in reality,
the actual possession at the spot has remained with the respondent.
Annexure P-1 is the copy of the amended plaint filed by
respondent in a suit seeking declaration that he was in possession of the
land measuring 6 kanals 16 marlas. Annexure P-5 is the order passed in
Criminal Misc. application No. 29 of 2003 under Order 39 Rule 2-A read
with Section 151 of Civil Procedure Code. A perusal of the said order
reveals that the respondent-Gurdip Singh claimed himself to be a tenant
under Union of India. He filed a suit and his application under Order 39
Rules 1 and 2 Civil Procedure Code was dismissed on 29.11.2002.
However, in appeal, parties were directed to maintain status quo vide order
dated 23.12.2002. An application under Order 30 rule 2-A was filed that
despite the stay order, petitioners had collected bricks and gravel and thus,
Crl. Misc. No. M- 1480 of 2007(O&M) -4-
had disobeyed the order of the court. While deciding issued No. 1 it was
held that there was documentary evidence to hold that the application of the
applicant was mala fide and there was no breach of order dated 23.12.2003
and the same was got by respondent-Gurdip Singh by misrepresenting the
true facts. It was noticed that vide rapat roznamcha wakaiti delivery of
possession of Khasra No. 16/4 had already been given to the Gram
Panchayat in the said case and hence, there was no occasion for the Gram
Panchayat to commit breach of order of status quo, rather respondent-
Gurdip Singh had obtained order of status quo by misrepresentation and
misstating the facts.
Annexure P-2 is the rapat roznamcha. As per the same
warrants of possession of delivery issued by the court of Collector regarding
ejectment case filed by the Gram Panchayat, Pakharpura was entered in the
name of the gram Panchayat.
In these circumstances, since the possession had already been
delivered to the Gram Panchayat before the alleged date of occurrence i.e.
on 9.12.2005, the present criminal proceedings are nothing but abuse of
process of Court. As per the photographs, a water tanki has also been
constructed by the Gram Panchayat, Pakharpura.
Accordingly, this petition is allowed. Complaint titled as
“Gurdip Singh vs. Kashmir Singh and others” dated 13.12.2005 (Annexure
P-6) and summoning order dated 11.9.2006 under Sections 506, 435 and
445 IPC(Annexure P-7) and consequent proceedings thereto are quashed .
(SABINA)
JUDGE
February 20, 2009
PARAMJIT
