Bombay High Court
Dilip S/O Shayamlalji Katakwar vs State Of Mah., Thr. Pso Tq Mohadi Dist ... on 17 October, 2024
Author: Vinay Joshi
Bench: Vinay Joshi
2024:BHC-NAG:11711-DB
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
CRIMINAL APPLICATION (APL) NO. 831 OF 2019
Dilip s/o. Shayamlalji Katakwar,
Aged about 56 yrs, Occ. Service,
R/o. Mohadi, Tah. Mohadi,
District Bhandara ...... APPLICANT
...V E R S U S...
1. The State of Maharashtra,
Through PSO Mohadi,
Tahsil Mohadi, District Bhandara
2. Shri Ashish s/o. Shripat Tekam,
Aged about 43 yrs, Occ. Talathi
at Tilak Ward, Mohadi,
Mouza Wadegaon,
Tah. Mohadi, District Bhandara .....NON-APPLICANTS
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Mr. Parth L. Sagdeo, Advocate for applicant.
Mr. M.K. Pathan, APP for respondent No.1 /State
Mr. A.G. Hunge, Advocate for respondent No.2.
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CORAM:- VINAY JOSHI & ABHAY J. MANTRI, JJ.
DATE : 17.10.2024
JUDGMENT (Per : Vinay Joshi, J.)
1. Heard finally with consent of learned Counsel for the
parties.
2. By this application, the applicant seek to quash First
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Information Report (FIR) No. 85/2019, registered with respondent
No.1 Police Station, for the offence punishable under Section 188 of
the Indian Penal Code(IPC) and Final Report No. 1/2020 filed
before Civil Judge Junior Division and Judicial Magistrate First
Class, Mohadi
3. On the basis of report dated 12.7.2019, lodged by
Talathi, the crime has been registered against the applicant. It is the
prosecution case that certain piece of agricultural land bearing Gut
No. 227, 228, 231 and 232, situated at Mouza Vadegaon, District
Bhandara is a government property (disputed property). Despite
that, the applicant has filed civil suit raising certain claim in respect
of the disputed property. The learned Civil Judge, in Regular Civil
Suit 175/2010, vide order dated 27.7.2017, by decreeing the suit,
declared the applicants' ownership over the disputed property as
well as directed to correct the revenue record, accordingly. Being
aggrieved by the said decision, the State has filed First Appeal No.
49/2019, wherein interim order has been passed staying the effect,
execution and operation of the impugned decree vide order dated
16.4.2019.
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4. In the wake of said position, the informant alleges that
despite the stay order issued by the First Appellate Court, the
applicant has unlawfully entered into the disputed property on
7.7.2019 and thus caused disobedience to the order passed by a
public servant attracting provisions of Section 188 of the IPC and
therefore, the offence.
5. Apart from the tenability of the registration of crime at
the instance of Talathi, who has apparently not promulgated the
order, it is argued that the contents of FIR does not make out an
offence punishable under Section 188 of the IPC. It is submitted
that there is no order passed by any public authority which could
preclude the applicant from entering into the disputed property.
6. So far as the factual aspect is concerned, there is no
dispute that the trial Court has declared the applicants' ownership
and directed to carry out necessary mutation entries. Undisputedly,
the said order was stayed by the First Appellate Court and in such a
background, applicant has allegedly entered into the disputed land.
Even if it is assumed that the applicant has entered into the disputed
property, the question falls for consideration is whether the act of
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the applicant amounts to violation of the order of a public servant
i.e. order passed by learned District Judge by which execution and
operation of the order of the learned trial Court has been stayed.
Apparently, the trial Court has passed a declaratory decree as well
as directed to correct mutation record. The interim order is in the
nature to stay the effect and execution of the said order. The trial
Court's order is in two parts which is about declaration of ownership
and secondly about effecting mutation entry. Apparently, the
dispute is about declaration as according to the State, entrance into
the disputed property, amounts to violation of public order. We
could not see or the stay order cannot be construed that the
applicant was restrained or precluded from entering into the
disputed property. The effect of stay is only that the declaratory
decree is stayed meaning thereby the applicant cannot stall claim on
the basis of declaration. Since thee is no order restraining the
applicant to enter into the land, we are not inclined to accept the
submission of learned APP that there is breach of order of the public
servant.
Prima facie, essential ingredient to constitute the offence
punishable under Section 188 of the IPC have not been made out.
Therefore, continuation of criminal proceedings amount to abuse of
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process of Court, hence, we pass following order:
i) The application is allowed.
ii) The First Information Report No. 85/2019, registered
with respondent No.1 Police Station, for offence
punishable under Section 188 of the IPC and Final
Report No. 1/2020 filed before Civil Judge Junior
Division and Judicial Magistrate First Class, Mohadi is
hereby quashed and set aside.
(ABHAY J. MANTRI, J.) (VINAY JOSHI, J.)
R. Belkhede,
Personal Assistant
Signed by: Mr. R. S. Belkhede
Designation: PA To Honourable Judge
Date: 18/10/2024 12:22:18
