Jammu & Kashmir High Court

Mohd Rashid Malik And Anr vs State Of J&K And Anr on 27 April, 2023

        HIGH COURT OF JAMMU, KASHMIR AND LADAKH
                        AT JAMMU
                                                  Reserved on 10.04.2023
                                                  Pronounced on:.27.04.2023

                                                  CRMC No. 105/2019(O&M)

     Mohd Rashid Malik and Anr.                      .....Appellant(s)/Petitioner(s)


                          Through: Mr. Navyug Sethi, Advocate
                     vs
     State of J&K and Anr.                                        ..... Respondent(s)


                          Through: Mr. Pawan Dev Singh, Dy.AG

     Coram: HON'BLE MR. JUSTICE RAJNESH OSWAL, JUDGE
                                     JUDGMENT

1. The petitioners have impugned the FIR bearing No. 110/2018 dated

22.04.2018 for commission of offences under sections 447-A RPC and 6/39

Forest Act, registered with Police Station, Bahu Fort, Jammu at the instance

of respondent No. 2.

2. It is stated that the land measuring 74 kanals 15 marlas comprising Survey

Nos. 1567 min, 1576, 1572 and 1569 situated at village Sunjwan, Tehsil

Bahu, is the proprietary land of petitioner No. 1 and the respondent No. 2

under some misconception and wrong notion is claiming the said land to be a

Forest land comprising survey No. 1468, wherein forest compartment No.

6/Chowadi is also located. The petitioners claim to have already sold the

land measuring 31kanals and 19 marlas to one Mukhtyar Ahmed Waza by

way of an agreement to sell and Mukhtyar Ahmed Waza has also purchased

the land from one Baldev Singh and few other persons, total measuring 74

kanals and 15 marlas. When one Mukhtyar Ahmed Waza started raising

construction on the land mentioned above, Estate Officer (Divisional Forest

Officer, Jammu), Forest Division Jammu, on the basis of encroachment

report received from the respondent No. 2, initiated the proceedings under

section 48-A of the Forest Act against the petitioners, thereby issuing a show

cause notice dated 21.05.2018 on the premise that the petitioners are in

unauthorised occupation of the Forest land in compartment No. 6/Chowadi

of village Sunjwan of Bahu Range (survey No. 1468). It was mentioned in

the show cause notice that the illegal construction of 4 pacca houses, five

compound walls over 15 kanals and 15 marlas of Forest land, one water tank,

one pacca structure, one concrete plinth 300 feet have been made over 20

kanals and 3 marlas of the Forest land by breaking, cleaning and altering the

legal status of the Forest land. The petitioners further claim to have replied to

the said show cause notice, stating therein that the petitioners on behalf of

Mushtaq Ahmed Waza are not in illegal possession of land measuring 74

kanals and 15 marlas comprising survey Nos. 1567 min, 1572 and 1569 and

the construction that has been raised as mentioned in the show cause notice,

has not been raised on the Forest land bearing survey No. 1468

(compartment 6/Chowadi). It is further stated that the petitioner, thereafter

filed the writ petition challenging the show cause notice and this Court vide

order dated 06.07.2018 directed the respondents in the writ petition to follow

section 48A (I) of the Jammu and Kashmir Forest Act 1997 and the

petitioner was left free to work out his remedy under section 48-A(2) of the

Forest Act. It is also stated that a civil suit, titled, Mukhtyar Ahmed Waza vs

Mohd. Yousuf and others is pending before the court of learned City Judge,

Jammu in which the Commissioner Secretary, Forest Department is also one

of the defendants and in the said suit, the learned City Judge, Jammu has

made interim order dated 06.06.2016 absolute subject to the condition that

the plaintiff therein will only enjoy the usufruct of his property and will not

change the dimensions thereof and non applicants therein will not cause any

interference in the smooth enjoyment of the suit land. Thereafter on

22.12.2016, the learned City Judge, Jammu with the consent of the Forest

Department directed the Deputy Commissioner, Jammu to constitute a team

of revenue officials for demarcation of the land and the Deputy

Commissioner, Jammu constituted a committee for demarcation of the land

comprising survey Nos.1468, 1567, 1569, 1572 and 1576 situated at village,

Sunjwan. The Committee submitted the demarcation report and in the said

report, it has been specifically mentioned that the land in question is the

proprietary land of the petitioners and the same falls outside the limits of

survey No. 1468 min where the land of the Forest Department is situated.

The Forest Department assailed the order dated 17.09.2016 whereby the

interim directions issued earlier were made absolute and the court of 1st

Additional District Judge, Jammu vide order dated 13.10.2016 ordered the

stay of construction till the same is demarcated so that the Forest land is not

encroached by any citizen including the petitioners. The appeal so filed by

the Forest Department was initially dismissed on 30.01.2017, but was

subsequently readmitted.

3. It is further stated in para 11 of the petition that during the pendency of the

writ petition as well as civil suit, just to harass the petitioners, false and

vexatious complaint dated 19.04.2018 was filed, alleging therein that on

18.04.2018 the petitioners forcibly entered into the Forest land compartment

No. 6/Chowadi comprising survey No. 1468 by engaging men and

machinery and altered the legal status of Forest land in survey No. 1468 by

way of digging/laying of concrete plinth of 300 ft approximately straight

from Bermene road and plinth of one room to grab more Forest land in

violation of section 6/39 of the J&K Forest Act and section 447-A RPC and

also the court order dated 15.12.2017. It was further alleged in the complaint

that the building material i.e. bricks 60,000, Bajri 500 C. ft and sand 500 C ft

have been dumped on spot for encroachment during odd hours to encroach

the Forest Land, which has been seized on site by BO Chowadi. It was also

stated that the demarcation of the land was conducted on 31.08.2017 by the

Commissioner in the presence of Forest Department's staff and the

petitioners herein and the said demarcation report clearly indicated that the

said person had encroached Forest land measuring 36 kanals and 01 marals

falling under survey No. 1468 in two parts. In one part, he has encroached 15

kanals and 18 marlas of land by way of plot-bandi and selling to different

persons and in second part by way of levelling and constructing 2 rooms i.e.

20 kanals and 3 marlas whereas his actual land comprising of survey Nos.

are 1572, 1569, 1568 and 1567, is found to be two and half kms away from

the survey No. 1468.

4. After the registration of said FIR, SHO Police Station, Bahu Fort approached

SDPO, Police Station, Jammu who accordingly, vide communication dated

28.04.2018 requested the Tehsildar, Bahu, Jammu to depute a team of

revenue officials for conducting the demarcation of the disputed land so that

the investigation of the case is brought to its logical conclusion. The

Tehsildar Jammu in-turn vide his communication dated 02.05.2018 directed

the DFO Jammu to depute a team of forest officials on spot for joint

demarcation of the land comprising survey No. 1468 of village Sunjwan or

otherwise situated at Bermini road on 03.05.2018 at 9 AM. Despite

communications, the officials of the Forest Department did not reach on spot

and Tehsildar Bahu vide communication dated 05.05.2018 informed the

SDPO East Jammu that the demarcation of survey number in question has

already been carried out through Commission on 17.10.2016 under the

orders of City Judge, Jammu and in the said report it has been established

that the said land is situated outside the limits of the Forest area.

5. The petitioners have impugned the FIR on the ground that the FIR is in

contrast to the documentary evidence placed on record and particularly when

a civil suit is going on between the parties, the same has been given a

criminal colour by the forest department notwithstanding with the fact that

the allegations levelled in the FIR are far-far away from the truth.

6. Reply stands filed by the respondents in which it has been stated that the

present petition is not maintainable as the disputed facts are involved. It is

further stated that on 22.04.2018 a communication was received from

complainant, Range Forest Officer, Bahu Range, Jammu wherein it was

stated as reported by BO Chowadi that it is brought to your kind notice that

one person, namely, Rashid Malik S/o Aman Din R/o Jalalabad and his son

Zulfi and his agent code name Foreman, resident of UP at present Sunjwan

on 18.04.2018 forcibly entered into forest compartment No. 6/Chowadi

comprising survey No. 1468 by engaging man and machinery and altered the

legal status of the forest land in the said survey number by way of

digging/laying of concrete plinth 300 feet approximately straight along

Bermini road and plinth of one room to grab more forest land in violation of

the Forest Act. It was also stated that the land of Rashid Malik comprising

survey Nos. 1572, 1569, 1568 and 1567 is in fact 2 and half kms away from

survey No. 1468.

7. After the receipt of the communication, FIR was registered and during the

course of investigation, the revenue record was obtained and it was found

that the accused Mohd Rashid Malik and his son Zulfi with criminal

intention trespassed into the Forest Land in survey No. 1468 by

digging/laying of concrete plinth and forcibly altering the Forest land. As per

revenue report of jamabandhi for the year, 1998 -1999, the survey No. 1468

is a Forest land.

8. Mr. Navyug Sethi, learned counsel for the petitioner vehemently argued that

as per demarcation report, the petitioners are in possession of their own land

and not of any Forest land falling under survey No. 1468. He laid much

stress on the demarcation report placed on record by the petitioners.

9. Per contra, Mr. Pawan Dev Singh, learned Dy.AG vehemently argued that

the petitioners have raised disputed questions of facts and they cannot be

considered in the present petition.

10. Heard and perused the record.

11. The dispute in the present case is with regard to the encroachment of Forest

land comprising survey No. 1468, Forest Compartment No.6. The petitioner

claims to be the owner in possession of the land comprising survey Nos.

1567 min, 1576, 1572 and 1569 situated at village Sunjwan regarding which

it is alleged that a civil suit for permanent prohibitory injunction is also

pending and further that the petitioners have also filed the writ petition

challenging the notice dated 21.05.2018 issued by the Forest Department. On

the contrary, the respondent No. 2 has levelled allegations against the

petitioners in respect of forcible encroachment of the Forest land comprising

survey No. 1468 on 18.04.2018. It needs to be noted that the petitioners filed

the writ petition after registration of the FIR against them.

12. A perusal of the petition reveals that the petitioners are themselves confused

about their status qua the land measuring 74 kanals 15 maralas. In para 3 of

the petition, the petitioner No. 1 claims to be the owner of land measuring 74

kanals and 15 marals situated at Sunjwan and further claims to have already

sold the land measuring 31 kanals and 19 marals to one Mukhtyar Ahmed

Waza and simultaneously, in para-5 of the petition, the petitioners have

pleaded that when the show cause notice dated 21.05.2018 was issued to the

petitioners, they replied the said notice stating therein that the petitioners on

behalf of Mukhtyar Ahmed Waza are not in illegal possession of the land

compromising Survey Nos. 1567, 1572 and 1569 total 74 kanals and 15

marlas situated at Sunjwan.

13. Further a perusal of the civil suit reveals that the petitioners are not party to

the said suit and in fact, it appears that they through the medium of the

present petition are trying to raise the dispute with regard to the location of

the land under the shelter of the said Mukhtyar Ahmed Waza.

14. The petitioners have also claimed that there is demarcation report which

demonstrates that the proprietary land of the petitioners falls outside the

limits of the khasra No. 1468 min. A perusal of the Case Diary reveals that

there is a demarcation report dated 08.02.2019 wherein it has been

categorically stated that one Mohd. Rashid S/o Imam Din has encroached the

land comprising survey No. 1468 which as per the jamabandi 1998-1999

Bikrami, is in possession of Forest Department. Merely because the civil suit

is pending before the civil court and the petitioners have filed the writ

petition challenging the notice dated 21.05.2018 would not mean that the

petitioners can forcibly occupy the Forest land comprising survey No. 1468,

more particularly when the suit has not been filed by them. The petitioners in

the present petition have raised the disputed questions of facts and this Court

cannot conduct a mini trial so as to determine the veracity of the claim of the

petitioners. It would be advantageous to take note of the observations of the

Hon'ble Apex Court in Priti Saraf v. State (NCT of Delhi), 2021 SCC

OnLine SC 206 and the relevant paras are reproduced as under:

"23. It being a settled principle of law that to exercise powers under Section 482 CrPC, the complaint in its entirety shall have to be examined on the basis of the allegation made in the complaint/FIR/charge-sheet and the High Court at that stage was not under an obligation to go into the matter or examine its correctness. Whatever appears on the face of the complaint/FIR/charge-sheet shall be taken into consideration without any critical examination of the same. The offence ought to appear ex facie on the complaint/FIR/charge-sheet and other documentary evidence, if any, on record.

30. In the instant case, the complaint/FIR/charge-sheet as noticed above, does, however, lend credence to the questions posed. It is settled that one is not supposed to dilate on this score, or intend to present that the allegations in the complaint will have to be accepted on the face of it and the truth or falsity of which would not be gone into by the Court at this stage, as noticed above, whether the allegations in the complaint were true is to be decided on the basis of the evidence led at the stage of trial and the observations on this score in the case of Nagpur Steel & Alloys Pvt. Ltd. v. P. Radhakrishna ought to be noticed. In para 3, this Court observed:-- "3. We have perused the complaint carefully. In our opinion it cannot be said that the complaint did not disclose the commission of an offence. Merely because the offence was committed during the course of a commercial transaction, would not be sufficient to hold that the complaint did not warrant a trial. Whether or not the allegations in the complaint were true was to be decided on the basis of evidence to be led at the trial in the complaint case. It certainly was not a case in which the criminal trial should have been cut short. The quashing of the complaint has resulted in grave miscarriage of justice. We, therefore, without expressing any opinion on the merits of the case, allow this appeal and set aside the impugned order of the High Court and restore the complaint. The learned trial Magistrate shall proceed with the complaint and dispose of it in accordance with law expeditiously."

31. Be it noted that in the matter of exercise of inherent power by the High Court, the only requirement is to see whether continuance of the proceedings would be a total abuse of the process of the Court. The Criminal Procedure Code contains a detailed procedure for investigation, framing of charge and trial, and in the event when the High Court is desirous of putting a halt to the known procedure of law, it must use proper circumspection with great care and caution to interfere in the complaint/FIR/charge-sheet in exercise of its inherent jurisdiction.

32. In the instant case, on a careful reading of the complaint/FIR/charge-sheet, in our view, it cannot be said that the complaint does not disclose the commission of an offence. The ingredients of the offences under Sections 406 and 420 IPC cannot be

said to be absent on the basis of the allegations in the complaint/FIR/charge-sheet. We would like to add that whether the allegations in the complaint are otherwise correct or not, has to be decided on the basis of the evidence to be led during the course of trial. Simply because there is a remedy provided for breach of contract or arbitral proceedings initiated at the instance of the appellants, that does not by itself clothe the court to come to a conclusion that civil remedy is the only remedy, and the initiation of criminal proceedings, in any manner, will be an abuse of the process of the court for exercising inherent powers of the High Court under Section 482 CrPC for quashing such proceedings."

(Emphasis Supplied)

15. In Central Bureau of Investigation V. Aryan Singh, 2023 LiveLaw (SC)

292, it has been held as under:

"From the impugned common judgment and order passed by the High Court, it appears that the High Court has dealt with the proceedings before it, as if, the High Court was conducting a mini trial and/or the High Court was considering the applications against the judgment and order passed by the learned Trial Court on conclusion of trial. As per the cardinal principle of law, at the stage of Criminal discharge and/or quashing of the criminal proceedings, while exercising the powers under Section 482 Cr.P.C., the Court is not required to conduct the mini trial. The High Court in the common impugned judgment and order has observed that the charges against the accused are not proved. This is not the stage where the prosecution / investigating agency is/are required to prove the charges. The charges are required to be proved during the trial on the basis of the evidence led by the prosecution / investigating agency. Therefore, the High Court has materially erred in going in detail in the allegations and the material collected during the course of the investigation against the accused, at this stage. At the stage of discharge and/or while exercising the powers under Section 482 Cr.P.C., the Court has a very limited jurisdiction and is required to consider "whether any sufficient material is available to proceed further against the accused for which the accused is required to be tried or not".