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

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.

03.2 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

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

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

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

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

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

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

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.

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

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

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

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