Punjab-Haryana High Court
Gurmail Singh vs State Of Punjab And Another on 29 January, 2025
Neutral Citation No:=2025:PHHC:014398
CRM-M-19777
19777-2023 (O&M) -1-
IN THE HIGH COURT FOR THE STATES OF PUNJAB AND
HARYANA AT CHANDIGARH
203
CRM-M-19777-20232023 (O&M)
Date of decision : 24.01.2025
Gurmail Singh ...Petitioner
Versus
State of Punjab and another ...Respondents
CORAM: HON'BLE MRS. JUSTICE MANISHA BATRA
Present:- Mr. H. S. Sandhu, Advocate
for the petitioner.
Ms. Swati Batra, Deputy Advocate General, Punjab.
Mr. Ishan Gupta, Advocate
for respondent No. 2.
MANISHA BATRA, J. (Oral)
1. The instant petition, under Section 482 of the Code of Criminal
Procedure (for short ‘the Code’),, has been filed for quashing of FIR No. 125
dated 20.11.2022,
20.11.2022, registered under Sections 427 and 447 read with Section
511 of the IPC at Police Station Sandaur, District Malerkotla aand
nd the
proceedings having emanated therefrom.
2. Brief facts relevant for the purpose of disposal of the present
petition are that the aforementioned FIR was registe
registered
red on the basis of a
complaint filed by respondent No. 2-Bahadar
Bahadar Singh on the allegati
allegations
ons that
Samreen Kaur and Ivleen Kaur, who are his granddaughter
granddaughters and residing in
Canada, were co-owners
co owners of 04 acres of land situated in the revenue estate of
village Faujewal. The girdawari entries of this land were in the names of his
granddaughters and previously it was leased out to one Manjeet Singh, who
had vacated the same after reaping the paddy crops. The complainant had to
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lease out this land further. Stubble of the paddy crop was sstanding
tanding in the
above said land, which was to be used by the complainant. On 20.11.2022, the
petitioner/accused along with 3-4
3 4 unknown persons destroyed the stubble by
putting fire and tried to encroach upon the above said land. After registration
of the FIR,
R, investigation proceedings were initiated. The presence of the
petitioner was secured. He was released on bail. After completion of
necessary investigation and usual formalities, challan under Sections 427 and
447 read with Section 511 of IPC was present
presented as against the petitioner.
3. It is argued by learned counsel for the petitioner that the
impugned FIR and the proceedings having emanated therefrom including the
challan report,
report are liable to be quashed since he has been falsely implicated in
this case.
e. In fact there was matrimonial discord between his son Varinder
Singh and daughter-in-law
daughter law Paramjeet Kaur and they had parted ways. He is
paternal grandfather of Samreen Kaur and Ivleen Kaur, whereas respondent
No. 2/complainant is not their real grandfat
grandfather.
her. Rather, he is uncle of
Paramjeet Kaur. The property in question was owned by his son Varinder
Singh to the extent of ¼ share. He had transferred the same in favour of the
petitioner and his wife.. His granddaughters had challenged the transfer by
filing
g a civil suit, which has been decreed in their favour. An appeal filed
against the said judgment and decree is pending. The petitioner had filed a
revision petition, bearing CR-3828-2018,, before this Court against the interim
order, passed by the learned first appellate Court, and status quo regarding
possession of the above said land has been ordered to be maintained. In fact, it
was the complainant, who had tried to take forcible pos
possession
sion of the land in
question, after
after passing of the impugned order and an FIR bearing No. 45 dated
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05.06.2018 had been lodged under Sections 148, 149, 379, 447 and 511 of
IPC against respondent No. 2 at Police Station Sandaur. Respondent No.2,
No.2 by
forcibly entering
ntering into the land in question, had ploughed the same as on
20.11.2022 and a contempt petition filed against him is also pending. Even
otherwise, the petitioner is the joint co-owner
co owner in possession of the land in
question. The ingredients for commission of offences punishable under
Section 427 and 447 of IPC have not been at all attracted in this case, as there
are vague allegations in the FIR. No description of the property which was
allegedly tried to be encroached upon by the petitioner has been mentioned
ned in
the FIR. The criminal proceedings have been initiated only to abuse the
process of law. He has further argued that even otherwise, the allegations,
even if taken on the face of record to be correct
correct,, do not make out any case for
trial of the petitioner
petitioner for commission of offences, for which, he has been
booked and challaned. With these broad submissions, it is urged that the
petition deserves to be allowed and the impugned FIR along with all the
subsequent proceedings is liable to be quashed.
4. Status
us report has been filed by the respondent
respondent-State.
State. It is
submitted therein and learned Deputy Advocate General, Punjab, assisted by
learned counsel for respondent No.2/complainant, has argued that the
investigation was conducted on the allegations in the FI
FIR and a prima facie
for commission of aforementioned offences has been made out against the
petitioner. Investigation stands concluded. There is no exceptional or sparing
circumstance to quash the impugned FIR. It is further submitted that in view
of specific allegations against the petitioner in the FIR as well as in the
chargesheet, it is not a case to quash the proceedings at this stage. The
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petitioner can prove his innocence in trial. The land in question was in
possession of the minor
mi daughters
aughters of Paramjeet Kaur and the petitioner had
tried to encroach upon the same by criminally trespassing into the same and
causing damage to the paddy waste. There are serious and specific allegations
against the petitioner and it is not a good case, wh
where
ere the FIR should be
quashed by this Court while exercising inherent powers under Section 482 of
the Code. Therefore, it is urged that the petition is liable to be dismissed.
5. I have heard learned counsel for the parties at considerable length
and have
ve also gone through the material placed on record.
6. At the outset, I deem it appropriate to consider the scope of
interference in chargesheet that has been filed by the police against the
petitioners. An accused certainly can approach High Court under Section 482
Cr.P.C. (which is pari materia with Section 528 of BNSS, 2023) or under
Article 227 of the Constitution of India to have the proceedings quashed
against him, when the complaint does not make out any case against him.
Hon’ble Supreme Court has laid
laid down broad principles of law relating to
exercise of extraordinary power under Art
Article
cle 226 of the Constitution of India
to quash the FIR/Challan report in a celebrated judgment cited as State of
Haryana vs. Bhajan Lal and others : 1991 (1) RCR (Crimina
(Criminal) 383,, wherein
it has been held that the power to quash an FIR/chargesheet can be exercised
either to prevent abuse of process of Court or otherwise to secure the ends of
justice. The following categories of cases have been detailed, wherein such
powers can
an be exercised:
1. Where the allegations made in the First Information Report
or the complaint, even if they are taken at their face value and4 of 13
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19777-2023 (O&M) -5-
accepted in their entirety do not prima facie constitute any
offence or make out a case against the accused.
2. Where the allegations in the First Information Report and
other materials, if any, accompanying the F.I.R. do not
disclose a cognizable offence, justifying an investigation by
police officers under Section 156 (1) of the Code except under
an order of a Magistrate within the purview of Section 155(2)
155
of the Code.
3. Where the uncontroverted allegations ma
made
de in the FIR or
complaint and the evidence collected in support of the same
do not disclose the commission of any offence and make out a
case against the accused.
4. Where, the allegations in the F.I.R. do not constitute a
cognizable offence but constitut
constitute only a non-cognizable
cognizable
offence, no investigation is permitted by a police officer
without an order of a Magistrate as contemplated under
Section 155(2)
(2) of the Code.
5. Where the allegations made in the F.I.R. or complaint are
so absurd and inherently improbable on the basis of which no
prudent person can ever reach a just conclusion that there is
sufficient ground for proceeding against the accused.
6. Where there is an express legal bar engrafted in an
anyy of the
provisions of the Code or the concerned Act (under which a
criminal proceeding is instituted) to the institution and
continuance of the proceedings and/or where there is a
specific provision in the Code or the concerned Act, providing
efficacious redress for the grievance of the aggrieved party.
7. Where a criminal proceeding is manifestly attended with
mala fide and/or where the proceeding is maliciously
instituted with an ulterior motive for wreaking vengeance on
the accused and with a view to sp
spite
ite him due to private and
personal grudge.
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7. The principles of law as laid down by Hon’ble Supreme Court in
Bhajan Lal’s
Lal‘s case (supra) have been followed in a catena of judgments. In
Paramjeet Batra vs. State of Uttarakhan : (2013) 11 SCC 673
673,, it was
observed by Hon’ble Supreme Court that although the inherent powers of a
High Court under Section 482 of the Code should be exercised sparingly and
only for the purpose of preventing abuse of process of any Court or otherwise
to secure ends of justice, yet, the
the High Court must not hesitate in quashing
such criminal proceedings, where essential ingredients of the offence are not
made out. In Randhir Singh vs. State of Uttar Pradesh : (2021) 14 SCC 626,
626
it was observed by Hon’ble Supreme Court that criminal proceedings cannot
be taken recourse to as a weapon of harassment.
8. Keeping the above mentioned principle
principles of law into mind, let us
notice as to whether in the instant case, there is any scope of interference of
this Court in the present petition relating to quashing of FIR/Challan report as
filed against the petitioner.
petitioner The petitioner has been booked for commission of
offence punishable under Section 447 of IPC, which provides punishment for
offence
nce of criminal trespass. The offence of criminal trespass is defined under
Section 441 of IPC. The ingredients for commission of offence under this
section are as under:
(a) (i) Unauthorized or unlawful entry into or upon
property in the possession of another, or
(ii) having lawfully entered unlawfully remaining there.
(b) With intent, in either case.
(i) to commit an offence, or
(ii) intimidate, insult or annoy any person in possession
of such property6 of 13
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9. On a bare reading of the above, it is clear tthat
hat to constitute an
offence of criminal trespass, there must be unauthorized or unlawful entry into
or upon the property, which is in possession
ossession of another or lawful entry but
unlawfully remaining in such property with intention to commit such offence.
In the instant case, the allegations are that the petitioner had made an attempt
to criminally trespass into the property owned by the daughters of nniece
iece of the
present complainant, who are his granddaughters as well. It is revealed from
the record that Paramjeet
Paramjeet Kaur, who is ex
ex-daughter
daughter in law of the petitioner,
and her daughters had filed a civil suit for declaration bearing No. 286 of
2013, titled as Smt. Paramjit Kaur and another vs. Varinder Singh and
others and vide judgment dated 19.03.2018 (Annexure P
P-3),
3), the said suit had
been decreed and the granddaughters of the petitioner, namely Samreen Kaur
and Ivleen Kaur, were held entitled to join possession to the extent of 1/3rd
share in the property transferred by their father in favour of the present
petitioner
ioner and his wife by declaring them to be coparceners in Hindu joint
family. The transfer deed qua that property executed by son of the petitioner
had also been declared null and void. The complainant is claiming possessin
of Samreen Kaur and Ivleen Kaur over the property in dispute on the basis of
this very judgment and decree as well as Khasra Girdawari (Annexure P-7)
P
entered on the basis of this decree. It is not disputed that an appeal against the
aforesaid judgment and decree is pending before the fir
first
st appellate Court,
which had previously set aside the above decree but in a regular second appeal
as filed before this Court, the matter has been remanded to the first appellate
Court. In the judgment dated 19.03.2018, the learned trial Court is shown to
have specifically observed that the present petitioner and his son were in
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19777-2023 (O&M) -8-
cultivating possession of the land, which was the subject matter of the dispute
in the above said suit, and even after passing of this decree, the son of the
present petitioner continued
continued to remain co
co-sharer
sharer in this area of land. He is
admittedly residing abroad and the petitioner, on his behalf, is in possession of
his share. The complainant has claimed possession of Samreen Kaur and
Ivleen Kaur on the basis of the same decree, which has only held them to be
entitled to joint possession without observing that they are in actual physical
possession of the same or not.
10. The stand as taken by respondent No. 2/complainant is that and it
is also alleged in the FIR that one Manjeet Singh was in cultivating possession
of the share of Samreen Kaur and Ivleen Kaur from the year 2018 and he had
vacated the same just after the date of occurrence after harvesting his paddy
crop and leaving its stubble therein. The said Manjeet Singh had fi
filed
led an
affidavit (Annexure P-4)
P to this effect before the investigating agency and this
fact finds mention in the challan report also that he had grown paddy crop
over the disputed land. A perusal of the affidavit (Annexure P
P-4),
4), however,
reveals that in para
para No. 1 of the same, he had mentioned that he had taken the
land in question on lease on 01.04.2022 from respondent No. 2, who used to
give this land on lease on behalf of Paramjeet Kaur and her daughters and had
remained in his possession from 01.04.202
01.04.20222 to March, 2023, but in the last
paragraph of the same affidavit, contrary to his previous claim, he has
mentioned that the said land remained in his possession from 01.04.2018 to
18.11.2022. These contrary pleas themselves are indicative of the fact that the
same are false. More so, no material is shown to have been collected by the
investigating agency to show that respondent No. 2 had been given any
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authorization by the granddaughters of the petitioner to give their share in the
land on lease to above said
said Manjeet Singh or anybody else or any lease deed
was executed in favour of Manjeet Singh. Further
Further,, interestingly, no khasra
girdawari entry showing possession of Manjeet Singh over any part of the
land in dispute has been placed on record by respondent No. 2. Merely on the
basis of the plea taken in the affidavit, it cannot be assumed that the above
said Manjeet Singh was in fact in actual physical possession of any portion of
the property in dispute and had grown any crop over it, especially in the
circumstance
umstance when neither in the complaint nor in his affidavit, the numbers
of khewat, khsara or khatauni of such land ha
have been mentioned.
11. Then, Annexure P-3
3 is copy of the mutation No. 892 sanctioned
on 28.04.2020 on the basis of the judgment passed iin aforesaid civil suit No.
286 showing transfer of ownership of the property in dispute in favour of
granddaughters of the petitioner to the extent of 1/3rd share and name of son of
the petitioner is shown as co-sharer
co sharer to the extent of remaining share. In the
column of cultivation, it is recorded that the same entries which were going on
had to be followed. It is not the case of respondent No. 2 that the
granddaughters of the petitioner were previously in possession of the disputed
property. Meaning thereby that the cultivation in fact continued with Varinder
Singh. As already discussed, since he was residing abroad, therefore, the
petitioner, on his behalf, is in cultivating possession of the same. It is worth
mentioning that in the civil appeal filed by th
thee petitioner, an order to maintain
status quo with regard to possession over the said land has been passed by the
first appellate Court. There is nothing on record to suggest that the
granddaughters of the petitioner or anybody else on their behalf were ha
handed
nded
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over the actual physical possession
possession of any land fallen to their share at any
point of time. In such circumstance, the question of committing offence of
criminal trespass in the property of his granddaughters by the petitioner could
not arise. More so, the petitioner is obviously in occupation of share of land
owned by his son and on his behalf and, therefore, he cannot be even
otherwise stated to have committed any act of criminal trespass with regard to
the same property, which is undisputedly unparti
unpartitioned since
ince well settled
proposition of law is that the possession of the one co
co-sharer
sharer in unpartitioned
property is deemed to be possession of all the co
co-sharers unlesss the same is
partitioned by metes
me s and bounds and a co
co-sharer
sharer in the joint land cannot be
said to have committed offence of criminal trespass. Reference in this regard
can be had to the observations made by the High Court of Jammu and
Kashmir in Dilshada Sheikh vs. Saba Sheikh : 2022 (3) JKJ 317
317.. Reliance in
this context can also be placed upon the observations made by Hon’ble
Supreme Court in Rajinder Singh Katoch vs. Chandigarh Administration
and another : (2007) 10 SCC 69 as well as upon the judgments rendered by
this Court on 13.03.2013 in CRM-M-34854
34854-2011, titled as Dilbagh Singh vs.
State of Punjab,
Punjab, and by Delhi High Court in Rajesh Bajaj vs. State of NCT of
Delhi : 1999 (3) SCC 259.
259. Reference can also be made to Bhupendra Singh
Verma vs. State (NCT of Delh) : (2019) 3 JCC 2027
2027, wherein theree was
dispute between a father and son pertaining to a joint property. It was held that
criminal proceedings cannot be set into motion in relation to a family dispute
when there is nothing on record to show that the complainant was in exclusive
possession of any portion of the property under a family arrangement. In the
instant case, the granddaughters of the petitioner have also taken recourse to
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civil remedies and it is explicit that a dispute, which is of civil nature, has
been given colour of an offence
offence of criminal trespass, which amounts to abuse
of process of law and should not be allowed. Accordingly, it is held that the
prosecution of the petitioner under Section 447 read with Section 511 of IPC
is not sustainable and hence is liable to be quashed.
12. So far as the offence under Section 427 of IPC is concerned, the
allegations are that the petitioner, while trying to enter into the land in
possession of his granddaughters, had tried to cause damage to stubble of
paddy crop as standing in the fields
fields and thereby committed an offence of
mischief. The offence of mischief is defined under Section 425 of IPC. In
order that this section may apply, it is required to show and prove that the
accused:
(i) caused the destruction of some property or some
change in it or in its situation.
(ii) Such change must have destroyed or diminished the
value or utility of the property or affected the property
injuriously.
(iii) The causing of destruction or change in the
property or in its situation must have been wi
with
th the
intention to cause or with the knowledge of the
likelihood of thereby causing wrongful loss or damage
to the public or to any person.
13. On a bare reading of the above provision
provision,, it is clear that the main
ingredient of offence of mischief is that
that there must be intent to cause wrongful
wrong
loss or damage to the property and with that intent, destruction and damage
should be caused resulting in diminishing the value or utility of some
property. Mere causing of loss is not enough and criminal intention to cause
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such loss should also be established. In the instant case, however, there are
bald allegations in the complaint that the petitioner had set the paddy
waste/stubble on fire without producing any material on record to show so.
Neither any photograph,
photograp video nor report of the Halqa Patwari regarding
damage of the crop/paddy waste
waste has been produced on record nor there is any
other material on record to show that the alleged damage had been caused or
attempted to be caused on the particular part of land having fallen to the share
of the granddaughters of the petitioner.
petitioner. There is also no allegation that such
damage had diminished or destroyed the value or utility of the property in
question or caused some change in its situation. Hence, it cannot be said that
even a prima facie case for commission of offence under Section 427 of IPC
was made out
ou against the petitioner.
14. As a fallout and consequence of above stated legal analysis and
in view of the peculiar facts and circumstances of the case
case,, it is held that the
instant one is a fit case for exercising inherent powers of this Court under
Section 482 Cr.P.C. to do real and substantial justice as the continuation of
criminal proceedings against the petitioner would amount to abuse of process
of law.. Accordingly, the present petition is allowed and FIR No. 125 dated
20.11.2022, registered under Sections 427 and 447 read with Section 511 of
the IPC at Police Station Sandaur, District Malerkotla as registered
gistered against the
petitioner,, challan report and all the proceedings having emanated therefrom
are hereby ordered to be quashed.
quashed
24.01.2025 (MANISHA BATRA)
Waseem Ansari JUDGE
Whether speaking/reasoned Yes/No
Whether reportable Yes/No
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