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Achuta and ors. Vs. Smt Bewa - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtOrissa High Court
Decided On
Judge
Reported in54(1982)CLT369; 1982CriLJ2349
AppellantAchuta and ors.
RespondentSmt Bewa
Cases ReferredNiranjan Prakash v. Manni Lal Dwivedi In
Excerpt:
.....exercise of its inherent power, the high court should not embark upon an enquiry as to whether the evidence in question is reliable or not. 17/17-k of 1979 under section 454 of the code for the disposal of the seized crops connection with the investigation into the same offence, an observation has been made by the learned sessions judge that it has clearly been established in a land ceiling proceeding in the court of the tahasildar, dharamgarh, that golak pradhan (since dead) who was the appellant no. 10. i would like to make it clear that some observations have been made by me only for the purpose of disposing of the application made in this court and the observations should not, in any manner, influence the mind of the trial court which shall independently come to its own conclusion..........acres of land to the latter and after separation, golak had no connection with this family or the land in question which has remained in the exclusive possession of the opposite party, the case of the petitioners is that they have been in actual cultivating possession of the land in question. after examination of three witnesses for the prosecution including the opposite party and hearing both the sides, the learned sub-divisional judicial magistrate has framed a charge under section 379 of the penal code rejecting the contention raised by the petitioners that a bona fide dispute was involved and that they were in possession of the land.2. mr. s. misra, for the petitioners has urged that in a ceiling proceeding under the land reforms act, the possession of the petitioners in respect of.....
Judgment:
ORDER

B.K. Behera, J.

1. The petitioners have made this application under Section 397 read with Section 482 of the Criminal P.C. (hereinafter referred to as the 'Code') for quashing the criminal proceeding (I. C. C. No. '8 of 1979) pending in the court of the learned Sub-divisional Judicial Magistrate, Dharamgarh, instituted by the opposite party for theft by the petitioners and their father Golak Pradhan (now dead) of the crops raised by her in the year 1978 and the occurrence had allegedly taken place on Nov. 25 1978. The opposite party reported this occurrence to the police authorities and after the matter was investigated into, a final report was submitted. On the petition of complaint of the opposite party, cognizance of an offence of theft punishable under Section 379 of the Penal Code was taken and the petitioners were prosecuted. While according to the opposite party, prior to her marriage, her husband had adopted the deceased Golak Pradhan. the father of the three petitioners, about 40 years ago and her husband got separated from Golak by giving away 20 acres of land to the latter and after separation, Golak had no connection with this family or the land in question which has remained in the exclusive possession of the opposite party, the case of the petitioners is that they have been in actual cultivating possession of the land in question. After examination of three witnesses for the prosecution including the opposite party and hearing both the sides, the learned Sub-divisional Judicial Magistrate has framed a charge under Section 379 of the Penal Code rejecting the contention raised by the petitioners that a bona fide dispute was involved and that they were in possession of the land.

2. Mr. S. Misra, for the petitioners has urged that in a ceiling proceeding under the Land Reforms Act, the possession of the petitioners in respect of the land in question has been established for which the crops which had allegedly been removed by them and seized during the investigation of the case were not to be returned to the opposite party, as ordered by the learned Additional Sessions Judge, Bhawanipatna, who issued a direction that the crops be sold and the sale proceeds be deposited in the treasury to be delivered to the successful party after the title of the property was decided by the Civil Court or till the parties came to an amicable settlement. He has also submitted that in Criminal Miscellaneous Case No. 23 of 1979, a proceeding under. Section 145 of the Code between the opposite party on the one hand and the petitioners and their father on the other, the learned Sub-divisional Magistrate, Dharamgarh, found that none of the parties thereto was in exclusive possession of the land and therefore a direction was made to the parties to approach the competent court for a declaration of title in their favour and the land was attached under Section 146(1) of the Code. All this would show. Mr. Misra contends, that there was a bona fide dispute relating to the title and possession over the land in question and therefore, to initiate and continue the criminal proceeding against the petitioners would be an abuse of the process of the Court and the criminal proceeding against the petitioners and the charge framed against them should be quashed. The opposite party, in spite of service of notice on her, has not entered appearance.

3. The inherent power of the High Court can be exercised to quash a criminal proceeding in a proper case either to prevent the abuse of the process of the Court or otherwise to secure the ends of justice. Ordinarily the criminal proceeding instituted against an accused person shall be tried under the provisions of the Code and the High Court would be reluctant to interfere with the said proceeding at an interlocutory stage. Where the allegations in the first information report or the complaint, even if they are taken on their face value and accepted in entirety, do not constitute an offence alleged or there is no legal evidence adduced in support of the case or the evidence adduced clearly and manifestly fails to prove the charge, the inherent jurisdiction of the Court can be exercised. It is, however, important to bear in mind a distinction between a case where there is no legal evidence or where there is evidence which is manifestly and clearly inconsistent with the accusation made and a case where there is legal evidence which, on its appreciation, may or may not support the accusation in question. In exercise of its inherent power, the High Court should not embark upon an enquiry as to whether the evidence in question is reliable or not. This is the function of the trial Magistrate and ordinarily it would not be open to any party to invoke the High Court's inherent jurisdiction and contend that on a reasonable appreciation of the evidence the accusation made against the accused person would not be sustained.

4. In the instant case, the police authorities had, no doubt, submitted a final report, but it was certainly open to the opposite party to make a petition of complaint being aggrieved by the submission of such a report and the opposite party had so done and on the basis of her petition of complaint cognizance of the offence had been taken after her initial statement was recorded. At that stage, no application had been made to quash the criminal proceeding. The matter was allowed to proceed and now the evidence of three witnesses for the opposite party including that of her own has been recorded. All of them have testified that in the year of occurrence, the crops had been raised by the opposite party and the crops so raised had been removed by the petitioners. A few questions had been put to the opposite party in her cross-examination before charge and the evidence of other two witnesses in support of the case of the opposite party has gone unchallenged before the charge was framed.

5. No doubt in Criminal Appeal No. 17/17-K of 1979 under Section 454 of the Code for the disposal of the seized crops connection with the investigation into the same offence, an observation has been made by the learned Sessions Judge that it has clearly been established in a land ceiling proceeding in the court of the Tahasildar, Dharamgarh, that Golak Pradhan (since dead) who was the appellant No. 1 in the aforesaid appeal, had been in separate possession of the land in dispute as the adopted son of the opposite party, but the petitioners had not filed any such orders before the trial court in order to show that the father of the petitioners had been in separate possession of the land in question.

6. A proceeding under Section 145 of the Code had been initiated in respect of the land in question, but it is pertinent to note that this proceeding had been initiated in the year 1979 and not during the year 1978 in which the occurrence had taken place. As can be seen from the order passed therein, none of the parties was found to be in possession of the land in the year 1979. In such a proceeding a Magistrate has to find out the possession of either party on the date of the preliminary order or within two months prior to that. As observed by the Supreme Court in : 1959CriLJ1223 Bhinka v. Charan Singh a final order passed under Section 145(6) of the Code is merely a police order and decides no question of title and the life of such an order is conterminous with the passing of a decree by a Civil Court and the moment a Civil Court makes an order of eviction, it displaces the order of the criminal court, It would be seen from this order that a dispute did arise between the parties in the year 1979, but this would not. by itself, nullify the case of the opposite party that in the year 1978, she had raised the crops on the land in question,

7. As has been laid down by the Supreme Court in : 1980CriLJ822 Trilok Singh v. Sathya Deo Tripathi when the dispute raised is purely of a civil nature the initiation of a criminal proceeding is an abuse of the process of the Court and deserves to be quashed. The Allahabad High Court has taken the same view in : AIR1964All433 Niranjan Prakash v. Manni Lal Dwivedi In the instant case however for the reasons already recorded by me, it could not be said that on the materials thus far placed, there are no reasonable grounds for proceedings against the petitioners for theft of crops of paddy in the year 1978. I have indicated above and I repeat that of the three witnesses examined for the opposite party so far. the evidence of two of the witnesses who have supported the ease of the opposite party that she has raised the crops in the year 1978 a fact which would be very material to find out as to whether a bona fide dispute really existed - has gone unchallenged as their evidence has not been tested by cross-examination before charge.

8. I thus find that there is no ground for interference at this stage and it is not a fit case in which the criminal proceeding against the petitioners and the charge framed against them should be quashed.

9. In the result, the application fails and the Miscellaneous Case stands dismissed.

10. I would like to make it clear that some observations have been made by me only for the purpose of disposing of the application made in this Court and the observations should not, in any manner, influence the mind of the trial court which shall independently come to its own conclusion either way on the legal evidence placed before it.


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