R.S. Narula, J.
1. This is a petition under Section 561-A of the Code of Criminal Procedure for quashing the orders dated May 11, 1965, passed by Magistrate 1st Class, Delhi directing the issue of process to compel the appearance of the petitioners as accused under Sections 447, 379, 427, 34 of the Indian Penal Code. A prayer for revision (under Section 439 of the Code of Criminal Procedure) of the order of the trial court dated December 6, 1965, refusing to discharge the petitioners under Section 253(2) of the Code of Criminal Procedure, which orders have been upheld in revision by the learned Additional Sessions Judge, Delhi, on March 1, 1966, has also been added to the petition.
2. The criminal proceedings are an outcome of a dispute between Mahant Santokh Dass, who claims to be an occupancy tenant of the entire land comprised in Khasra No. 129, Civil Station, Delhi, on the one hand and the Gurdwara Prabandhak Committee, Sis Ganj, Chandni Chowk , Delhi, who claim to be the owners of that property, on the other hand. Gurdial Singh, Santokh Singh and Tara Singh petitioners have been brought into the picture as they are respectively the Manager, Secretary and Sewadar of the Gurdwara Prabandhak Committee named above, the last named being a Sewadar of Gurdwara Majnu Tila, Civil Lines, Delhi, which Gurdwara is admittedly situated on a part of Khasra No. 129. Mahant Abhey Das, the plaintiff-respondent, has claimed to be the general attorney of Mahant Santokh Das aforesaid.
It is admitted that the dispute to the ownership of at least some part of, the land in question was the subject-matter of a civil suit which was filed by Bawa Santokh Dass on August 26, 1955, for a declaration to the effect that he was in possession of the land measuring 27 Bighas and 8 Biswas falling in Khasra No. 129 as a Dholidar and as an occupancy tenant and for a permanent injunction restraining; the Gurdwara Prabandhak Committee aforesaid from interfering with his possession and from building any Structure on the said land. The date of institution of the suit has been taken by me from the judgment of the trial Court in that suit, Suit No. 388 of 1955, which has been placed on record of this case in the trial Court by the complainant.
3. In the suit filed by Mahant Santokh Dass, issue No. 2 was to the following effect:--
'Whether the plaintiff was in possession of the suit land on the date of institution of the suit and the suit can He in the present form?' While discussing the subject-matter of issue No. 2 of the Court of Shri R. L. Lamba, Sub Judge 1st Class Delhi, in its judgment dated April 24, 1961, whereby it decreed the suit of Mahant Santokh Dass, held inter alia as follows :--
'The plaintiff does not appear to have done anything physically with the land in dispute and as plaintiff's physical possession is not proved but since he is the Dholidar, his possession shall have to be presumed as the land is Banjar and it has not been cultivated or taken possession of by any party.'
From the above-mentioned observations in the judgment of the learned Sub-Judge, it is apparent that the plaintiff could not prove himself to have been in actual physical possession of the land in dispute even in the said civil suit. The Gurdwara Prabandhak Committee preferred an appeal against the judgment and decree of the trial Court in the civil suit to the Court of the District Judge, Delhi. By judgment dated July 17, 1963, Shri P.N. Thukral, the learned Additional District Judge, Delhi, framed two additional issues in the case and remitted the same for report to the trial Court:--
'1. Whether the plaintiff is the Chela of Bawa Gopal Dass deceased and is entitled to succeed this estate? 'Whether plaintiff is the occupancy tenant of the land in dispute?'
It was during the pendency of the appeal of the Gurdwara Committee after the order of the Additional District Judge calling for a report of the trial Court on the above-quoted two issues that the complaint dated June 15, 1964, which has given rise to the present proceedings, was filed by the respondent. In paragraph 8 of the complaint it was mentioned that the Gurdwara Prabandhak Committee had tried their luck in many revenue and civil suits and their claims had always been rejected. In paragraph 9 of the complaint, a reference was made to a declaratory suit having been decreed by the Court of Shri R. L. Lamba on April 24, 1961, with costs. After referring to certain land acquisition proceedings the complainant described the offence alleged to have been committed by the petitioners in the following words:
'That the Committee having lost every where in Courts ultimately took to the law of jungle and to wreak their revenge and to create evidence in their favour, the accused Nos. 1. 3 and 4 (Gurdial Singh petitioner, late Shri Gulab Singh, President of the Committee and Santokh Singh petitioner) along with accused No. 2 (Sewadars of Gurdwara Majnu Tila) in furtherance of their common intention in absence of the owner and his Mukhtiar in the morning of 29-3-1964 by illegally trespassing the said orchard employed coolies and some servants of the Gurdwara totally destroyed it and they closed the watering well totally and levelled the orchard to ground with the help of some men. and after cutting the said trees from the orchard in the absence of the complainant the accused illegally and dishonestly removed them from the orchard and took them in their possession.'
The complainant claimed to have come to know of the incident on the next day and alleged that he had reported the matter to the police but no action having been taken by the police authorities, he had ultimately to me the complaint. After giving aforesaid explanation for the Inordinate delay in the filing of the complaint, the complainant stated in the last paragraph as follows :--
'That the accused have no interest or title in the land which they trespassed illegally and destroyed the whole orchard and a watering well thereby caused intentionally and deliberately a loss of Rs. 14,000 to the owner, hence they are equally guilty under Sections 447, 379, 329, 34.
It is humbly prayed that the said accused be dealt according to law and punished severely so that it may serve a lesson to all men who are equally minded like the accused. The complainant has got sufficient oral and documentary evidence in his possession in support of his case.'
4. The complaint was presented to the Additional District Magistrate, Delhi on June 15, 1964, and the said learned Magistrate passed the following order on it on the same day :--
'Present complainant with counsel. Heard. To S. D. M. Shahdara (Shri R.K. Sinha) for enquiry and report. Complainant will appear in his Court on 22-6-1964.
5. It is significant to note that the case was not transferred by the Additional District Magistrate either for enquiry or for trial to the S.D.M. Shahdara but was only marked 'for enquiry and report' to him. It is also not disputed that the learned Additional District Magistrate passed the above-quoted order without examining the complainant who was admittedly present in Court before him.
6. The enquiry proceedings appear to have drifted on till the Court of the S. D. M. Shahdara was presided over by Shri R.L. Khanna, who after recording some evidence, made his report dated April, 12, 1965 to the Additional District Magistrate, wherein the conclusion was couched in the following language:
'No mention has been made of Gulab Singh President, Gurdwara Prabandhak Committee, who has been mentioned in the present complaint as an accused. The written complaint as also the statement on oath of the complainant and the preliminary evidence produced disclose sufficient grounds for proceeding against the accused except Gulab Singh under Sections 447, 379, 34 Indian Penal Code. Section 428, Indian Penal Code, mentioned in the written complaint is not applicable because there is no evidence of killing or maiming animals.'
The written report together with the original complaint and connected documents were forwarded by the S. D. M. to the Additional District Magistrate, Delhi. On April 24, 1965, the learned Additional District Magistrate heard the counsel for the complainant and after going through the report of the enquiry conducted by the S. D. M. observed that Gulab Singh having died in the meantime he found that prima facie case had been made out under Sections 427, 447, 379, 34, Indian Penal Code, against the present petitioners. In the said order the learned Additional District Magistrate did not, however, direct the issue of any process against any of the petitioners but merely concluded by directing that the case be sent to the Court of Shri C.N. Narula, Magistrate 1st Class, for disposal according to law. On May 11, 1965, the court of Shri C.N. Narula without examining the complainant or coming to any finding of his own, directed the issue of process to the petitioners returnable for 8-6-1965. It is the above said order dated 11-5-1965 which has been sought to be quashed by this Court in these proceedings under Section 561-A of the Criminal Procedure Code. All that is stated to have since happened in the proceedings before the trial Court is that a Patwari has been examined by the complainant as witness for the prosecution.
7. In the meantime, the Court of Shri V.P. Bhatnagar, Sub-Judge 1st Class, concluded the remand proceedings in the civil appeal in pursuance of the order of the District Judge and submitted his report dated 11-10-1965, to the appellate Court holding that Bawa Santokh Dass was the Chela of Bawa Gopal Dass but that he had failed to prove that he was entitled to succeed to the estate of Bawa Gopal Dass. On the second issue, on which report was called by the District Judge, the learned Sub-Judge held that Bawa Santokh Dass plaintiff could not in the circumstances of the case be held to be an occupancy tenant. The plaintiff had filed an application for amendment of the plaint but the same could not be disposed of by the learned Sub-Judge, as the whole suit was not before him but he had been directed by the appellate Court only to report his findings on the two additional issues framed on July 17, 1965. Copy of the order of Shri V. P. Bhatnagar is also on the record of Criminal Revision No. 13 of 1966 of the Court of the Additional Sessions Judge, Delhi.
It was at that stage that the present petitioner submitted an application dated 6-12-1965 to the trial Court under Section 253(2) of the Code of Criminal Procedure quoting the two additional issues framed by the District Court and referring to the findings recorded by the trial Court on those issues and stating that in this view of the matter the very foundation of the complaint had been taken away. In the application it was asserted that the dispute was prima facie of a civil nature and that the complaint had been filed only in order to harass the petitioners. Shri A. Jindal, the learned Magistrate in whose Court the case was pending, passed the following order on that application on that very day, i.e. 6-12-1965:--
'Heard the parties. This Court is not to sit in judgment over the findings of learned Civil Judge or Additional Sub Judge but is only concerned with possession and criminal trespass over such possession of land in dispute. The matter of title is to be decided upon by competent civil Courts. I see no reasons to discharge the accused at this stage or to stay the proceedings as verbally requested by counsel for the accused. Application rejected. Case to proceed with prosecution evidence today.'
The above-quoted is the order of the Magistrate which is sought to be set aside in revision under Section 439 of the Cods of Criminal Procedure.
8. On the arrival of the report of the Sub-Judge, the appeal of the Gurdwara Committee against the decree of the Court of Shri Lamba came up before Shri M.L. Jain, Additional District Judge, Delhi, on April 25, 1966. An application of Mahant Santokh Dass, plaintiff in the civil litigation, for amendment of his plaint at the appellate stage had been rejected by the Additional District Judge on February 23, 1966, when the appeal was adjourned for being heard on merits to the 25th of April, 1966. At that stage, the plaintiff (Mahant Santokh Dass) filed an application before the civil appellate Court under Order 23, Rule 1 of the Code of Civil Procedure, read with Section 107(2) of the Code for withdrawal of his civil suit with permission to bring a fresh suit 'on the ground that he (Mahant Santokh Dass) apprehended dismissal of his suit on account or his failure to have stated the basis of the claim to the property in dispute as Mahant of the Dera and as successor of Bawa Gopal Dass and that the aforesaid allegation was necessary to be made for getting the relief prayed for by him in the suit.
The application was resisted by the Gurdwara Committee. By his order dated April 25, 1966, Shri M.L. Jain, the learned Additional District Judge repelled the objections of the Gurdwara Committee and held that there was a likelihood of the plaintiff failing in his suit only on the ground of his failure to state the basis of his claim and that this furnished a justification for allowing the plaintiff leave to file a fresh suit on the same cause of action. After recording a finding to the above effect the learned Additional District Judge concluded his order with the following words :--
'I, therefore, hereby accept the appeal and setting aside the judgment and decree of the trial Court dismiss the plaintiff's suit with costs throughout with permission to him to bring a fresh suit on the same cause of action. Decree-sheet be prepared and the file be consigned to the record room.'
Though direct and indirect arguments were addressed before me about the alleged illegality of the above mentioned orders in so far as they purport to permit the filing of a fresh suit by the Mahant, I declined to go into that question as the said order is not the subject-matter of these proceedings, and I have to take the said order as it was passed by the learned Additional District Judge for the purposes of disposing of the case before me. A certified copy of the order of the Additional District Judge has been produced before me by Shri Rao, the learned counsel for the respondent, in support of his arguments to the effect that the petitioners cannot take advantage of any observations in the judgment of Shri R. L. Lamba, Sub-Judge, Delhi, regarding the plaintiff not having been able to prove his possession over the land in dispute because the said judgment has been wiped out by the above-mentioned orders of the Additional District Judge. The petitioners did not object to the production of the certified copy.
9. Not satisfied with the orders of the Court of Shri A. Jindal, Magistrate 1st Class, dated 6-12-1965 (quoted above), the petitioners went up in criminal revision No. 13 of 1966 to the Court of Session for setting aside the said order as well as for setting aside the original order of the learned trial Magistrate dated 11-5-1965 summoning the petitioners as accused persons. By order dated March 1, 1966, the Court of Shri M.S. Joshi, Additional Sessions Judge, Delhi declined to grant either of the two reliefs and dismissed the revision petition. He refused to go into the legality of the order dated 11-5-1965 on the solitary ground that the petition for revision of that order had been preferred more than 90 days after the order and was, therefore, barred by time in that respect.
Regarding the other grievance of the petitioners, the learned Additional Sessions Judge observed that there did not appear to him to be any justification for the discharge of the accused. He held that though the Sub-Judge had given findings in favour of the accused in the civil suit (in the report of the Sub-Judge to the appellate Court) the matter was still sub judice and it was possible that Shri M. L. Jain, Additional District Judge, before whom the appeal was pending may not agree with the report. The learned Additional Sessions Judge has held that so long as the issue of title is not settled by the civil court exclusively, the accused cannot ask the criminal Court to treat the respondent as a stranger to the land and there can be no discharge of the accused at present.
He held that the criminal court (the court below) had the right to record its own finding on the point disputed before it and the discretion of the learned Magistrate in not staying the proceedings in the complaint to await the decision of the civil suit could not be interfered with. Reliance in support of the order declining to stay the criminal proceedings to await the result of the civil suit was placed on the authoritative pronouncement of the Supreme Court in M.S. Sheriff v. State of Madras, AIR 1954 SC 397. These are the circumstances which have led to the filing of the present petition in this Court.
10. At the heading before me no prayer for staying the proceedings in the criminal case was either made, or could in fact possibly have been made, in view of the fact that the civil suit of Mahant Santokh Dass, to await the decision of which stay was prayed for before the Additional Sessions Judge, has since been dismissed with costs throughout by the Additional District Judge, Delhi, on April 26, 1966. Only two questions, therefore, remain to be decided in the present proceedings, namely--
(i) Whether the order of the Magistrate dated May 11, 1965, directing the issue of process against the petitioners, as accused, persons, is contrary to law and is liable to be set aside or not; and
(ii) Whether the order of the Magistrate, dated December 6, 1965, and of Additional Sessions Judge dated 1-3-1966 refusing to discharge the petitioners under Section 253(2) of the Code of Criminal Procedure are liable to be reversed or not.
Mr. S.C. Malik, learned counsel for the petitioners, has attacked the order dated May 11, 1965, on three grounds. The first complaint of the petitioners in this respect is that the Additional District Magistrate did not comply with the mandatory provision of Section 200 of the Code of Criminal Procedure while taking cognizance of the alleged offence on the complaint of Mahant Abhe Dass inasmuch as the Additional District Magistrate did not examine the complainant, who was admittedly present before him and did not reduce the substance of his examination to writing. The relevant part of Section 200 of the Code reads as follows :--
'200. A Magistrate taking cognizance of an offence on complaint shall at once examine the complainant and the witnesses present if any, upon oath and the substance of the examination shall be reduced to writing and shall be signed by the complainant and the witnesses, and also by the Magistrate : Provided as follows :--
(a) when the complaint is made in writing, nothing herein contained shall be deemed to require a Magistrate to examine the complainant before transferring the case under Section 192;
(aa)* * *
(b)* * *
(C)* * * *'
It has not been disputed before me even by the learned counsel for the complainant-respondent that the written complaint filed by Mahant Abhe Dass was not transferred by the Additional District Magistrate to the S. D. M. Shahdara under Section 192 of the Code and that, therefore, the case does not fall within proviso (a) to Section 200 of that Code, It is even otherwise clear from the order of the Additional District Magistrate, dated June 15, 1964 (quoted in an earlier part of this judgment) that the case was sent by him to the S. D. M. Shahdara 'for enquiry and report' and was not transferred to the other court under Section 192 of the Code of Criminal Procedure. Section 192 of the Code applies only to such a case which is transferred for inquiry or trial to any Magistrate subordinate to the one who is transferring it. A case cannot be transferred under Sub-section (1) of Section 192 of the Code 'for enquiry and report.'
The fact, that the Additional District Magistrate called for a report from the S. D. M. after holding an enquiry, shows that the Additional District Magistrate retained control over the case and merely entrusted the enquiry to a subordinate Magistrate for the purposes of obtaining his report. It was held in Hafizar Rahman v. Aminal Hoque, AIR 1941 Gal 185, that the term 'inquiry' in Sub-section (1) of Section 192 of the Code is used with special reference to such inquiries as are held in connection with proceedings under Chapters VIII, XII and XVIII of the Code as distinguished from the enquiry which is contemplated by Section 202 of the Code merely for the limited purpose of ascertaining the truth or falsehood of a complaint in order to enable the Magistrate to decide whether an accused person should be summoned or the complaint against him should be dismissed under Section 203 of the Code --as was done by the Additional District Magistrate in the instant case.
He did not transfer the case at all, but merely directed an enquiry under Section 202 of the Code being held by the subordinate Magistrate. It is also clear That the S. D. M. Shahdara submitted his report to the Additional District Magistrate, who had in fact retained the case on his own file. The Magistrate to whom a case is transferred under Section 192, has no authority to return the case to the transferring court in order that the latter might issue process under Section 204 of the Code. In a case covered by Section 192, it is the duty of the transferee court to complete the trial of the case according to law. I, therefore, hold agreeing with the learned counsel for the petitioners, that the order of the Additional District Magistrate, dated June 15, 1964, was passed under Section 202 of the Code and did not amount to an order of transfer of the case to the S. D. M. Shahdara under Section 192(1) of the Code.
11. Mr. Malik further added that irrespective of whether the entrustment of the case by the Additional District Magistrate to the Sub-Divisional Magistrate, Shahdara, was under Section 192 or Section 202 of the Code, it was, in either eventuality, duty of the Additional District Magistrate to examine the complainant, who was present before him and to reduce a substance of his examination into writing, as this part of the duty of the Additional District Magistrate is stated to be a condition precedent for the said Magistrate taking cognizance of an offence on a complaint. Mr. M.M. Rao, learned counsel for the complainant-respondent, did not dispute the legality of the proposition enunciated by Mr. Malik, but urged on the authority of a judgment of Lumsden, J., in Mehr Chiragh Din v. Emperor, AIR 1924 Lah 258, that the use of the word 'shall' in Section 200 of the Code does not render an omission to examine a complainant an illegality as distinguished from a mere irregularity.
He also made a reference to a recent Single Bench judgment of Andhra Pradesh High Court In re. R. Matameswara Rao, AIR 1957 Andh Pra 4, wherein it was held that the mere fact, that the complainant was not examined on oath at once did not vitiate the proceedings and that this only amounted to an irregularity curable by the provisions of Section 537 of the Code. On the other hand, Mr. Malik has 'referred to a Division Bench judgment of the Calcutta High Court in Abhoyeswari Debi v. Kishori Mohan Bannerjee, ILR 42 Cal 19: (AIR 1914 Cal 479), to support the proposition that when process is issued without examining the complainant, the order for the issue of process is really without jurisdiction.
The facts of the Abhoyeswari Debi's case ILR 42 Cal 19: (AIR 1914 Cal 479) appear to me to be substantially distinguishable from the facts before me. In that case a written complaint had been presented by an agent of a pardanashin lady and the complaint was not even signed by her nor was any power of attorney filed before the Magistrate. It was in those circumstances that the Division Bench of the Calcutta High Court held that if the Magistrate issued the process without examining the complainant, he violated the safeguard provided by Section 200 of the Code and the Magistrate had no power to issue the process in such a case. I am, however, bound by an unreported Single Bench judgment of this Court, D/-July 20, 1954, in Criminal Misc. No. 189-D of 1953 (Punj), Vidya Vati v. Chambeli Devi, wherein it was held following the judgment of the Calcutta High Court in Abhoveswari Debi's case ILR 42 Cal 19: (AIR 1914 Cal 479) that 'in enacting Section 200 of the Code of Criminal Procedure, the Legislature has provided a very valuable, safeguard, which should be scrupulously observed.'
The learned Judge further held in Vidya Vati's case, Cri. Misc. No. 189-D of 1953 D/-20-7-1954 (Punj) that non-compliance with the provisions of Section 200 of the Code does not by itself vitiate the proceedings unless it has occasioned failure of justice. In that particular case, failure of justice was held to have been, occasioned on account of the fact that beyond the issue of process to the accused person practically no other proceedings had been taken and that being the position of the matter the criminal proceedings were quashed by this Court from the stage at which the process was issued to the accused. Reliance was also placed by the learned Judge, in support of the course adopted by him, on a judgment of the Patna High Court in Emperor v. Heman Gope, AIR 1920 Pat 232.
As observed earlier the proceedings in the instant case have also not proceeded far enough to stand in the way of interference with the order dated May 11, 1965, of the Magistrate, on that ground. But the distinction, which appears to me to be significant, is that neither in the Calcutta case, ILR 42 Cal 19: (AIR 1914 Cal 479) nor in the case decided by Harnam Singh, J., Cri. Misc. No. 189-D of 1953 D/-20-7-1954 (Punj) was the statement of complainant recorded at all before the issue of process, but in the instant case the complainant has admittedly been examined by the S. D. M. Shahdara during the enquiry proceeding under Section 202 of the Code, there is still 'another difficulty in the way of the petitioners claiming relief on this ground.
Even if it could be held following the judgment of this Court in Vidya Vati's case Cri. Misc. No. 189-D of 1953 dated 20-7-1954 (Punj) that failure of justice is deemed to have been occasioned to the petitioners, it may not be appropriate to interfere with the order in question under Section 561-A of the Code when the petitioners have failed to avail of their statutory remedy against the order of the Magistrate dated May 11, 1965, by recourse to proceedings for the revision of that order under Sections 435-439 of the Code and when such proceedings have rightly been held by the Additional Sessions Judge to have now become barred by time. In re, Gurunath Narayan Betgori, AIR 1924 Bom 485, a Division Bench of the Bombay High Court held that High Court cannot make any order in exercise of its inherent powers under Section 561-A of the Code, if it would result in granting relief to a party for which the statutory remedy is barred by time. I am in respectful agreement with the Division Bench judgment of the Bombay High Court in Gurunath Narayan Betgori's case AIR 1924 Bom 485 and hold that in any event it is not open to the petitioners to invoke the inherent jurisdiction of this court under Section 561-A of the Code for setting aside or quashing an order, which they could have attacked in a revision petition if they had chosen to file one within the period of limitation allowed by law for invoking that remedy. I am, therefore, unable to accede to the request of the counsel for the petitioners to quash the order dated May 11, 1965, of the Magistrate, on this ground.
12. The second attack by Mr. Malik was directed against the order of the Additional District Magistrate dated April 24, 1965. The argument was that after considering the report of the Sub-Divisional Magistrate, the learned Additional District Magistrate could either dismiss the complaint under Section 203 of the Code, if in his judgment there was no sufficient ground for proceeding further (a course, which the Additional District Magistrate did not adopt) or could have directed the issue of process for compelling the attendance of the petitioners and then either tried the case himself or transferred it to some other Magistrate.
The defect pointed out in the order of the Additional District Magistrate dated April 24, 1965, is that as soon as the learned Magistrate decided to postpone the issue of process for compelling the attendance of the petitioners, he was bound to follow the mandatory provision of Section 202(1) of the Code requiring the Magistrate to record in writing the reasons for such postponment. Reliance was placed by Mr. Malik on a judgment of Knox, Ag. C. J., in Madho Gir. v. Rashid Ahmad, AIR 1917 All 91, wherein it was held that 'a Magistrate taking cognizance of a case, who proceeds under Section 202, must record the reasons showing why he is not satisfied as to the truth of the complaint of the offence of which he is taking cognizance'.
It is, however, significant that in the same case it was held that where an accused person has not in any way been prejudicied by an irregularity, the High Court is not expected to interfere in revision on the ground of that irregularity. Though the scope of jurisdiction of this Court under Section 561-A of the Code may certainly be wider than its revisional jurisdiction under Section 439 in certain respects, I am inclined to hold that a mere irregularity in procedure, which does not justify interference in revision, will not normally justify interference with the course of the trial of a case in exercise of the inherent jurisdiction of this Court under Section 561-A of the Code. Mr. Malik tried to relate this particular objection to both the orders of the Additional District Magistrate. Be that as it may, I am not able to persuade myself to hold that an irregularity of this type could have caused any serious prejudice to the petitioners in their trial so as to justify interference with the proceedings pending in the trial court on that score at this stage, as the said irregularity has in no way occasioned any failure of justice, to the petitioners.
13. The last ground on which the order dated May 11, 1965, is sought to be quashed is that the Additional District Magistrate could not split up this duty under Section 204 of the Code so as to give a finding to the effect that there was sufficient ground for proceedings against the petitioners, but instead of directing issue of summonses to the petitioners, transfer the case without any such direction to the court of Shri C.N. Narula, Magistrate 1st Class, Delhi, 'for disposal according to law'. By having done so, me Additional District Magistrate is said to have violated the requirements of Sub-section (1) of Section 204 of the Code. Mr. Rao has invited my attention to a Full Bench Judgment of the Patna High Court in Krishnadeo Prasad v. Mt. Budhni, AIR 1965 Pat 1, wherein it was held that the Magistrate, to whom a case was transferred, may also pass an order under Section 203 of the Code. In any event, I am not inclined to interfere with the order dated May 11, 1965, for the reasons, already recorded by me in connection with the first objection of Mr. Malik. I am particularly disinclined to interfere with the said order at this stage as the petitioners did not avail of their remedy under Chapter 32 of the Code within the period of limitation allowed by Article 131 of the Limitation Act, i. e., within ninety days from May 11, 1965.
14. For the aforesaid reasons, the prayer of the petitioners to quash the order dated May 11, 1965, under Section 561-A of the Code is declined. In this view of the matter it is wholly unnecessary to deal with the question of the scope of the jurisdiction of this Court under Section 561-A of the Code in connection with which matter both sides have relied on an authoritative pronouncement of their Lordships of the Supreme Court in R. P. Kapur v. State of Punjab, AIR 1960 SC 866, and on a judgment of this Court (Khanna, J.) in Jaswant Rai v. Smt. Kanwal Rani, 1963-65 Punj LR 667.
15. This takes me to the revision petition under Section 439 of the Code against the order dated December 6, 1965, of the Magistrate, refusing to discharge the accused. The contentions of the petitioners on this score appear to be substantially well founded. From the history of the case given in the opening part of this judgment, it is abundantly clear that the real dispute to the property as between the complainant (Mahant Abhe Dass, who represents Mahant Santokh Dass as an agent) on the one hand and the Gurdawara Prabandhak Commitee (whose office bearers and a Sewadar are the accused-petitioners) on the other, relates to the title to the land on a part of which the Gurdawara is situated and on another part of which the alleged criminal trespass was committed by the petitioners.
In the criminal proceedings, the question of title is not directly relevant. Even in case of a disputed title, if the complainant was in possession of the property, the petitioners would not have been justified to forcibly dispossess him. In fact Mr. Rao, learned counsel for the plaintiff, himself emphasised repeatedly that it was the question or possession, which was relevant in the criminal case and not that of title, and it was on this basis that he argued that the criminal court should completely ignore the judgment of the civil court dismissing the suit of Mahant Santokh Dass. He referred in this connection to the judgment of a Full Bench of the Lahore High Court in B. N. Kashyap v. Emperor, AIR 1945 Lah 23, wherein it was held that a finding on certain facts by a civil court in an action in personam is not relevant before the criminal court when it is called upon to give a finding on the same facts and that similarly, the finding on certain facts by the criminal court is not relevant before the civil court when it is called upon to give a finding on those facts.
There may be no dispute with the proposition of law laid down by the Full Bench of the Lahore High Court. The fact, however, remains that if the title and possession of the property in dispute were to be admittedly held by the Gurdawara Prabhandhak Committee or were to be found to be not with the complainant or his agent at the time of the commission of the alleged offence, it could not be held that there was any prima facie case against the petitioners under Sections 447, 379, 427/34 of the Indian Penal Code or under any of those sections. One of the essential ingredients of the offence of criminal trespass (defined in Section 441 of the Indian Penal Code) is that the accused must enter into or upon property 'in the possession of another' with intent to commit an offence or to intimidate insult or annoy any person 'in possession of such property.'
If, therefore, the petitioners, as office-bearers or employees of the Gurdawara Prabhandhak Committee, were already in possession of the property in question and the complainant or his agent was not in possession of such property at the relevant time, the petitioners would certainly have been entitled to be discharged under Section 253(2) of the Code. If title in the land vested in the Gurdwara Prabandhak Committee the trees on it would also belong to the Committee and, cutting or removing them, even if proved, would not amount to a theft. Nor would going into one's own property for cutting one's own trees, even if proved, amount to an offence of 'mischief' (as defined in Section 425 of the Indian Penal Code punishable under Section 427 of the same Code).
16. A tendency is often found amongst litigants to bring civil disputes into criminal courts under the garb of allegations of commission of offences like, criminal trespass and cheating. In Gobind Prasad, (1879) ILR 2 All 465, Straight J., while dealing with the offence of criminal trespass defined in Section 441 of the Indian Penal Code observed as follows :--
'The unusually vague and elastic language used in Section 441, which, if not closely scrutinized and strictly interpreted, might lead to its application to sets of facts or circumstances, for which it was never intended by the Legislative authorities who framed it. For it is easy enough to conceive multitudinous cases, some approaching the verge of absurdity, that would rail within the letter, not the spirit of the Section, and which no one would for a moment consider fit subject even for civil proceedings, much less for a prosecution in a criminal Court. To lay down any rule, as to the extent to which its operation should be limited, is scarcely possible, but it is plain that its scope must be confined within those bounds that common sense and sound reason dictate.'
Possession referred to in Section 441 must be actual physical possession of some person other than me alleged trespasser. This must include the right to eject or exclude any other person from the property in question. Where an owner enters into his own land, permissively used or occupied by someone else, but not in the possession of another, he commits no offence. The complaint in the instant case was expressly based on the alleged findings in favour of Mahant Santokh Dass, recorded by the court of Shri R.L. Lamba, Sub-Judge 1st Class, Delhi. In paragraph 9 of the complaint it was stated that the accused had no interest or title in the land, on which they were alleged to have committed trespass. As stated by the learned counsel for the complainant, the question of title is not relevant to the criminal trial.
Even so the judgment of the court of Mr. Lamba, on which sole reliance was placed for accusing the petitioners of having committd the alleged offences, has admittedly been set aside by the civil appellate Court. What is worse for the complainant is that the said suit had been voluntarily withdrawn by Mahant Santokh Dass at the appellate stage by making an application in which he stated in writing that on the findings recorded by the court, his suit was liable to be dismissed. In that situation, when the petitioners applied to the learned Magistrate for discharging them under Section 253(2) of the Code, the Magistrate rightly pointed out in his order dated December 6, 1965, that his court was not to sit in judgment over the findings of the civil Court, but was only concerned with possession and criminal tresspass and that the matter of title had to be decided by the competent civil Court.
His order declining to stay the criminal case is no more in dispute before me. But I think that on the facts and allegations, which had come before the Court on the record of this case till December 6, 1965, and thereafter before the Additional Session Judge on 1-3-1966, it was clear that the criminal charges against the petitioners appeared to be groundless. The petitioners have admittedly no personal interest in the property. The allegations against them were that they were acting on behalf of and in the interest of the Gurdwara Prabandhak Committee. The suit filed by Mahant Santokh Dass for a declaration to the effect that he was in possession of the land in dispute, of which possession was being claimed by the Gurdwara Prabandhak Committee, has been dismissed.
In the face of the decree of the civil Court in the civil suit of Mahant Santokh Dass, it is clear that the complainant had no right to eject the petitioners or to exclude them from the land in question. Possession alone is relevant, as pointed out earlier, for the purposes of deciding whether criminal trespass has been committed or not. According to the complainant's own case, made out in the complaint, he was not in actual possession of the property at the time of the commission of the alleged offence. This shows that even if the allegation of the complainant against the petitioners read with the admitted subsequent events are taken at their face value, they do not disclose the commission of any offence by the petitioners.
I have also scanned through the evidence so far recorded at the trial of this case. Even if the allegations made therein are deemed to be true, they do not appear to disclose the commission of any of the offences with which the petitioners are sought to be charged. The charges against the petitioners were, therefore, clearly groundless and the learned Magistrate, in my opinion, unjustifiably declined to exercise his jurisdiction under Section 253(2) of the Code of Criminal Procedure in refusing to discharge the accused. The learned Additional Sessions Judge appears to have refused to discharge the petitioners on the ground that though the report of the Sub-Judge was in their favour, the matter was still sub judice and the District Court might not agree in the then pending appeal with the findings of the Sub-Judge. That consideration has since melted away in favour of the petitioners.
The plaintiff Mahant not only did not question the findings of the Sub-Judge, but afraid of them, withdrew his suit and got it dismissed. Mr. Rao admitted that he has not re-opened the matter in a fresh suit, even if he could do so. Mr. Malik stated that such a suit would be barred by time. Be that as it may, the situation now is that the Mahant has withdrawn from the Court his claim of having been in possession of the property. The only other ground on which the Additional Sessions Judge dismissed the revision petition against the order dated 6-12-1965, i.e., that the innocence of the accused would depend on decision of title to the property is erroneous in law. The order of the Additional Sessions Judge in this respect has, therefore, to be set aside.
17. For the foregoing reasons, I reverse the orders of the learned Magistrate dated December 6, 1965, and of the Additional Sessions Judge dated 1-3-1966, and direct that all the three petitioners stand discharged under Sub-section (2) of Section 253 of the Code of Criminal Procedure in respect of the offences alleged by the respondent to have been committed by them.