R.G. Vaidyanatha, J.@mdashThis is a writ petition challenging the issue of process in Criminal Case No. STC 726/1994 on the file of the Judicial Magistrate, First Class Court No. 3, Solapur.
Heard the learned Counsel for the petitioner and the learned P.P. for Rule 1. None appeared for Rule 1.
2. Few facts which are necessary for the disposal of this case are as follows:
Respondent No. 1 filed a private complaint in the court below against the petitioners alleging offence u/s 442, 448, 349 read with Section 34 of the Indian Penal Code. The learned Magistrate recorded sworn statement of the complainant and referred the complaint to the police for investigation u/s 202 of the Code of Criminal Procedure. The police took up the investigation and made inquiry and submitted a report stating that the dispute is of a civil nature. However, the learned Magistrate did not accept the police report and issued process against the accused for an offence u/s 442 of the IPC. Being aggrieved by the issue of process, petitioners challenged the same in Criminal Writ Petition being Criminal Writ Petition No. 406 of 1995. When the matter came up for admission before this Court on 13.4.1995, the petition was permitted to be withdrawn in view of the decision of the Apex Court in
When the matter went before the learned Magistrate the accused made an application for dropping the proceedings. By the impugned order dated 31.10.1995, the learned Magistrate rejected the application. Being aggrieved by that order the accused have preferred this writ petition.
3. The learned Counsel for the petitioners has questioned the correctness and legality of the impugned order. The learned Public Prosecutor appearing for the State has supported the impugned order. As already stated none appeared for the complainant-Respondent No. 1.
4. The learned Magistrate has observed in the impugned order that the stage of hearing before charge has not yet arisen and therefore, the application is premature and rejected it. In my view, the order is wholly erroneous. The question of framing charge or recording evidence before the charge does not arise in summons case. The learned Magistrate has issued process u/s 442 of the IPC which itself is incorrect. Section 442 of the IPC is not a punishing Section at all. The summons should have been issued u/s 498 of the IPC which is a summons case. In a summons case or summons procedure, the question of framing charge or recording evidence before the charge does not arise at all. That is why the Apex Court has observed in Mathew''s case that even in summons case, the accused can file an application for recalling the process or dropping the proceedings on the ground that no offence is made out. Inspite of the observations of the Apex Court, the learned Magistrate has not considered the merits of the case but rejects the application only on the ground that it is premature. Hence, on this ground, the impugned order is not sustainable and liable to be set aside. Even if it is taken for granted that the process was issued u/s 342 of the IPC even then summons procedure is applicable and the question of framing charge or recording of evidence before the charge docs not arise.
5. Now coming to the merits of the case, it is seen that the property in dispute is the first floor of the building. Admittedly, the accused are tenants of the ground floor since 40 years. According to the complainant, the accused broke open the lock of the first floor and occupied it on 8.3.1994 but the defence is that the accused occupied the first floor as tenants who were inducted by complainant''s brother Shri Vishwanath.
The police made an inquiry and recorded statements of the witnesses and they have also recorded the statement of Vishwanath who has clearly stated that he has let out the first floor to the accused. The property is not divided. When the property is undivided one brother has filed a complaint alleging criminal trespass against the accused whereas the other brother Vishwanath is saying that he has let out the first floor to the accused. It is, therefore, seen that the dispute whether the accused have committed trespass or whether they occupied the room as tenants of Vishwanath is purely a civil dispute. As rightly observed in the police report, the criminal court cannot decide the legality of the lease deed between Vishwanath and the accused. Even if Vishwanath has exceeded his powers in leasing out a joint property or ancestral property, in favour of the accused, the occupation of the room by the accused cannot amount to trespass, much less criminal trespass. If it is a case of trespass, the remedy of the complainant is to file a suit for eviction and ask for damages or mesne profits against the accused. The complainant was not well advised in approaching the criminal Court for redressing a civil wrong. In view of the statements recorded by the police during the inquiry u/s 202 of the Cr.P.C. it is quite clear that it is a case of dispute between two brothers of whom one has let out disputed property to the accused. By no stretch of imagination, the allegations in the complaint can be brought within the mischief of Section 448 of the IPC. It will be sheer abuse of the process of the Court if a Civil dispute is allowed to be thrashed out in a criminal forum. Hence, the issue of process is liable to be quashed.
6. In the result, the writ petition is allowed, The issue of process in Criminal Case No STC 726/1994 in the Court of the Judicial Magistrate, First Class No. 3, Solapur is hereby quashed since the dispute is of a Civil Nature. However, this order is without prejudice to the rights of the complainant to approach the Civil Court for appropriate relief according to law.
