@JUDGMENTTAG-ORDER
D.K. Paliwal, J.@mdashInvoking the extraordinary jurisdiction of this Court u/s 482 of the Code of Criminal Procedure, petitioners have filed this petition to quash the order dated 27/12/2011 passed by J.M.F.C. Vijaypur District Sheopur in private complaint No. 705/2011, whereby cognizance for the offence punishable u/s 379 of I.P.C. has been taken against the petitioners. The facts in brief are that respondent has filed a private complaint against the petitioners alleging that respondent is owner of land bearing survey No. 1444 area about 7.5 Bigha. Roop Singh and Bharat were the Bataidars, who had sown gram crop on the aforesaid land. On 1.04.2011 and 2.04.2011 the crop was harvested and was kept in the field. It is further alleged that on 2.04.2011 in the night both Bataidars, Roop Singh and Bharat, went to their house for sleeping and when they reached on the next day in the morning, they found that the petitioners were keeping the crop of the complainant in their house situated near the agricultural field. The Bataidars of the complainant objected, then petitioners abused them and threatened them to kill. The Bataidars informed the incident to the brother of the complainant, who reached to police station for lodging the report. He made written complaint, but no receipt has been given. Police has not taken any action, therefore, private complaint has been filed by the complainant u/s 379 of the I.P.C. against the petitioners. Learned J.M.F.C. after recording the statements u/s 200 and 202 of Cr. P.C. has taken the cognizance against the petitioners for the offence punishable u/s 379 of the I.P.C. and summoned the petitioners through bailable warrant.
2. It is submitted by the learned counsel for the petitioners that petitioners are in regular and permanent possession of the agricultural land bearing survey Nos. 1444, 1443 and 1415 admeasuring 7.5 Bigha. The respondent has earlier filed a civil suit for possession and permanent injunction in respect of aforesaid land claiming his rights over the said land. It was the case of the respondent that petitioners are in illegal possession of the said land. On the basis of the pleadings of parties, the trial Court has framed issues and thereafter parties led their evidence. The trial Court decreed the suit, against which the petitioners have preferred a civil appeal, which was allowed and the matter was remanded back to the trial Court. Thereafter again the suit was decreed which was again challenged by the petitioners before the District Judge, Sheopur and the appeal has been dismissed against which the petitioners have filed Second Appeal bearing No. 380/11 which is pending before this Court.
3. It is further submitted that this Court has granted interim relief staying the execution of the judgment and decree vide order dated 11/10/2011. The respondent with a view to harass the petitioners has made a false complaint to SHO, Police Station, Ghaswani, which was not entertained by the Police Officer. Thereafter, abusing the process of law, a false complaint has been filed. Learned J.M.F.C. without following the procedure laid down in Section 156(3) of the Cr.P.C. has taken cognizance against the petitioners for the offence punishable u/s 379 of I.P.C. which is patently illegal and contrary to the provisions of Cr. P.C. and record. It is well settled position of law that dispute with regard to the agricultural land is purely civil litigation and no person should be allowed to file such a frivolous complaint and abuse the process of law. The complaint made against the petitioners is wholly concocted and filed with a ulterior motive to harass the petitioners. It is prayed that the order passed by the learned Magistrate dated 27/12/2011 in private complaint no. 705/11 be set aside.
4. Learned counsel for the respondent has submitted that the petition is not maintainable. The petitioners have remedy to challenge the order taking cognizance against them by the J.M.F.C. by way of revision before the Sessions Court, but they have not preferred any revision.
5. I have perused the record. Undisputedly the civil litigation between the parties is pending in this Court in Second Appeal No. 380/2011. The petitioners have invoked the extraordinary powers of this Court u/s 482 of Cr. P.C. for quashing the order dated 27.12.2011 by which cognizance u/s 379 of I.P.C. has been taken against them. The learned counsel for the respondent has submitted that this petition is not maintainable because remedy of challenging the order whereby cognizance has been taken against the petitioners on the private complaint is available to the petitioners by way of revision. The learned counsel has relied upon the decision of the Hon''ble Apex Court rendered in the matter of
20. The jurisdiction of the court u/s 397 can be exercised so as to examine the correctness, legality or propriety of an order passed by the trial court or the inferior court, as the case may be. Though the section does not specifically use the expression "prevent abuse of process of any court or otherwise to secure the ends of justice", the jurisdiction u/s 397 is a very limited one. The legality, propriety or correctness of an order passed by a court is the very foundation of exercise of jurisdiction u/s 397 but ultimately it also requires justice to be done. The jurisdiction could be exercised where there is palpable error, non-compliance with the provisions of law, the decision is completely erroneous or where the judicial discretion is exercised arbitrarily. On the other hand, Section 482 is based upon the maxim quando lex a liquid alicui concedit, concedere videtur id sine quo res ipsa esse non potest i.e. when the law gives anything to anyone, it also gives all those things without which the thing itself would be unavoidable. The section confers very wide power on the Court to do justice and to ensure that the process of the court is not permitted to be abused.
21. It may be somewhat necessary to have a comparative examination of the powers exercisable by the court under these two provisions. There may be some overlapping between these two powers because both are aimed at securing the ends of justice and both have an element of discretion. But, at the same time, inherent power u/s 482 of the Code being an extraordinary and residuary power, it is inapplicable in regard to matters which are specifically provided for under other provisions of the Code. To put it simply, normally the court may not invoke its power u/s 482 of the Code where a party could have availed of the remedy available u/s 397 of the Code itself. The inherent powers u/s 482 of the Code are of a wide magnitude and are not as limited as the power u/s 397. Section 482 can be invoked where the order in question is neither an interlocutory order within the meaning of Section 397(2) nor a final order in the strict sense. Reference in this regard reference can be made to Raj Kapoor v. State. In that very case, this Court has observed that inherent power u/s 482 may not be exercised if the bar under Sections 397(2) and 397(3) applies, except in extraordinary situations, to prevent abuse of the process of the Court. This itself shows the fine distinction between the powers exercisable by the Court under these two provisions. In that very case, the Court also considered as to whether the inherent powers of the High Court u/s 482 stand repelled when the revisional power u/s 397 overlaps. Rejecting the argument, the Court said that the opening words of Section 482 contradict this contention because nothing in the Code, not even Section 397, can affect the amplitude of the inherent powers preserved in so many terms by the language of Section 482. There is no total ban on the exercise of inherent powers where 480 abuse of the process of the court or any other extraordinary situation invites the court''s jurisdiction. The limitation is self-restraint, nothing more. The distinction between a final and interlocutory order is well known in law. The orders which will be free from the bar of Section 397(2) would be the orders which are not purely interlocutory but, at the same time, are less than a final disposal. They should be the orders which do determine some right and still are not finally rendering the court functus officio of the lis. The provisions of Section 482 are pervasive. It should not subvert legal interdicts written into the same Code but, however, inherent powers of the Court unquestionably have to be read and construed as free of restriction.
22. In Dinesh Dutt Joshi v. State of Rajasthan the Court held that: (SCC p. 573, para 6)
6. ... [Section 482] does not confer any new power, but only declares that the High Court possesses inherent powers for the purposes specified in the section. As lacunae are sometimes found in procedural law, the section has been embodied to cover such lacunae wherever they are discovered. The use of extraordinary powers conferred upon the High Court under this section are however required to be reserved, as far as possible, for extraordinary cases.
23. In
6. However, considering the fact that civil litigation is pending between the parties, the petitioners are claiming their possession over the land and the complainant is claiming his possession, even if it is accepted for the sake of argument that petitioners took away the crops, the question remains whether the alleged act of the petitioners falls within the purview of Section 379 of IPC. The offence of theft consists in the dishonest taking of any movable property out of the possession of another without his consent. Dishonest intention exists when the person so taking the property intends to cause wrongful gain to himself or wrongful loss to the other. This intention is known as animus furandi and without it the offence of theft is not complete.
7. The Hon''ble Apex Court in the matter of
Now the ordinary rule that mens rea may exist even with an honest ignorance of law is sometimes not sufficient for theft. A claim of right in good faith, if reasonable, saves the act of taking from being theft and where such a plea is raised by the accused it is mainly a question of fact whether such belief exists or not. This Court in Cri. Appeal No. 31 of 1961 in the matter of
It is settled law that where a bona fide claim of right exists, it can be a good defence to a prosecution for theft. An act does not amount to theft, unless there be not only no legal right but no appearance or colour of a legal right.
By the expression "colour of a legal right" is meant not a false pretence, not a complete absence of claim but a bona fide claim, however weak.
If there be in the prisoner any fair pretence of property or right, or if it be brought into doubt at all, the court will direct an acquittal.
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Niyogi, J. in his judgment also referred to some of the decisions of the Calcutta High Court and we find ourselves in particular agreement with the following statement of the law in
It is not theft if a person acting under a mistaken notion of law and believing that certain property is his and that he has the right to take the same................... removes such property from the possession of another.
8. In the instant case as noticed earlier, though the suit of the respondent claiming possession and permanent injunction against the petitioners in respect of survey Nos. 1443, 1444 and 1445 was decreed by the Courts below, but this Court vide order dated 11.10.2011 passed in S.A. No. 380/11 granted the stay in favour of the petitioners and hence it cannot be said that the possession of the petitioners over the said land was illegal. Hence, It can safely be said that there was an absence of the animus furandi and the circumstances bring this case within the rule that where the taking of movable property in the assertion of a bona fide claim of right, the act, though it may amount to a civil injury, does not fall within the offence of theft.
9. In view of the above discussion, submission of learned counsel for the respondent that alternative remedy of filing revision is available, therefore, the petition u/s 482 of Cr.P.C. is not maintainable, cannot be accepted because prima facie it appears that the dispute between the parties is of civil nature and continuance of criminal proceeding on account of dispute of civil nature, certainly amounts to an abuse of the process of the Court. In view of aforesaid, continuance of proceedings against the petitioners would be an abuse of the process of the Court. Hence, this petition is allowed and criminal proceedings of private complaint No. 705/2011 pending before JMFC, Vijaypur, are hereby quashed.
