Shrikant Purshottam Paranjape & Others v/s State of Maharashtra & Another Criminal Writ Petition Nos. 2827 of 2013, 2828 of 2013 with Criminal Revision Application Nos. 347 of 2013, 348 of 2013

Shrikant Purshottam Paranjape & Others v/s State of Maharashtra & Another
Criminal Writ Petition Nos. 2827 of 2013, 2828 of 2013 with Criminal Revision Application Nos. 347 of 2013, 348 of 2013
decided on
30-09-2014
at
High Court of Judicature at Bombay by THE HONOURABLE JUSTICE ABHAY M. THIPSAY
advocates
For the Applicant: Shirish Gupte, Senior Advocate a/w. Prasad B. Kulkarni, Abhijeet A. Desai a/w. Vrushali L. Maindad, Advocates. For the Respondents: Deepak Thakre, A.P.P.
Equivalent Citation(s)
2014 (4) BCR(Cri) 777
Judgment
Oral Order:
1. These two writ petitions and these two revisions applications can be disposed of conveniently by this common order as the parties are the same and the challenge in all these proceedings is to two identical orders dated 5th July, 2013, passed by the learned Additional Sessions Judge, Pune, in Criminal Revision Application Nos.535 of 2011 and 536 of 2011.
2. By consent, rule is issued in both the petitions and is made returnable forthwith. By consent, the revision applications are admitted and taken up for hearing finally forthwith.
3. The petitioners in criminal writ petition no.2827 of 2013 and 2828 of 2013 are the accused in R.C.C.No.04002464 of 2011, pending before the Judicial Magistrate, First Class, at Pune. The said case arises on a complaint filed by the respondent no.2 in these petitions, who is also the applicant in the revision application nos.347 and 348 of 2013.
4. For the sake of convenience and clarity the respondent no.2 in the writ petitions who is the applicant in the revision applications, shall be referred to as ‘the complainant’; and the petitioners in writ petition, who are the respondents in the revision applications, shall be referred to as ‘the accused’.
5. The complainant filed a complaint against the accused alleging commission of offences punishable under Sections 406 IPC, 409 IPC, 420 IPC, 447 IPC, 454 IPC, 465 IPC, 467 IPC, 468 IPC read with Section 34 of the IPC. The learned Magistrate, on examining the complainant on oath and on examining the documents produced by him, ordered process to be issued against all the accused persons with respect to the offences punishable under Sections 447 IPC, 454 IPC, 465 IPC, 467 IPC, 468 IPC read with Section 34 of the IPC.
6. Being aggrieved thereby, the accused persons approached the Court of Sessions by filing two different revision applications i.e. some of them filed one revision application and some of them filed the other (Revision Application Nos.535 of 2011 and 536 of 2011). The learned Sessions Judge disposed of both the revision applications by separate but fully identical orders. The learned Additional Sessions Judge was of the view that no case for proceeding with respect to any of the offences against any of the accused, except the offence punishable under Section 447 of the IPC read with Section 34 of the IPC was made out. He was of the view that a case in respect of an offence punishable under Section 447 of the IPC was, however, made out against the accused persons. He, therefore, quashed the process so far as it related to the other offences but maintained the process so far as it related to the offence punishable under Section 447 of the IPC.
7. The accused persons were not satisfied with the limited success which they had before the revisional Court and have therefore filed the present writ petitions challenging the order passed by the learned Additional Sessions Judge in revision, insofar as it maintains the process issued by the Magistrate against the accused persons with respect to the offence punishable under Section 447 of IPC read with Section 34 of IPC. The complainant, obviously, is aggrieved by the order passed by the Sessions Court insofar as it quashed the process issued against the accused persons with respect to all other offences except the one punishable under Section 447 of the IPC read with Section 34 of IPC. This is how these four proceedings arise out of one and the same order.
8. I have heard Mr.Shirish Gupte, learned counsel for the accused persons. I have heard Mr.Abhijeet Desai, the learned counsel for the complainant. With their assistance, I have gone through the complaint, the other annextures to the petition and more particularly the order passed by the Magistrate issuing process, as also the order passed by the learned Additional Sessions Judge in revision.
9. The complainant’s case, in brief, is that he owns a certain land which had been given to his ancestor by the then Governor of Bombay in the year 1870. That the accused no.1 Sudhir Shankar Sable, with the help of some anti social-elements, got prepared bogus documents in respect of the said land, behind the back of the complainant. That, based on such bogus documents, the accused persons got his name and also the names of some other accused, entered into the revenue records as the owners/persons in possession of the said land. That, when the complainant learnt about these activities of the accused persons, he filed a civil suit, which is pending. That, on 24th September, 2005, an interim order to maintain status-quo has been passed by the civil court. That, inspite of being aware of this position, the accused persons with the object of grabbing the property of the complainant unauthorizedly trespassed in the said land and put construction material on the land. When the complainant questioned the persons who were found by him on the site, the complainant was threatened by the accused nos.1 and others. That, the accused no.1, who was contacted on telephone by the persons who had trespassed in the land of the complainant, also threatened the complainant on telephone.
10. Mr.Gupte, learned counsel for the accused persons contended that the land in question has been validly purchased by the accused persons. The learned counsel for the complainant, on the other hand, submitted that the documents on the basis of which the accused persons are claiming a right over the land in question are bogus, invalid and inoperative. In the facts and circumstances of the case, it is not necessary to go into those aspects.
11. The question is whether on the basis of the allegations levelled by the complainant with respect to the forgery and connected offences, there are sufficient grounds for proceeding against the accused persons.
12. I find that in the complaint, there is no mention of any specific document as a forged document. The grievance of the complainant is basically that the documents on the basis of which the ownership or possessory rights over the property are claimed, are not valid in law. The learned counsel for the complainant was unable to point out any particular document as a “false document” supporting the allegation of forgery, and his basic contention appears to be that the recitals in some of the documents, on the basis of which claim of rights over the property is being made, are false. It is quite elementary that merely because the recitals in a documents are false, that would not make it a false document as defined in Section 464 of the IPC.
13. I have examined the order passed by the learned Additional Sessions Judge. He has discussed this aspect of the matter in paragraphs 11 and 12 of his order.
14. In my opinion, the conclusion arrived at by him -namely:- that there was no case in respect of an offence of forgery and the connected offences i.e. forgery of a valuable security, forgery for the purpose of cheating, etc., is proper and legal. Even before this Court, the learned counsel for the complainant could not substantiate the case of forgery. Therefore, the order passed by the Additional Sessions Judge quashing process with respect to the offences punishable under Sections 465 IPC, 467 IPC, 468 IPC read with Section 34 of IPC, is proper and legal.
15. The offence punishable under Section 454 of the IPC was not disclosed at all from the complaint and the quashing of the process with respect to that offence, is also proper and legal. In fact, no arguments in that regard were advanced before this Court.
16. The only question that now remains is whether the order passed by the Additional Session Judge, insofar as, it maintains the order issuing process with respect to the offence punishable under Section 447 of IPC read with Section 34 of IPC, is proper and legal.
17. Section 447 of the IPC provides for punishment for the offence of criminal trespass which has been defined in Section 441 of the IPC. Section 441 of IPC reads as under:
‘Criminal trespass.- Whoever enters 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, or having lawfully entered into or upon such property, unlawfully remains there with intent thereby to intimidate, insult or annoy any such person, or with intent to commit an offence, is said to commit “criminal trespass”.’
18. It is clear that to constitute criminal trespass the entry in the property in possession of another must be;
(i) with intend to commit an offence; or
(ii) to intimidate, insult or annoy any person in possession of the such property.
It is trespass with the requisite intention, as mentioned in the said section, that would amount to criminal trespass. Here, the case of the complainant itself is that the trespass allegedly committed by the accused persons is for the sake of trespass. In other words, the trespass has, allegedly, been made with the object of grabbing the property by falsely asserting a right or claim over the same. Whether the right actually exists or not, is quite immaterial in the context of the correctness of issue of process. Thus, the acts attributed to the accused persons would amount to only civil trespass and not criminal trespass. Unlawfully taking possession of the property in somebody else’s possession, simpliciter, has not been made an offence punishable under the Indian Penal Code. It is for the Legislature to decide whether such cases should be made punishable. (There have been State amendments (Orissa & U.P.) to Section 441 to make trespass with the intention of taking unauthorised possession of property an offence). The learned counsel for the complainant attempted to suggest that even under section 441 of the IPC, as it stands, such trespass would amount to criminal trespass, but I am unable to agree with him. If this theory is accepted, the distinction between civil trespass and criminal trespass would be abolished and every trespass can be termed as ‘criminal trespass’.
19. In the result, I find that the order passed by the Additional Sessions Judge, insofar as it maintains the order issuing process with respect to the offence punishable under Section 447 of the IPC read with Section 34 of the IPC, is not in accordance with law and needs to be interfered with.
20. The learned counsel for the complainant submitted that an offence of criminal intimidation has been made out from the complaint. It is true, that there is some assertion in that regard in the complaint, but, curiously, the complainant had not made any claim in the complaint that the accused had committed that offence; and had not sought process with respect to the said offence. Even the Magistrate has not issued any process with respect to the said offence. The learned Additional Sessions Judge also noted this aspect of the matter. When such is the position, it cannot be accepted that the process should now be directed to be issued with respect to the offence punishable under Section 506(I) or 506(II) of the IPC.
21. In the result, the petitions and the revision applications are disposed of as follows:
OPERATIVE ORDER
(i) The petitions are allowed in terms of prayer clause (b).
(ii) The revision applications are dismissed.
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