RAJAN BABU P T Vs. ANITHA CHANDRA BABU

JUDGEMENT

(1.) Could a person who removes standing timber from the property in his possession even after the civil court has declared title of the complainant and allowed him to recover possession of the said property be charged with the offence of 'theft', is the question arising for a decision in this case.

(2.) A resume of facts necessary for a decision of the question is: The first respondent secured a decree from the court of learned Munsiff, Punalur in O.S. No.420 of 1997 on 09.07.2008 declaring her title over 33= cents of land in Sy.No.475/9B, 475/9B/21, 475/8A1 and 475/8A20 in Punalur Village, directing petitioners to surrender possession of the said property to the first respondent within one month of the date of decree and failing which, allowing the latter to recover possession of the property through court. Petitioners challenged that decree in the appellate court and obtained stay of execution of the decree for recovery of possession. On 17.02.2011 the first respondent filed a complaint before learned Judicial First Class Magistrate-III, Punalur complaining that while the appeal was pending petitioners and their men with intent to remove the timber, cause wrongful loss to the first respondent and make wrongful gain for themselves, cut down a few trees from the said property on 08.01.2011. First respondent complained to the Punalur Police who directed petitioners not to remove the timber from the property. On 01.02.2011 petitioners and their men removed the timber without consent of the first respondent. That according to her, amounted to an offence punishable under Section 379 read with Section 34 of the Indian Penal Code (for short, "the IPC"). Learned Magistrate forwarded the complaint to the Punalur Police under Section 156(3) of the Code of Criminal Procedure (for short, "the Code"). The Sub Inspector, Punalur registered a case as Crime No.299 of 2011 under Sec.379 read with Sec.34 of the IPC against petitioners and started investigation. Petitioners have approached this Court to quash Annexures 1 and 2, the complaint and the FIR. Learned counsel for petitioners contended that no offence of theft is even prima facie made out from Annexure-1, complaint in that even according to the first respondent, property wherefrom the the trees were cut and removed was in the possession of petitioners and hence the essential ingredient to constitute the offence of 'theft', i.e., taking the property (timber) from out of the possession of first respondent is lacking. It is contended that learned Magistrate has mechanically forwarded the complaint to the Police under Sec.156(3) of the Code without even referring to the allegations in Annexure-1, complaint. It is contended that what is involved is only a civil dispute regarding title over the property. Hence it is argued that Annexures-1 and 2 being an abuse of the process of the law, may be quashed. Reliance is placed on the decisions in Shaik Abdul and Another v. Emperor (115 IndCas 684) and Varghese v. State of Kerala,1964 KHC 213).

(3.) Learned counsel for first respondent contended that in view of the decision of the civil court, the de jure possession of the property is with the first respondent, possession of petitioners if any, is only on behalf of the first respondent, its rightful owner as declared by the civil court, and hence removal of timber is from the possession of the first respondent. Reliance is placed on the decision in Pyare Lal Bhargava v. State of Rajasthan, 1963 AIR(SC) 1094). Learned counsel has drawn my attention to Ratanlal and Dheerajlal on the Indian Penal Code, pages 2019 and 2020. It is also contended that if not 'theft' other offences may be involved on the facts and hence interference at the stage of investigation is not required. Leaned Public Prosecutor also has taken that stand in the matter.