JAYANTILAL PARSOTTAM JOSHI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) BY way of this petition under Article 226 of the Constitution of India, the petitioner herein ? original complainant has prayed for an appropriate order to quash and set aside the impugned order dated 18/09/2002 passed by learned Judicial Magistrate, First Class, Mundra-Kutch dismissing the said complaint filed by the petitioner herein being Criminal Inquiry Case No.16 of 2011 in exercise of powers under Section 203 of the Code of Criminal Procedure mainly on the ground that the dispute is purely of civil nature and as such the Civil Suits are already pending between the parties, as well as the order dated 28/03/2006 passed by learned Sessions Judge, Kutch-Bhuj in Criminal Revision Application No.52 of 2002 in dismissing the same and confirming the order passed by learned Magistrate, Kutch.

(2.) THE petitioner herein ? original complainant has filed the private complaint against respondent Nos.2 and 3 herein ? original accused in the Court of learned Judicial Magistrate, First Class, Mundra-Kutch for the offences punishable under Sections 447, 451, 448, 416, 427 and 418 of the Indian Penal Code, which was numbered as Criminal Inquiry Case No.16 of 2001 alleging inter alia that father of the petitioner was mortgagee of the land in question, who was in possession of the disputed land and on his death, possession continued with the petitioner herein as mortgagee. It was further alleged that despite the same, respondent No.2 herein ? original accused No.1 sold/ transferred and handed over possession of the disputed land in question in favour of respondent No.3 for the purpose to laid the railway line. THErefore, it was alleged that the accused persons have illegally entered into the possession of the disputed land and have encroached upon land, which was in possession of the petitioner as mortgagee. That learned Magistrate after holding inquiry u/s.202 of the Code of Criminal Procedure by detailed speaking reasoned order dismissed the said complaint in exercise of power u/s.203 of the Code of Criminal Procedure vide order dated 18/09/2002. Being aggrieved by and dissatisfied with the order passed by learned Judicial Magistrate, First Class, Mundra-Kutch dated 18/09/2002 in Criminal Inquiry Case No.16 of 2001 in dismissing the same in exercise of power u/s.203 of the Code of Criminal Procedure, the petitioner herein - original complainant has preferred the Criminal Revision Application No.52 of 2002 before learned Sessions Court, Bhuj-Kutch, which came to be dismissed by the learned Revision Court by judgement and order dated 28/03/2006. Being aggrieved by and dissatisfied with the aforesaid two orders passed by both the Courts below, the petitioner herein - original complainant has preferred the present petition under Article 227 of the Constitution of India.

(3.) MR.L.B.Dabhi, learned Additional Public Prosecutor appearing on behalf of the respondent-State has requested to pass an appropriate order in the facts and circumstances of the case.