SUKOMAL CHANDRA ROY Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) AFFIDAVIT of service is filed and the same be kept with the records.

(2.) HEARD learned Advocate for the petitioners the and/the learned Advocate for the State. Inspite of service of notice, no appearance is made by the O. P. No. 2. The learned Advocate for the petitioners drew my attention to the certified copy of the petition on complaint in which the address of the complainant vis-a-vis the place of occurrence is stated to be 74 Domestic Area under Alambazar within the Police Station of Belgharia. It appears from the petition of complaint that allegation rests primarily as to commission of offence of theft read with other provisions of law is raised in the petitioner of complaint. Theft is an offence against possession and according to the recital in the petition of complaint, the occurrence took place in the residence of the complaint on 18. 11. 07 at about 9 A. M. The learned Advocate for the petitioners submitted from the documents annexed along with the application that so far as the property is concerned, it has been decided by the competent authority by passing a reasoned order dated 28. 12. 04 that the petitioner herein has proved his effective possession on 74 Domestic Area which is also identical with the place of occurrence as mentioned in the petition of complaint. It further appears from the document that the husband of the opposite party No. 2 was found to be not a displaced person. The said order is dated 28. 12. 04 and subsequently, the petitioner herein was issued necessary document by the competent authority in respect of the property. The said document is dated 31 st October, 2006. It further appears that the issue also came up before this in connection with W. P. 18181 (W) of 2005 wherein the Hon'ble Single Judge of this by an order dated 22. 12. 05 on the application filed by the petitioner herein directed the authority for regularization of the plot in question in favour of the petitioner. Contents of all the documents taken altogether will show that in respect of the place of occurrence as mentioned in the petition of complaint, the petitioner herein has acquired legitimate title on the strength of appropriate order passed by the authority. The learned Advocate for the petitioners has also submitted that in the petition of complaint at paragraph 6 there is recital that civil suit being Title Suit 140/06 is still pending before the learned Civil Judge, Senior Division, 4th Court at Sealdah but from the documents produced, it is evident that the husband of the O:p. No. 2 filed an application before the learned below which is dated 1. 10. 07 that he is not willing to proceed further with the case. The petition of complaint is lodged on 27. 11. 07 and a such it appears that the recital in the petition of complaint does not disclose a correct state of affairs.

(3.) IT is submitted by the learned Advocate for the State that as process is already issued by the learned below those matters should be decided at the time of trial and this should not interfere in exercise of its power under Section 482, Cr. P. C. It is correct that the power vested with this under Section 482, Cr. P. C. shall be sparingly used only to prevent abuse of process of but if it is found that the petitioner has produced documents which are unimpeachable in character and nature, it will be an abuse of process of Court if the petitioner is directed to establish the same at appropriate stage of trial. To do so will be only to delay the positive outcome which is evident from the face of record. I have already pointed out that in this case primarily an offence complained is offence against possession and the document produced vis-a-vis the order passed by this Court in connection with the writ petition filed by the petitioner singularly points out that the possession in respect of the property rested with the petitioner. When the basis of the charge cannot be established and when the petitioner has produced document which clearly establishes his case then in my view it will be an abuse of process of directing further continuation of the trial. Trespass is an offence against possession. Theft is an offence against possession. In this case, the offence as alleged was committed consequent to the trespass committed by the petitioner. A person cannot commit trespass against his own property.