ACHUTA Vs. BEWA

JUDGEMENT

(1.) THE petitioners have made this application under Section 397 read with Section 482 of the Criminal P.C. (hereinafter referred to as the 'Code') for quashing the criminal proceeding (I. C. C. No. '8 of 1979) pending in the court of the learned Sub -divisional Judicial Magistrate, Dharamgarh, instituted by the opposite party for theft by the petitioners and their father Golak Pradhan (now dead) of the crops raised by her in the year 1978 and the occurrence had allegedly taken place on Nov. 25 1978. The opposite party reported this occurrence to the police authorities and after the matter was investigated into, a final report was submitted. On the petition of complaint of the opposite party, cognizance of an offence of theft punishable under Section 379 of the Penal Code was taken and the petitioners were prosecuted. While according to the opposite party, prior to her marriage, her husband had adopted the deceased Golak Pradhan. the father of the three petitioners, about 40 years ago and her husband got separated from Golak by giving away 20 acres of land to the latter and after separation, Golak had no connection with this family or the land in question which has remained in the exclusive possession of the opposite party, the case of the petitioners is that they have been in actual cultivating possession of the land in question. After examination of three witnesses for the prosecution including the opposite party and hearing both the sides, the learned Sub -divisional Judicial Magistrate has framed a charge under Section 379 of the Penal Code rejecting the contention raised by the petitioners that a bona fide dispute was involved and that they were in possession of the land.

(2.) MR . S. Misra, for the petitioners has urged that in a ceiling proceeding under the Land Reforms Act, the possession of the petitioners in respect of the land in question has been established for which the crops which had allegedly been removed by them and seized during the investigation of the case were not to be returned to the opposite party, as ordered by the learned Additional Sessions Judge, Bhawanipatna, who issued a direction that the crops be sold and the sale proceeds be deposited in the treasury to be delivered to the successful party after the title of the property was decided by the Civil Court or till the parties came to an amicable settlement. He has also submitted that in Criminal Miscellaneous Case No. 23 of 1979, a proceeding under. Section 145 of the Code between the opposite party on the one hand and the petitioners and their father on the other, the learned Sub -divisional Magistrate, Dharamgarh, found that none of the parties thereto was in exclusive possession of the land and therefore a direction was made to the parties to approach the competent court for a declaration of title in their favour and the land was attached under Section 146(1) of the Code. All this would show. Mr. Misra contends, that there was a bona fide dispute relating to the title and possession over the land in question and therefore, to initiate and continue the criminal proceeding against the petitioners would be an abuse of the process of the Court and the criminal proceeding against the petitioners and the charge framed against them should be quashed. The opposite party, in spite of service of notice on her, has not entered appearance.

(3.) IN the instant case, the police authorities had, no doubt, submitted a final report, but it was certainly open to the opposite party to make a petition of complaint being aggrieved by the submission of such a report and the opposite party had so done and on the basis of her petition of complaint cognizance of the offence had been taken after her initial statement was recorded. At that stage, no application had been made to quash the criminal proceeding. The matter was allowed to proceed and now the evidence of three witnesses for the opposite party including that of her own has been recorded. All of them have testified that in the year of occurrence, the crops had been raised by the opposite party and the crops so raised had been removed by the petitioners. A few questions had been put to the opposite party in her cross -examination before charge and the evidence of other two witnesses in support of the case of the opposite party has gone unchallenged before the charge was framed.