MADHAB CHANDRA PANDA Vs. BISHNU CHARAN ROUTRAI

JUDGEMENT

(1.) THIS is a petition under Section 482 of the Code of Criminal Procedure ('Code' for short) for quashing the order of cognizance passed by the learned Sub -Divisional Judicial Magistrate, Jharsuguda, against the Petitioners for offences under Section 379 and 427 read with Section 34 I.P.C.

(2.) THE Petitioners are the accused and the opposite party is the complainant in I.C.C. Case No. 19 of 1986. The case in brief is as follows. The disputed house and premises are situate in Jharsuguda town and belonged to Samir Kumar Misra. The Orissa Forest Corporation Ltd., was in occupation thereof as a monthly tenant at a rental of Rs. 600/ - per month since 1973. In the year 1985 Samir sold the same in favour of the three sons of the opposite party, after which H.R.C. Case No. 12 of 1985 was filed in the court of the learned Sub -Divisional Judicial Magistrate -cum -House Rent Controller, Jharsuguda, against the tenant and other office bearers, The occurrence took place on 25.2.1986 when the house was in occupation of Petitioner No. 1 who functioned as the Divisional Manager of the Orissa Forest Corporation Ltd., at Jharsuguda. At mid -day Petitioner No. 1 and his son Petitioner No. 2 with the help of labourers cut down two standing Bela and Barakoli trees without permission of the opposite party and put him to loss, The opposite party reported the incident at the police station, But as no action was taken, the complaint petition was filed.

(3.) MR . B. Rath, learned Counsel appearing for the Petitioners, contended that the opposite party was not in possession of the trees in question. On the other hand, Petitioner No. 1 was in occupation of the disputed house and premises on behalf of the Orissa Forest Corporation Ltd. being its local Divisional Manager and as such was in defacto possession of the trees. Therefore, even if it is assumed for the same of argument that the trees were cut and removed either by him and his son or at their instance, a case of theft and mischief punishable under Sections 379 and 427 IPC was prima facie not made out because of non -satisfaction of one of the important ingredients for the aforesaid offences, viz. the factum of possession. In other words, as the opposite party was not in possession of the trees, the criminal case against the Petitioners who were in possession was not maintainable. In support of his contentions, he placed reliance on : A.I.R. 1931 Mad 241, Nataraja Mudaliar v. Devaskamani Mudaliar : A.I.R. 1940 Pat 701, Tarachand Sah and Ors. v. Emperor, and : A.I.R. 1959 Ori 207, Bramhachari Martha v. The State. He also relied upon some other decisions which are not relevant for the purpose of this case and so I do not feel called upon to make reference to them.