L DAR Vs. KHATI

JUDGEMENT

(1.) THIS petition under section 561 -A Cr. P. C. arises out of the following circumstances : On 7 -7 -1976 Mst. Khati filed a complaint under section 379 R.P.C. in the court of Judicial Magistrate Ganderbal. It was alleged in the complaint that a number of poplar trees standing on the land owned both by the complainant and the accused No. 1 were cut by accused No. 1. Lala Dar, without her permission and that the same were sold to the accused No. 2 All Khan. It was requested by the complainant that as the accused have committed theft of the property belonging to her they may be proceeded against. The Magistrate after recording the statement of the complainant and a witness took cognizance in the case and ordered bailable warrants to be issued against both of them. The complaint, however, was later transferred for disposal from the court of Mag : Ganderbal to the Court of Chief Judicial Magistrate Srinagar. The accused -petitioner raised a preliminary objection against the maintainability of the complaint in the court of the learned CJM to the effect that the complaint was frivolous and that the trees in question were not in possession of the complainant and therefore, the theft could not have been committed by the petitioner with regard to this property and as such no case of theft could be said to have been made out prima facie against him. It was prayed that the complaint be dismissed and the process issued cancelled. The learned CJM heard the arguments of both the parties and vide his order dated 29 -10 -1976 held that the preliminary objections raised by the accused petitioner had no force in it and therefore, rejected the plea. It is against this order that the petitioner has come to this court invoking its inherent powers, under section 561 -A Cr. P.C. alleging that the complaint was frivolous and the Judicial Magistrate without applying his mind to its contents and to the statements of witness has issued process against the petitioner and respondent No. 2 under Section 397 R.P.C.

(2.) IT has been contended in this court that the learned C.J.M. has failed to evaluate and appreciate the contents of the complaint as also the evidence of the complainant and her witnesses. The authorities on this point of law that were cited before him have not been, it is alleged, properly appreciated by him. It was submitted that from a bare perusal of the contents of the complaint it would be apparent that the respondent No. 1 has no where alleged therein that the alleged subject matter of! theft i.e. poplar trees were ever in her possession as a co - sharer or that the petitioner herein removed these trees from out her possession with the dishonest intention. It was contended that the property not being in the possession of respondent No. 1, the question of theft having been committed by its! removal would not arise. It has been prayed therefore, by the" petitioner that the proceedings started against him end another u/s 379 R.P.C. be quashed.

(3.) ACCORDING to the learned counsel for the other side a prima facie case has been made out on the facts narrated in the complaint and therefore, the proceedings u/s 379 RFC could not in law be quashed. It was, according to him a serious question that has arisen and needs to be dealt with properly and no legal objections could be raised at this stage for scuttling the proceedings in the trial court at the very outset.