RAMESHWAR PRASAD SHARMA Vs. LALA RAM AND ORS.

JUDGEMENT

(1.) This criminal Misc. Petition under Sec. 482 Crimial P.C. has been filed by the petitioner against the order dated 16.3.2009 passed in the revision petition, whereby the order dated 8.10.2007 passed by the learned Additional Chief Judicial Magistrate Gangapur City has been set aside.

(2.) The facts of the case in brief are that F.I.R. No. 646/2003 was lodged at Police Station, Gangapur City for forcibly carrying away stones in the tractor from the disputed land. After completion of investigation, the police submitted Final Report, against which a protest petition was filed. The learned Magistrate by order dated 8.10.2007 rejected the Final Report and took cognizance against the non-petitioner No. 1 for the offence under Sec. 379 I.P.C. In the revision petition filed against the order taking cognizance, the revisional Court has set aside the order of the learned Magistrate.

(3.) A bare perusal of the orders of the Courts below goes to show that there was a dispute regarding possession of the land. In the course of investigation, it was found that encroachment on the Government land was made by the complainant and on the oral orders of the Enforcement Officer of the Nagar Palika, stones were carried out from the disputed land. It was admitted before the Courts below that the stones were carried away from the disputed land by respondent No. 1, but taking away stones from the disputed land cannot be terms as theft as the stones were not taken away with dishonest intention. The Revisional Court has specifically held that the entire act has been done by respondent No. 1 on the oral orders of the Enforcement Officer of Nagar Palika and it was done only with a view that there should not be any encroachment on the Government land. Hence, when there is lack of dishonest intention, the act of Lala Ram who was acting tinder the oral order of the Enforcement Officer, cannot be termed as theft.