- (1.) The aforesaid misc. petition under Section 482 Cr.P.C. has been filed by the petitioner - Ram Lal seeking quashing of the FIR No. 222/2011, registered against him at Police Station Kapasan, District Chittorgarh for the offences under Sections 448, 427 IPC and Section 3(10) of the SC/ST Act. Briefly stated the facts necessary for the disposal of these two petitions are set out here-in-below.
(2.) The petitioner filed a civil suit for permanent injunction along with an application under Order 39 Rule 1 and 2 CPC for seeking temporary injunction against the respondent No. 2, who is the complainant herein with a prayer that the respondent No. 2 should be restrained from raising construction over the land claimed to be a part of the approach road for going to the house of the petitioner. The said application was filed by the petitioner in the court of learned Muncif Magistrate, Kapasan being suit No. 50/2008. The learned trial Court by order dated 7.5.2008 appointed a Commissioner for inspection of the premises, who after the site inspection submitted his report to the Court and the Court directed the parties to maintain status quo in respect to the dispute property pending disposal of the application for temporary injunction. The finding, which the learned trial Court arrived at was that there exists a road in the southern side of the petitioner's house and that the patta relied upon by the respondent No. 2 bore interpolations. The trial Court also found that the Panchayat has no authority to issue patta over the land which was a part of the public way. Accordingly, the learned trial Court passed a temporary injunction restraining the respondent No. 2 from creating any obstruction in the petitioner's access to his house through the disputed land. The order of status quo was passed on 20.5.2008 and thereafter, the respondent No. 2 filed an FIR bearing No. 261/2008 on 18.6.2008 against the petitioner for the offence under Section 3 of the SC/ST Act, which was thoroughly investigated by the police and the police after investigation came to the conclusion that the FIR filed by the respondent No. 2 was false and accordingly a negative FR was submitted which was accepted by the Court concerned. The temporary injunction passed by the Court below was confirmed on 30th July, 2008, against which, the respondent No. 2 preferred an appeal, which too as dismissed on 21st November, 2008. The respondent No. 2 challenged the said proceedings by way of a writ petition being S.B. Civil Writ Petition No. 866/2009 titled as "Narayan & Anr. vs. Ram Lal", which came to be decided by this Court on 19th August, 2010. This Court while deciding the aforesaid writ petition has observed as under; A perusal of the order impugned reveals that both the courts below have concurrently found that if the petitioners/defendants are permitted to raise construction over the disputed land then, the approach road to the respondent/plaintiffs house shall stand obstructed altogether and he shall be deprived of the user of his property. On the basis of the documents on record and the report submitted by the Commissioner after local investigation, the Court has arrived at categorical finding that in the southern side of the respondent/plaintiffs house, there exists a public road. Every citizen has right to pass over every inch of the public road and therefore, even if such land is allotted by the local authority in favour of anybody then, the same does not create any right in his favour. Indisputably, even the local authority has no jurisdiction to allot the land which forms pat of the road in favour of anybody. Moreover, after perusal of the pattas, the trial Court has prima facie expressed its doubts about the genuineness thereof. In considered opinion of this Court, the concurrent findings arrived at by the Courts below on the basis of the material on record cannot be said to be capricious or perverse so as to warrant interference by this Court in exercise of its supervisory jurisdiction under Article 227 of the Constitution of India. The contention of learned counsel for the petitioners that since the respondent/plaintiff has not removed the tube well from the public road therefore, the temporary injunction granted in his favour deserves to be set aside, is also devoid of any merit. Indisputably, the respondent/plaintiff has already filed an affidavit before the trial Court on 19.8.2003 stating that in compliance of the directions of the courts, he has already removed the tube well. This fact is apparent from even the Commissioner's report dated 6.1.2009 placed on record as Annexure-R/11. Be that as it may, if the respondent has not complied with the directions of the Court below then in terms of order dated 30.7.2008 passed by the trial Court, the application for temporary injunction shall be treated to be dismissed and therefore, the question of setting aside the order granting temporary injunction on this count does not arise. There is yet another aspect of the matter. The Commissioner's reports, orders passed by the trial Court during pendency of this writ petition and other material placed on record by the respondent/plaintiff, speaks a volume about the conduct of the petitioners/defendant (sic) however, since the matter is pending before the Court below in proceedings under Order XXXIX Rule 2A therefore, it will not be appropriate for this Court to comment upon the same or to record any finding in this regard. For the aforementioned reasons, in considered opinion of this Court, the writ petition is devoid of any merit and deserves to be dismissed. Accordingly, the writ petition is hereby dismissed. The respondent/ plaintiff shall be entitled for cost of Rs. 3,000/- from the petitioners/ defendants.
(3.) It appears that despite the order of temporary injunction, the respondent No. 2 had raised construction over the disputed property, on which, the petitioner preferred an application under Section 151 CPC seeking demolition of the illegality raised construction with police aid. In the said application, notice was issued to the respondent No. 2 but he chose not to appear before the Court and the court accepted the application filed by the petitioner by its order dated 3.2.2009. Thereupon, the petitioner moved to authority for the execution of the order of removal of the illegal construction and for providing police assistance for the purpose of the removal, on which, the Superintendent of Police, Chittorgarh directed providing police assistance for carrying out the directions of the court and in pursuance to the directions, the illegally raised construction was demolished on 28.4.2011 by the Assistant Nazir with the assistance of the police party. At that time, the petitioner was also present at the spot. The respondent No. 2 on coming to know about the demolition, filed a complaint in the court of learned ACJM, Kapasan on 2.5.2011 with the allegations that the patta of the property in question had been issued to him by he Panchayat. He further claimed that in pursuance to the exparte order dated 28.4.2011, not only the property which was directed to be demolished by the civil court but the other parts of the property owned by the complainant were also demolished and damage worth a lac of rupees was caused to the complainant. Another allegation, which has been made in the complaint is that on 29.4.2011, when the complainant went at his plot and saw the demolition, then, he found that the construction in excess of the directions issued by the Court had been demolished. When the complainant and his son Suresh confronted the accused with this fact about the demolition of excess property, then, it is alleged that the accused entered into the eastern part of the property of the complainant and started abusing he complainant and his son that people of lower community would not be permitted to live near the house of the accused and thus as per the complaint, the accused had committed offences under Sections 448, 427 IPC and Section 3(10) of the SC/ST Act. The said complaint was forwarded to the police under Section 156(3) Cr.P.C. and accordingly a FIR bearing No. 222/2011 has been registered at the Police Station Kapasan, Distt. Chittorgarh for the aforesaid offences. The petitioner has filed the present criminal misc. petition under Section 482 Cr.P.C. seeking quashing of the FIR registered against him and the application seeking anticipatory bail being S.B. Criminal Misc. Bail Application No. 5405/2011.;