YAMIN, J. - (1.) THESE two petitions are to be decided together. Petition No. 495/99 was preferred under Section 482 Cr. P. C. but later on it was converted into revision and case No. 485/99 was filed as a revision. No separate order is required to be passed in case No. 495/99 as it has been converted into revision petition.
(2.) THESE petitions have been directed against the order of learned Additional Chief Judicial Magistrate, Makrana dated 10. 6. 1999 by which he summoned the petitioners by bailable warrants for offences under Sections 147, 148, 452, 447, 379 and 380 IPC thereby taking cognizance. The case has a very chequered history. First information report No. 119/84 was registered at police station Makrana on the report of Hussain son of Lal Mohd. for offences under Sections 147, 148, 149, 323, 427 and 379 IPC alleging that 18 persons named in the FIR armed with weapons entered into his house in the night falling in between 13th and 14. 09. 1984 and gave beatings to different persons, and committed theft of certain articles. The police registered, investigated the case and submitted final report to the Magistrate concerned which was accepted on 2. 11. 1985. Complainants Hussain Khan and Ismail then filed a complaint before Judicial Magistrate Makrana on 25. 1. 1989 after waiting for so many years with a lame excuse that Ismail had no information of final report. In the complaint it was alleged that complainant Ismail was residing in the house, boundaries of which were stated in para No. 1 of the complaint. His children and he himself were asleep in the night of 13. 9. 1984 when 15-20 persons armed with lethal weapons came and attacked. They entered into the house of the complainant. Ismail and his brother Hussain were given beatings. Wife of Ismail, Abdul Rashid etc. were also given beatings. A half body truck was also brought. It was tried to take Jummi and Salamuddin in it. Three kothis containing currency notes and some utensils were also removed. It were Farid, Abdul Kayyum, Abdul Sattar and Hafiz Peer Bux who are aware of this incident. No eye witness was named in complaint. It was stated that the information about final report was not received by complainant and that cognizance be taken for offences under Sections 452, 392, 394/34 IPC. Learned Magistrate recorded statement of Mohd. Ismail, Nisar Ahmad, Jummi, Gulam Nabi, Abdul Kayyum, Nasiban and by order dated 16. 9. 1994 took cognizance and ordered that the warrants of arrest to issued against 18 persons whose names were given in the complaint. This order was challenged before this Court in SB Cr. Misc. Petition No. 661/94 which was decided on 4. 10. 1994 in which trial court was directed to procure the attendance of the accused persons by issuing bailable warrants. It was also ordered that the trial court will consider the arguments advan-ced by the petitioners and in case no case is made out against accused persons, it may drop the proceedings. An application was then moved before the learned Magistrate who heard the petitioners and then passed the impugned order by which cognizance has been taken under Sections 147, 148, 452, 447, 379 and 380 IPC. It has been challenged by the petitioners by these revision petitions. I have heard the learned counsel for the petitioners as well as learned Public Prosecutor and counsel for the respondent No. 2. Learned counsel for the petitioners Shri K. N. Joshi submitted that the final report given by the police was not considered by Magistrate and when it is so, Daleep Singh vs. Smt. Magan (1), is applicable wherein it was held that when cog-nizance is taken on the basis of evidence produced under Sections 200 and 202 Cr. P. C. and the material submitted by police before taking cognizance is not considered then it is a violation of provisions of Section 203 Cr. P. C. and the order summoning the accused has to be set aside. Shri Acharya, on behalf of respondent No. 2 submitted that the Magistrate did consider the final report as the same was on record when order taking cognizance was passed. I find that the final report was on record and when it is so, it can very well be presumed that learned Magistrate did consider it and thereafter passed the impugned order. Therefore, the order cannot be set aside on this ground. Then Shri Joshi, learned counsel for the petitioners, submitted that the proceedings under Section 145 Cr. P. C. were decided in 1983. It was on 2. 11. 1983 that Abdul Gaffar obtained the possession of the property. According to Shri Joshi there is nothing on record that thereafter Abdul Gaffar was ever ousted from the property. He submitted that if it was so then the offences alleged by the petitioners could not have been committed by them. He also submitted that civil suit is pending between the parties and this Court in Ashwani Kumar vs. State (2), has held that when disputes relating to civil rights were subjudiced before the civil courts, simultaneous criminal proceedings with regard to the land, for which civil litigation was pending and when all the allegations contained in criminal complaint would be decided in civil suit, the matter becomes completely of civil nature and criminal proceedings taken simultaneously with regard to that very matter cannot be permitted to proceed and in such cases order taking cognizance against the accused cannot be sustained. He also submitted that there is no explanation of delay of so many years in filing the complaint after the final report was approved by the Magistrate.
(3.) IT is also submitted that on merits the complaint mentions the names of Farid Bux son of Nizamuddin Abdul Kayyum, Abdul Sattar and Hafiz Peer Bux who were aware of this incident but the compliant does not mention the name of any eye witness. He also submitted that complainant Mohd. Ismail named Farid Bux, Peer Bux, Kayyum and Sattar as eye witnesses and out of whom only Kayyum has been produced. He submitted that no offence is made out when property in dispute was in possession of Abdul Gaffar himself. Shri Acharya then drew my attention to a judgment of learned District Judge, Merta dated 15. 12. 1984 in relation to a civil suit between Hussain, Ismail and Abdul Gaffar and Mst. Chando. Shri Acharya submitted that by judgment dated 15. 12. 1984 the learned District Judge prima facie found that the possession of the property was with the complainant. This judgment does not help the complainant firstly because it was in relation to a temporary injunction which finally did not decide the rights of the parties. Secondly it was brought to my notice by Shri Joshi that even this judgment has been set aside in SB Civil Misc. Appeal No. 172/84 by this Court on 14. 2. 1985. I called the file of the High Court and found that what Mr. Joshi states is correct. So this order of learned District Judge was of no help to the complainant. It has been stated and admitted by both the parties that the civil suit is still pending in which it is to be decided as to who was in possession and to whom the property belonged. In view of this admission by learned counsel it has to be seen whether this matter is of civil nature and whether cognizance could be taken by Magistrate for the same dispute? Complaint mentions that the property was in exclusive possession of the complainants i. e. Hussain and Ismail on the date of the incident. But it is not so. The point of possession is in dispute and for that matter the civil suit pending before the competent court will decide as to who was the owner of the property and who was in possession. The facts of civil suit are that Shri Samnaji had two sons. They were named as Lal Mohd. and Kamaluddin. Ismail and Hussain are descendents of Lal Mohd. , while Smt. Chandu is the only daughter of Kamaluddin. Both, Lal Mohd. and Kama-luddin, expired. The property till 1948 and even before that was a joint property. It was admitted that till 10. 1. 1949 the property was in joint possession of Lal Mohd. and Kamaluddin. There are so many issues in civil suit relating to some forged documents. It is stated that Smt. Chandu sold plot to Abdul Gaffar through a registered sale deed for a consideration of Rs. 23000/-on 5. 9. 1981. Abdul Gaffar started construction and ultimately suit was filed on 12. 11. 1984 by Hussain and Ismail with the averment that an oral partition had taken place and the plot in dispute went in their exclusive share and Smt. Chandu has no right to dispose of that plot. The question in the present criminal case is about possession of plot which is ultimately to be decided by civil court and thus the case becomes a case of civil nature. ;