Bal Krishna Gaur and Others vs State of U.P.

M. Wahajuddin, J.—I have heard the Counsel at length. The undisputed facts are that a petition suit was filed interse between the landlord and his brothers. The complainant, who lodged the report and claims to he the tenant, was nut a party to that suit. The suit for separating the Petitioner''s share from other co-owners and for delivery of possession was decreed and the execution Parwana was issued.

Under the relevant provisions of CPC If any other person is in possession as tenant, only symbolical possession is permissible and not the actual physical possession. The landlord concerned through the Commissioner, who proceeded to execute the decree, secured actual physical possession of the premises after removing the belongings of the complainant opposite-party, who was in occupation as tenant. A first information report was lodged by the tenant concerned alleging that the commissioner and the landlord acted hands in gloves and colluded and committed trespass over the premises in occupation of the tenant and also committed mischief by removing the properties and belongings of the tenant and causing damage to it. The investigation followed. Chargesheet was submitted by the police u/s 427 and 448, IPC. The Magistrate holding that the proceeding is barred by the provisions of Section 195, Code of Criminal Procedure discharged the accused. The tenant-complainant filed a revision. The revisional court quashed the order of the Magistrate and directed that the case should proceed against the Petitioners under Sections 427 and 448, IPC.

The first argument advanced is that there cannot be any splitting up, nor the bar of Section 195, Code of Criminal Procedure can be avoided by giving a different garb to prosecution. It was also urged that the offence cannot be split up and if the cognizance of the main offence is barred, the cognizance of ancillary offence or any other offence would also be barred notwithstanding that they are not mentioned in Section 195, Code of Criminal Procedure. Reliance in that connection was placed upon the case of In Re Chinnayya Goudan AIR 1948 Mad 474 , Makaradhwaj Sahu and Another Vs. The State, , Radhey Shyam Gupta Vs. The State, , Durgacharan Naik and Others Vs. State of Orissa, C.A. Base Workshop v. P.B. Reddy 1977 ACR 169 page 180 Babu Ram v. Ram Nath 1977 ACJ 8 and State of U.P. v. Suresh Chandra Srivastava 1984 ACR 428. So far as the aforesaid principles urged before this Court is concerned, it does not admit of any doubt or dispute and I agree with the submissions that if otherwise some offence committed by the Act are covered under the bar of Section 195, Code of Criminal Procedure to other auxiliary offences also that bar would apply.

It was urged that the offences under Sections 208, IPC and 210, IPC have been committed and these offences are included u/s 195, Code of Criminal Procedure. By no stretch of imagination Section 208 IPC is attracted. As regards Section 210, IPC, I may at the very out-set observe that the section operates, if the decree etc. is obtained against any person in respect of the matters mentioned under that section. In the present case, neither the complainant, who lodged the report, was a party to the civil suit in question, nor a decree was obtained against him. Section 210, IPC would again not be attracted by any stretch of imagination.

Inherent powers are exercised to serve the ends of justice and not to defeat it or encourage it. The recital of facts in the judgment of the revisional court would show that as far back as 1976 the landlord moved on application u/s 21 of the Kent Control Act for securing vacation of the premises. While the Prescribed Authority allowed the prayer that order was set aside by the appellate court and the application was rejected. A writ petition is now pending before the High Court. In 1982, without impleading the tenant, a suit was brought between the landlord and the other co-sharers interse and then a compromise decree was obtained and in this back ground and context the tenant has been thrown out of the premises. When that is the position, this Court will not interfere in exercise of its inherent powers.

It was further argued that in any case any offence u/s 448, IPC would not be made out in absence of any notice, as lias been held m the case of Captain N. Basu v. Rais Ahmad 1982 ACR 462. Of course, this would be a matter to be looked into by the Magistrate whether any notice, as required u/s 441, IPC has been given or not. Even if for want of notice offence u/s 448, IPC would not be made out, atleast there is a prima facie case u/s 427, IPC and this Court would not interfere in exercise of its inherent powers at this stage and this application is summarily rejected.