Dongar Singh Rathore vs State of M.P. and Others

Alok Verma, J.—This application is filed under Section 482 of Cr.P.C. The brief facts necessary for disposal of this application are that the applicant-Dongar Singe Rathore is a resident of Village Panda, Tehsil Badnawar, District Dhar He had ancestral house located in the village. According to the applicant, the house remained in his possession and he is the owner of the house. The non-applicant No. 3-Sabal Singh is the real brother of the applicant. The applicant due to old age, shifted to Indore however, his sons frequently visit the village to look after his agricultural work. When they visit the village, they stay in the house and they also keep their form equipments and crops in the said house. On 28-5-2003, the present applicant received a message that non-applicant No. 3 and his sons broke the lock of the applicant''s house and tried to take forcible possession of the house. The matter was reported to the police and crime under Section 448/34 of IPC was registered.

During the pendency of the criminal trial, the Criminal Court after considering the arguments from both the sides, granted interim custody of the house to the non-applicant No. 3 on furnishing of Supurdnama for Rs. 1,00,000/-. Under this order, non-applicant No. 3 remained in possession of the house custodial "legis " of the house.

On 14-6-2005, the prosecution filed an application under Section 321 of Cr.P.C., which was accepted by the learned Magistrate and the case was withdrawn.

Being aggrieved by the order passed by the learned Magistrate allowing the prosecution to withdraw the case, the revision was filed before the First Additional Sessions Judge, Dhar, which was, decided on 31-10-2011 by the learned Additional Sessions Judge in Cr. R. No. 189/2005. The revision was dismissed on the ground that the applicant and the non-applicant No. 3 are real brothers and a civil case was pending between them. In that civil case, the present applicant sought relief of the possession by removing the lock putted on the house by the non-applicant No. 3. However, this civil suit was dismissed by the Civil Court. Under this situation, the Revisional Court found that no irregularity was committed by the learned Magistrate in allowing the application under Section 321 of Cr.P.C.

Subsequent to this, the present applicant filed First Appeal before the First Additional District Judge, Dhar, which was registered as Civil Appeal No. 20-A/2005. The first appeal was allowed and decree to the following effect was passed by the Appellate Court:--

"It is and decreed that,

The non-applicant No. 3 filed a second appeal before the High Court, which is pending.

In the background of the aforesaid facts, the applicant filed an application challenging the order of the Magistrate under Section 482 of Cr.P.C.. He placed reliance on the judgment of Hon''ble the Supreme Court in the matter of Sheonandan Paswan Vs. State of Bihar and Others, of the judgment, Hon''ble the Supreme Court observed that:--

"The Court''s function is to give consent. This section does not obligate the Court to record reasons before consent is given. However, I should not be taken to hold that consent of the Court is a matter of course. When the Public Prosecution makes the application for withdrawal after taking into consideration all the materials before him, the Court exercises its judicial discretion by considering such materials and on such consideration, either gives Consent or declines consent The section Should not be construed to mean that the Court has to give a detailed reasoned order when it gives consent. If on a reading of the order giving consent, a Higher Court is satisfied that such consent was given on an overall consideration of the materials available, the order giving consent has necessarily to be upheld."

He has also placed reliance upon the judgment of Hon''ble the Supreme Court in the matter of Rahul Agarwal Vs. Rakesh Jain and Another, In this Judgment the Court observed that withdrawal of the case should be permitted only when, it is likely to end in acquittal and continuance of the case is only causing severe harassment to the accused or to bring about harmony between the parties.

Reverting back to the present case, it is apparent that the case was withdrawn and the learned Magistrate has observed that withdrawal of the case is in the interest of society at large.

After going through the impugned order I do not find any irregularity in the order passed by the learned Magistrate or Revisional Court. The discretion lies with the learned Magistrate and there is nothing on record, to show that the learned Magistrate exercised the jurisdiction erroneously. So far as the possession of the house under the order of the Criminal Court is concerned the order was passed by the Criminal Court is an interim measure. The question of ownership and possession can only be decided by the Civil Court In the present case, the civil litigation is already pending between, the parties There is a decree in favour of the present applicant, which apart from declaring his ownership also entitles him to obtain possession of the house, As such no case is made out for interfering in the order passed by the learned Magistrate under Section 321, of Cr.P.C. as, it will not serve any purpose whatsoever, as far as the possession of the house is concerned.

Accordingly, I find that no ground exists for exercising the extraordinary power conferred under section 482 of Cr.P.C. to this Court. The M.Cr.C. is devoid of merit and liable to be dismissed and it is accordingly, dismissed.

C.c. as per rules.