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Rajiv Kumar And Others v. State Of U.P. And Others - APPLICATION U/s 482 No. 12853 of 2005 [2006] RD-AH 14198 (23 August 2006)


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 (Reserved Judgment)

Criminal Misc. Application  No.   12853 of 2005

Rajiv  Kumar Srivastava son of

Sri Kashaywar Lal, Resident of Village Bhogwara,

Police Station  Phoolpur, District

Allahabad and 7 others. ..........  ...Accused- Applicants.


1. State of U.P. ... ...       Opp.party No.1

2. Devi Prasad Srivastava, son of late Bhagwati

Prasad, R/o Village Bhogwara, Police Station

Phoolpur District Allahabad..........     Complainant- Opp.party No.2.


Hon'ble Barkat Ali Zaidi, J

1. Heard Sri  Pankaj Kumar Shukla, learned counsel for the applicants, Sri D.P.Singh, learned Counsel for the Opp.Party No.2 and the learned A.G.A. for the State.

2. On prayer of the counsel for the applicant, earlier Misc. application No. 5059  of 2005 filed earlier  by the applicants stands withdrawn.

3. As will appear from the record, there is a  dispute on a piece of agricultural land pending  between the applicant and the Opp.party No.2.

4. On an application filed by the Opp.party No.2 before the Special Chief Judicial Magistrate, Allahabad alleging that the applicant accused had forcibly carried away  crop of wheat  and mustered of Opp. Party No.2 ,lying on the land in question, the Magistrate under Sec. 156 (3) Cr.P.C.  ordered the police to register a criminal case  and to investigate the same. The police filed a final report, which  Opp.party No. 2 protested and the Magistrate after rejecting the final report and treating it as a complaint  case  ordered to issue process against the accused-applicants under Section 379  of Indian Penal Code, vide order dated 11.3.2005. Since the accused did not appear , the Magistrate has ordered to issue non-bailable warrants against the accused-applicant.

5. That is how they have come up for relief under Section 482 Cr.P.C. before this Court.

6. The contention of the applicants is  two-fold;

(i) that the crop was cut and taken away by the applicants under the order of the Sub Divisional Magistrate, Handia  and consequently no offence of theft has been committed by them.

(ii) that the proceedings in revenue Court with regard to the land in question are pending and proceedings in the criminal side are, therefore not sustainable.

7. As regards the first point, it will be seen that the Sub Divisional Magistrate, Handia  passed an order to the police to the effect that the person who sowed the crop should be allowed to reap  and gather the same, but the real controversy is, as to who  sowed  the crop and about which  there was no order of the Magistrate. The applicants can not take cover in the order of the Sub Divisional Magistrate, Handia at any stage.

8. As regards the second  point, it will be seen that,  Opp.party No. 2 won the case with regard to the land from the court of the Deputy Director of Consolidation. Thereafter, the applicant went before the High Court by means of filing a writ petition, which was dismissed,  and, the order of the  Deputy Director of Consolidation was confirmed. Thereafter, the possession of the land was delivered to  Opp.party No. 2 on 30.6.2002, about which there is a copy of Dakhalnama on the record. An appeal is now pending before  the Settlement Officer Consolidation against the order of the Consolidation Officer.

9. It will thus, appear that by virtue of Dakhanama,  Opp.Party No. 2 is in possession of the land in dispute and till he is dispossessed, he will be presumed to be in possession.  It must, therefore, follow that the crop subsequent to the execution  of Dakhalnama were sown by the Opp. Party No. 2.  The dispute here is with regard to the crop of the year 2004. The Opp.Party no.2 has not yet been dispossessed  and the Dakhalnama holds good. He is, as such, prima-facie entitled to grow and gather crop in the land in question. It must, therefore, be assumed that the crop in question was grown by Opp.party No.2 and he is as such, entitled to maintain a criminal proceeding for unlawful removal of the crop. The mere fact that an appeal is pending before the Settlement Officer of Consolidation against the order of the Consolidation Officer, will not dis-entitle Opp. Party No.2 to maintain criminal proceeding because he  has a Dakhalnama in his favour.

10. There can be no controversy on the point that the person   who sows the crop, is normally entitled to collect the same. The applicants do not dispute the fact  of  having taken away the crops. There is no occasion, therefore, for this Court to  interfere in pending criminal proceedings.

11. Application dismissed.

12. The observations made in this order will have no binding effect over the fate of the case.

Dt:  August 23rd , 2006



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