2010 PLP 3161 (YLR)

SHAHID HAMEED DAR, J.--Through this Criminal Revision under sections 435/439, Cr.P.C. the petitioners have assailed the order dated 9-4-2010 passed by learned Additional Sessions Judge, Wazirabad, whereby, an application under section 265-K, Cr.P.C. moved by the petitioners in a private complaint under sections 3/4 of Illegal Dispossession Act, 2005 instituted by Manzar Hussain, respondent No.1, had been dismissed.

2. The facts leading to the filing of this revision petition are that Manzar Hussain filed a complaint under sections 3/4 of Illegal Dispossession Act, 2005 against Ehsanullah etc., the petitioners, with the contention that he had been dispossessed of his agricultural land, the detail whereof has been mentioned in the complaint, at 9-00 a.m. on 17-6-2007 by Ihsan Ullah and others (petitioners) who, being armed with deadly weapons forcibly occupied the agricultural land of the complainant and tilled it with a tractor; that Manzar Hussain, the complainant came forward to restrain them from doing so, he was threatened with dire consequences and that of murder, so, he could not stop the assailants and, like a silent spectator, saw the possession of land going to the hands of the accused; even a Punchayat thereafter, could not return him the possession of his land, therefore, he filed a private complaint under Illegal Dispossession Act, 2005.

3. Manzar Hussain respondent had previously filed a complaint on the same subject against Ehsanullah etc. (petitioner) which was dismissed due to non prosecution on 22-11-2007 as he was in Sialkot Jail at that time.

4. The petitioners moved an application under section 265-K, Cr.P.C. mainly relying upon the point that second complaint for the same offence was not competent under the law and secondly, civil litigation was pending between the parties and a suit for specific performance of contract filed by Manzar Hussain respondent had been decreed in his favour by the learned Civil Judge Wazir Abad on 17-5-2009 and a counter suit for specific performance of a contract, filed by Ehsan Ullah, the petitioner No.1 had been dismissed on the same day by the same learned court, hence, the instant petition.

5. Learned counsel for the petitioner contends that Manzar Hussain respondent was barred under the law to file second complaint under sections 3/4 of the Illegal Dispossession Act, 2005 on the same subject without any reasonable cause; both the petitioner No.1 and respondent No.1 had filed separate civil suits for specific performance of contract before the learned Civil Judge, Wazir Abad, much earlier to the filing of a complaint under sections 3/4 of the Illegal Dispossession Act, 2005 which were pending adjudication at that time, so, the filing of the said complaint by the respondent No.1 was not competent under the law; that the contention of Manzar Hussain, complainant in his above said complaint was contrary to his version as contained in civil suit wherein he had averred that he was owner in possession of the suit land and his suit had been decreed on 17-5-2008, which, clearly indicated that the occurrence alleged by him in his complaint case was baseless and false; that the impugned order passed by the learned Additional Sessions Judge, Wazirabad has been passed whimsically without application of judicious mind which has been passed in a slipshod manner; that the impugned order is based on surmises and conjectures and it has resulted in gross miscarriage of justice.

6. On the other hand, Manzar Hussain complainant contends that the pendency of a civil suit and that of petitioner No.1 was no bar to the filing of a private complaint under sections 3/4 of Illegal Dispossession Act, 2005; that the first complaint of respondent No.1 on the subject had not been decided on merits, and it was dismissed due to non-prosecution as he was confined in District Jail Sialkot then, who, could not manage his appearance before the learned trial Court on 22-11-2007 due to which the first episode of the complaint was dismissed; that the second complaint on the same subject in the attending circumstances was competent and it could not be brushed aside on the whims of the respondent/accused (petitioners); the judgment and decree passed by the learned Civil Judge in favour of the respondent does not certify anywhere that the respondent Manzar Hussain was still in possession of the territory forcibly occupied by the accused/ petitioners; the impugned order passed by the learned Additional Sessions Judge, Wazirabad has been passed strictly in accordance with law and it does not fall short of requirement of law in any manner.

7. Arguments heard. Record perused.

8. The first complaint on the same subject filed by Manzar Hussain respondent had been dismissed by the learned trial Court on 22-11-2007 for want of presence of the complainant and it had not been decided on merits. The respondent No.1 filed second complaint under sections 3/4 of the Illegal Dispossession Act on the same subject by reasonably explaining his absence from the learned trial Court on 22-11-2007, according to which, he had been imprisoned at District jail Sialkot. The law does not enforce any restriction in terms of filing of second or third complaint on the same subject if the earlier episode (s) has not been decided on merits. So, no defect can be found so far as the filing of the second complainant by the respondent No.1 is concerned. It is admitted fact that two suits for specific performance of a contract, one each by petitioner No.1 and Manzar Hussain respondent had been filed about the same landed property which had been decided by the learned Additional Sessions Judge, on 17-5-2008 in terms that the suit of respondent No.1 had been decreed in his favour, whereas, the suit of petitioner No.1 was dismissed. It has not been mentioned anywhere in the judgment passed by the learned Civil Judge on 17-5-2008 that Manzar Hussain respondent/plaintiff was still holding the possession of the suit property. The conceding statement in form of compromise deed placed on the file of this case does not disclose at all as to who was in actual possession of the landed property and the averments of paragraph No.2 of the compromise deed is absolutely vague and hardly convey any meaning. The respondent has alleged in his complaint that he was dispossessed of his landed property by the accused Ehsanullah etc. (petitioners) on 17-6-2007 which constituted an offence punishable under Illegal Dispossession Act, 2005. It is settled once for all now, that the pendency of a civil suit is no bar to filing of a complaint under the criminal law or lodge a criminal case against the accused who had committed a cognizable offence, and that both the transactions could proceed ahead in parallel to each other. The ordinary civil suit, an application or a petition before a competent civil court cannot pre-empt upon the proceedings of a challan case or a complaint case. The impugned order has been gone into by me and I find that the learned trial Court has recorded cogent reasons while dealing with the matter and had reached a lawful conclusion while dismissing the application of the petitioner under section 265-K, Cr.P.C. The impugned order does not appear to have been passed in any arbitrary, capricious or perverse manner nor it has been passed in a sketchy or a slipshod manner. The arguments of the learned counsel for the petitioner are not tenable, hence, the impugned order does not call for any interference by this Court. For the foregoing reasons, the instant petition is dismissed. N.H.Q./E-7/L Revision dismissed.