Full Judgment
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl.Misc.not M-8229 of 2013 DATE OF DECISION:September 13,2013 Balvir Singh and others …….Petitioners Versus State of Punjab and another ……Respondents CORAM:- HON'BLE MRS.JUSTICE DAYA CHAUDHARY Present: Mr.P.S.Hundal, Senior Advocate with Mr.Dinesh Trehan, Advocate for the petitioneRs.Mr.Rupam Aggarwal, DAG, Punjab.
DAYA CHAUDHARY, J.
None is present for respondent No.2, despite service.
The petitioners have approached this Court under Section 482 Cr PC for quashing of FIR No.60 of 24.5.2012 under Section 451 read with section 149 IPC (Section 323,506 IPC deleted later on).registered at Police Station Machhiwara, District Ludhiana.
Necessary facts for the disposal of the controveRs.are that vide sale deed dated 8.2.2012, petitioner No.1-Balvir Singh purchased a house consisting of three rooMs.kitchen and bathroom in Gobind Nagar, Machhiwara in the name of his wife Sukhminder Kaur.
The said house was sold out by Ram Pal Singh.
The possession Crl.Misc.not M-8229 o”
2. of the house was taken on the date of execution of sale deed.
The house constructed in the aforesaid adjoining plot having same number had already been purchased by the father of petitioner No.1-Balvir Singh.
This plot was transferred in the name of Santokh Singh son of the complainant-respondent No.2 vide transfer deed dated 13.2.2012.
A plot which was lying vacant, adjoining to the aforesaid plots also belongs to father of petitioner No.1.
A common gate meant for the vacant plot belongs to the father of petitioner No.1 and father in law of respondent No.2.
The aforesaid gate is the only way to make entry in the house of petitioner No.1 and respondent No.2.
On the fateful day i.e.24.5.2012, the petitioners who are in close relations with each other, along with their women folk had gone to Gurdwara at Machhiwara Sahib to take a dip in the holy Sarover.
In order to enter the house of petitioner No.1, other petitioners sent a child to open the main gate of vacant plot from inside.
There was an exchange of hot words between respondent No.2 and wife of petitioner No.1.
Irked with the act of petitioneRs.respondent No.2 got registered an FIR on 24.5.2012 under Sections 451,323,506,149 IPC at Police Station Machhiwara.
The allegations levelled in the FIR are that the petitioners had trespassed into her house and threatened with dire consequences and had given beatings to her.
During Crl.Misc.not M-8229 o”
3. investigation by senior officeRs.it has been found that no offence under Sections 323/506 IPC has been committed and, therefore, challan was ordered to be presented under Sections 451 read with section 149 IPC only.
Learned senior counsel for the petitioners argues that in the facts and circumstances of the present case, no offence under Section 451 IPC is made out, inasmuch as, the petitioners have not entered into the property in the possession of respondent No.2.
Even there was no intention of the petitioners to commit an offence of intimidation, insult or annoyance.
He further argues that provision of Section 149 IPC does not create any offence but creates an analogy of law enabling the Court to convict all the persons who are members of an unlawful assembly and, therefore, section 149 IPC is also not attracted being not substantive sentence.
The passage meant for passers is common for the petitioner No.1 and respondent No.2 as well which belongs to father of petitioner No.1 and father-in-law of respondent No.2.
On that basis, it has been submitted that no offence of criminal trespass is made out against the petitioneRs.On the other hand, learned State counsel submits that initially FIR was registered under Sections 451,323,506,149 IPC.
Subsequently, sections 323,506 IPC were ordered to be deleted.
Crl.Misc.not M-8229 o”
4. not the question which arises before this Court is as to whether the petitioners have committed an offence under Section 451 IPC or not.
There is nothing on record which suggests that the petitioners have entered into the property of respondent No.2 with a view to commit any criminal act which attracts Section 451 IPC.
In the present case, respondent No.2 has not put in appearance despite service to show that the contents of the present petition are wrong and false.
The dispute is with respect to common passage which allows respondent No.2 and petitioner No.1 to enter into their respective houses.
Even the number of both the houses are same.
For the sake of convenience, let the matter be examined from another angle that in case the petitioners entered into the passage of respondent No.2 with bonafide intention, then also no offence of criminal trespass is attributable, inasmuch as, there is nothing on record to suggest that any criminal act has been done.
If that being the position, then Section 149 IPC is also not attributable, inasmuch as, the provision of Section 149 IPC does not create any offence but creates an analogy of law to enable the Court to convict all the persons who are members of an unlawful assembly being participants in furtherance of common object.
This view has been taken in Arjan Singh and others v.
State of Punjab 2007(1) RCR (Criminal) 758 that offence punishable under Crl.Misc.not M-8229 o”
5. Section 149 IPC is not a substantive offence.
In view of the aforesaid discussion, the present petition is allowed.
Accordingly, FIR No.60 dated 24.5.2012 registered under Sections 451 read with section 149 IPC at Police Station Machhiwara and subsequent proceedings arising therefrom are hereby quashed.
September 13,2013 (Daya Chaudhary) KD Judge