ARVIND SINGH SANGWAN, J.

1. By this order, this Court intends to dispose of the above mentioned two petitions

2. Since both the learned counsel have argued at length citing various documents and case law judgments, therefore, a detailed judgment is passed considering all facts and case laws.

3. rayer in these petitions is for quashing of the impugned order dated 1.11.2022 passed by the Revisional/Sessions Court vide which, while allowing the revision petition filed by respondent No.2, the order dated 9.8.2022 passed by the trial Court dismissing the application under Section 156(3) Cr.P.C. was set aside.

4. The facts emerging are that respondent No.2-Satish Gupta filed a complaint before the Chief Judicial Magistrate, Chandigarh under Section 156(3) Cr.P.C. against 06 persons- petitioners (in both the petitions) to register an FIR on the allegations that petitioner No.1 Arun Gupta is his real brother and vide registered Will dated 22.12.2011 executed by mother of the complainant has 74% share in Industrial Plot No.182/10 situated in Industrial Area, Phase-I, Chandigarh and 26% share was already with petitioner No.1-Arun Gupta.

5. It is stated that the property was under tenancy of M/s Metal Graphics Private Limited along with constructed portion as detailed in para 3 of the complaint. The complainant lastly received rent from the tenant Company upto 31.12.2016 and, thereafter, he filed an eviction petition against M/s Metal Graphics Private Limited, which was allowed on 8.11.2021 directing the tenant to hand over the possession.

6. It is stated that, thereafter, the Court Bailiff, in execution proceedings got delivered the possession to complainant in terms of the warrants of possession issued by the Rent Controller on 26.4.2022.

7. It is also stated that respondent No.1 to usurp the entire plot created a lease deed in favour of respondents No.2 to 4, who are his sons and daughter-in-law, who further created a sub-lease deed in favour of respondent No.5 and 6 and the entire process was to frustrate the right of the complainant over the property in dispute. It is also stated that as per the lease deed executed by respondent No.1 in favour of his son and daughter, a meager rent of Rs.50,000/- per month for a period of 10 years was fixed without any escalation/increase clause. However, the subsequent lease executed in favour of respondent No.5 is on a rent of Rs.4,50,000/- per month, which is on very higher side with escalation clause.

8. It is also stated that after the possession was delivered to the complainant on 26.4.2022 through the process of the Court, the complainant kept his electronic goods; like refrigerators, washing machines, etc. in the premises, when on 2.5.2022 he received an information that the accused in conspiracy with each other have attempted a trespass in the premises and has taken out the electronic goods by committing theft of the said articles. Some important documents were also stolen by respondents No.1 to 4 and even the entry to the plot was obstructed by parking cars and putting drums. It is also stated that the complainant after putting the electronic goods has also taken an insurance policy from ICICI Lombard on 31.4.2022 for a sum of Rs.6,00,000/-. On 4.5.2022 when the complainant visited the site, he found that some demolition was carried out by respondents No.1 to 6. It is stated that while taking the possession, by the process of Court of law, videography was done. Subsequently, respondents No.1 to 4 filed a civil suit for permanent injunction by concealing the facts. Accordingly, the complainant gave various complaints, but no action was taken and, thereafter, the instant complaint was filed before the Illaqua Magistrate. The complainant relied upon certain photographs regarding handing over the possession by the process of law, putting on the locks over the property as well as the photographs/video showing the respondents removing the electronics items from the plot and blocking the entry. It is also stated that the initial order of status qua possession granted by the Civil Judge on 31.5.2022 in favour of the petitioners was later on vacated on 14.7.2022. It is stated that the petitioners have attempted the offence of trespass and theft over the premises, however, the local police has failed to take any action. Therefore, it was prayed that the FIR be registered under the appropriate provisions of law. On receiving the complaint, the trial Court directed the SHO, Police Station to submit a status report vide order dated 21.7.2022. On this, the SHO, Police Station Industrial Area, U.T., Chandigarh submitted a report on 22.9.2022, wherein the DA (Legal) has given his opinion, which reads as under :-

“In my opinion, the possession of the premises was legally delivered to M/s Harbir Auto Mobiles by Archit Gupta, Achal Gupta and others by registered lease deed. The dispute in question is regarding the possession of the premises. The dispute is regarding the share of the premises and its possession thereof. It is not disputed that multiple litigation between the parties are going on in different civil Courts for the share of the property. Therefore, it seems to be a case of civil nature and the parties need to get the same decided from the competent Court of law and as such at this stage on the basis of the enquiry no cognizable offence is made out.”

9. Thereafter, the trial Court vide order dated 9.8.2022 dismissed the complaint with regard to issuing of a direction to register FIR under Section 156(3) of Cr.P.C. by making the following observations

“3. From the contents of complaint and documents placed on record, it is evident that there is already a litigation going on between the complainant and the accused regarding the plot in question. The complainant has placed on record some documents obtained under RTI Act from which it is apparent that legal opinion was obtained on the complaint of complainant by the police and it was opined that case seems to be of civil nature and the parties need to get the same decided from the competent Court of law. At this stage, after going through the contents of the complaint and documents available on record, this Court is of the view that no ground is made out to invoke the jurisdiction of this Court to direct registration of FIR under Section 156(3) Code of Criminal Procedure,1973. Accordingly, the present Criminal Misc. Application for registration of case under Section 156(3) Code of Criminal Procedure, 1973 stands dismissed.

4. Case be registered as IPC complaint. Now to come up on 26.9.2022 for preliminary evidence of the complainant at own responsibility.”

10. The complainant, thereafter, preferred a revision before the Court of Sessions under Sections 397, 399, 401 IPC. It was contended in the grounds of revision that DSP, Sub Division (East) on 6.5.2022, has given a report regarding commission of offence which was ignored by the trial Court and apart from other grounds taken, it was submitted that the prayer for registration of the case under Section 156(3) Cr.P.C. be allowed by setting aside the impugned order dated 9.8.2022.

11. During the pendency of the petition before Court of Sessions, the respondent No.2 appeared and moved an application for placing on record certain documents as Annexures R1 to R10, which are filed in Court and taken as Marks ‘A1’ to ‘A14’ as these are not filed by petitioners along with both petitions, despite the fact that these are on record of both Courts below.

12. The Revisional Court/Sessions Judge, Chandigarh vide order dated 1.11.2022 allowed the revision filed by complainant by making the following observations :

“15. So, in view of the aforesaid authoritative pronouncements, it is clear that when an application is moved under Section 156(3) Cr.P.C., the Magistrate has to examine from the facts contained in the application whether it discloses a cognizable case or not. If it fulfills the requirements, he has to issue such an order and beyond that there is no scope for any application of mind for any other purpose. An application under Section 156(3) Cr.P.C. just desires an order for police to investigate and nothing more. Further, Section 154 Cr.P.C. clearly provides that registration of FIR is mandatory if the information discloses commission of a cognizable offence.

16. Now, coming to the facts of the present case. The applicant has claimed that he is co-owner of the plot in question and possession of the tenanted premises was delivered to him by the Bailiff through process of the Court, but the respondents in collusion with each other have trespassed into the said premises and the articles of the applicant which were kept by him in the premises were stolen. However, learned trial Court has only observed that as the litigation regarding the said plot between the parties was going on and as per legal opinion obtained by the police, the matter is of civil nature, hence no ground was made out for registration of the case under Section 156(3) Cr.P.C. and it was treated as IPC complaint. A careful perusal of report of DSP Udaypal Singh, Sub Division East, Chandigarh dated 6.5.2022 reveals that possession of the premises was given by Bailiff through Court order to one petitioner and again possession of same portion was given by equivalent Court to other petitioner through Bailiff, throwing out the articles of possessor by tenant, blocking of passage by tenant Harbir Singh depicts the peculiar position. Respondent No.1 gave the property on lease to his sons and daughter-in-law i.e. respondents No.2 to 4 for meager lease money. They leased the property further for huge lease amount. Such act cannot be prima facie considered bona fide. If some cognizable offence is committed regarding property under civil litigation, then who is affected by such criminal act can initiate the criminal proceedings. The Civil Court cannot punish a man for criminal offence. The learned trial Court without appreciating the facts of the case passed the impugned order that there was opinion that case seemed to be of civil nature. The learned Court was required to make its own opinion and then was to pass the order. Learned Court also treated the application as complaint which is against law as held in case Ram Anuj Dubey (supra).

17. In view of the above discussion and without discussing the merits of the case, the revision petition is allowed and the impugned order dated 9.8.2022 passed by the learned Court is hereby set aside and the matter is remanded back to the learned trial Court to pass fresh order on application under Section 156(3) Cr.P.C. as per law. The applicant/counsel is directed to appear before the learned trial Court on 11.11.2022. Copy of the order along with trial Court record be sent back. Revision file be consigned to record room.”

13. The present two petitions have been filed by two sets of the petitioners.

14. The first petition is filed by Arun Gupta and family members and the second by Harbir Singh and Maneet Singh, who have been given sub-lease by petitioners No.2 to 4, after they were given a lease by petitioner No.1 Arun Gupta.

15. Counsel for the petitioners has raised the following arguments:-

(a) The revision before the Court of Sessions challenging the impugned order was not maintainable. In support of the arguments he has referred an order passed by this Court in CRM-M-37402-2021 Hemant Kohli Vs. State of Haryana, wherein it was observed that if the order is an interlocutory order under Section 397(2) Cr.P.C., the powers of revision formed by sub-section (1) shall not be exercised.

Counsel for the petitioners has submitted that the co-ordinate Bench has relied upon a judgment of another co-ordinate Bench in 2019(3) RCR (Criminal) 372 M/s Sujan Multiports Limited Vs. State of Haryana, wherein a similar view was taken.

In this case, on a concession given by the counsel for petitioners that impugned order is an interlocutory order, revision was dismissed.

Counsel for the petitioners has next argued that the judgment relied upon by the revisional Court of the Allahabad High Court in Ram Anuj Dubey Vs. State of U.P., 2003(47) AcrC 140, per incurium is not the correct law in view of the Full Bench judgment of Allahabad High Court in Ram Babu Gupta Vs. State of U.P., 2001(3) RCR (Criminal) 698, as one of the point before the Full Bench was that whether it is a correct view that an applicant before the Magistrate can pray only for registration or investigation of a case and such an application will not become complaint as defined in Section 2 of the Criminal Procedure Code.

Counsel for the petitioners has submitted that it is held by the Full Bench that the Magistrate has to deal with facts as constitute cognizable offence and for all practical purposes, even such application would be a complaint.

Counsel for the petitioners has further argued in the light of the bar contained under Section 397(2) of Cr.P.C., the revision is not maintainable against the interlocutory order and, therefore, the revisonal Court has wrongly exercised the jurisdiction as the Magistrate while declining the prayer under Section 156(3) Cr.P.C. has further directed to register the same as IPC complaint and proceedings were not culminated. Therefore, the order of the Magistrate is an interlocutory order.

Counsel for the petitioners has further relied upon the judgment of Hon’ble Supreme Court in K.K. Patel Vs. State of Gujrarat, 2000(2) RCR (Criminal) 863, wherein it is held that the feasibility test regarding the objection raised by a party is that if the order culminate the proceedings, it will not be an interlocutory order.

Counsel for the petitioners has also relied upon another judgment of Hon’ble the Supreme Court in Girish Kumar Suneja Vs. CBI, 2017(3) RCR (Criminal) 665, wherein a similar view has been taken that the Court cannot exercise its revisional jurisdiction against the interlocutory order. Para 20 of the judgment reads as under :-

“20. The Statement of Objections and Reasons of the Cr.P.C. state that the Government kept in mind the following for the purposes of enacting the Cr.P.C.:-

(i) “an accused person should get a fair trial in accordance with the accepted principles of natural justice ;

(ii) every effort should be made to avoid delay in invstigation and trial which is harmful not only to the individuals involved but also to society; and

(iii) the procedure should not be complicated and should, to the utmost extent possible, ensure fair deal to the poorer sections of the community.”

16. As regards Section 397(2) of the Cr.P.C. paragraph 5(d) of the Statement of Objects and Reasons mentioned that :

“(5) Some of the more important changes proposed to be made with a view to speeding up the disposalof criminal cases are -

(d) the powers of revision against interlocutory orders are being taken away, as a it has been fond to be one of the main contributing factors int eh delay or disposal of criminal cases;”

17. In reply to the debate on the subject, it was stated by Shri Ram Niwas Mirdha the concerned Minister that :

“it was stated before the Select Committee that a large number of appeals against interlocutory orders are filed with the result that the appeals got delayed considerably. Some of the more notorious cases concerns big business persons. So, this new provision was also welcomed by most of the witnesses as well as the Select Committee. This was a well-thought out measure so we do not want to delete it.”

18. As noted in Amar Nath the purpose of introducing Section 397(2) of the Cr.P.C. was to curb delays in the decision of criminal cases and thereby to benefit the accused by giving him or her a fair and expeditious trial. Unfortunately, this legislative intendment is sought to be turned topsy turvy by the appellants.”

It is held in this judgment that there are three types of orders; final, intermediate and interlocutory. A revision lie against final order but not against interlocutory order. However, a revision lie against intermediate order which is one if passed in a certain way, the proceeding would terminate but if passed in another way, the proceeding would continue.

(b) Counsel for the petitioner has next argued that there is no prohibition for a Magistrate from converting an application filed under Section 156(3) Cr.P.C. into a complaint case. Counsel has further submitted that the findings recorded by the revisional Court in Para 15 is erroneous as there is no bar for a Magistrate to convert an application under Section 156(3) Cr.P.C. in a complaint case.

Counsel has further submitted that the revisional Court has not looked into the provision of Section 190 Cr.P.C., according to which a Magistrate can take a cognizance of offence on receiving a complaint of facts, which constitute an offence. Counsel has further submitted that the findings recorded by the revisional Court is not correct in terms of the judgment of Full Bench of Allahabad High Court in Ram Babu Gupta’s case (supra).

(c) Counsel for the petitioners has next argued that the revisional Court further exceeded its jurisdiction in directing the trial Court to pass an order in a particular manner. Counsel has referred to Para 16 of the impugned order to submit that certain observations are made on the merits of the case and has directed the trial Court to form its own opinion and pass a fresh order. Counsel has further submitted that on one hand the revisional Court remanded the case back to the trial Court, on the other hand by issuing specific directions, the Magistrate is left with no option to disagree with the observation and will have to pass an order for registration of FIR in a mechanical manner. Counsel has relied upon a judgment of Hon’ble Supreme Court Madan Mohan VS. State of Rajasthan, 2018(1) RCR (Criminal) 614, wherein it is held that superior Court cannot issue directions of mandamus to subordinate Courts commending them to pass an order in a particular manner on an application filed by one party. It is, thus, argued that the observations of the revisional Court are liable to be set aside.

(d) It is next argued that the revisional Court has further erred in forming an opinion that a the prima facie cognizance offence is made out in the case. Counsel has further submitted that the allegations against the petitioners are regarding criminal trespass and theft in the property. It is submitted that even as per the complainant, he has 74% share and petitioner No.1 has 26% share. Therefore, the petitioner is co-onwer in the property and the allegation of trespass and theft are not sustainable. In support of his arguments, counsel for the petitioners has relied upon judgment of this Court Jaspal Singh Vs. State of Punjab, 2011(3) RCR (Criminal) 190 and Gurmeet Singh Vs. Rachhpal Singh, 2004(2) RCR (Criminal) 72. Counsel for the petitioners has, thus, argued that the offence of criminal trespass or threat cannot be attracted at the instance of one co-owner against the other co-owner/co-sharer of the property.

(e) Counsel for the petitioner has lastly argued that there was no illegality in the order passed by the Magistrate, therefore, the revisional Court has wrongly invoked the revisional jurisdiction. Counsel has argued that the revisional jurisdiction can be exercised only when there is a patent illegality in the impugned order and from the perusal of the order passed by the Magistrate, only one view is possible that after considering the fact, he has declined the prayer under Section 156(3) Cr.P.C. and directed treating it as IPC compliant.

Counsel for the petitioner has relied upon the judgment of the Hon’ble Supreme Court in Beer Singh Vs. Mukesh Kumar, 2019(2) RCR (Criminal) 1, wherein it is held that the revisional Court will not interference in an order passed by the Court having jurisdiction.

Counsel for the petitioner has further referred to the judgment of Hon’ble Supreme Court in 2020 AIR(2) SC 2921 S. Kasi Vs. State through the Inspector of Police, wherein an observation has been made that the Single Judge should follow the jurisdictional discipline by not taking a contrary and diagonically opposite view to one taken by the another Single Bench and if there is any doubt, the co-ordinate Bench can refer the matter to a larger Bench.

19. In reply, the learned Senior Counsel appearing for respondent No.2 has argued that the revision before the Court of Sessions was maintainable against the impugned order dismissing prayer of complainant to direct registration of FIR under Section 156(3) Cr.P.C.

20. Learned Senior Counsel has relied upon the judgment dated 7.9.2022 passed in CRM-M-21561-2022 Jaswinder Singh and others Vs. Sukhwinder Singh Bhatia and others, wherein it is held as under :-

“In view of the law laid down by the Supreme Court in Priyanka Srivastava’s case (supra) even though the revisional Court was hearing revision against the order passed under Section 156(3) it cannot be denied that it was exercising power under Section 399 Cr.P.C. Dehors the stage of the complaint, the revisional Court was bound to hear the petitioners in view of the mandate of Section 401 Cr.P.C. read with Section 399 Cr.P.C.

Thus, finding the impugned order passed by the revisional Court to be bad for having been passed without hearing the petitioners and in violation of requirement as contemplated under Section 401(2) Cr.P.C., the present petition is allowed. The impugned order dated 2.5.2022 is hereby quashed.”

21. Learned Senior Counsel has argued that once the trial Court has held that the prayer of the petitioner under Section 156(3) Cr.P.C. is declined, the revisional Court had jurisdiction to hear the arguments.

22. Learned Senior Counsel has next relied upon another judgment of this Court, wherein it is held that the order of a Magistrate passed an order under Section 156(3) Cr.P.C. directing the police to exercise the plenery bear of investigation of cognizance of offence under Chapter XII of Cr.P.C. cannot be said to be an interlocutory order and remedy of revision lie.

23. A similar view is taken by the Delhi High Court in 2017(1) RCR (Criminal) 704, Nishu Wadhwa Vs. Siddharth Wadhwa and another holding that revision petition filed before Court of Sessions is maintainable and direction was issued to investigating agency to investigate.

24. In Nishu Wadhwa’s case, the Delhi High Court has relied upon a Full Bench of the Allahabad High Court in 2015(1) RCR (Criminal) 414, Jagan Nath Verma and others Vs. State of U.P. and another, wherein the earlier Full Bench judgment of the Allahabad High Court in 2011(3) RCR (Criminal) 160, Father Thomas Vs. State of U.P. and another was distinguished. In Jagan Nath Verma’s case, the following conclusion has been drawn by the Full Bench :-

“In view of the discussion above and for the reasons which we have furnished, we have come to the following conclusion :-

(i) Before the Full Bench of this Court in Father Thomas, the controversy was whether a direction to the Police to register a First Information Report in regard to a case involving a cognizable offence and for investigation is open to revision at the instance of a person suspected of having committed a crime against whom neither cognizance has been taken nor any process issued. Such an order was held to be interlocutory in nature and, therefore, to attract the bar under sub-Section (2) of Section 397. The decision in Father Thomas does not decide the issue as to whether the rejection of an application under Section 156(3), would be amenable to a Revision under Section 397, by the complainant or the informant, whose application has been rejected;

(ii) An order of the Magistrate rejecting an application under Section 156(3) of the Code for the registration of a case by the police and for investigation is not an interlocutory order. Such an order is amenable to the remedy of a Criminal Revision under Section 397; and

(iii) In proceedings in revision under Section 397, the prospective accused or, as the case may be, the person, who is suspected of having committed the crime is entitled to an opportunity of being heard before a decision is taken in the criminal revision.

The reference to the Full Bench is, accordingly, disposed of. The proceedings shall now be placed before the appropriate Bench in accordance with the roster of work for disposal in light of the principles laid down in this decision.”

25. The learned Senior Counsel has, thus, relied upon another judgment of Hon’ble the Supreme Court in (2004) 7 Supreme Court Cases 768, [LQ/SC/2004/1127] Gangadhar Janardan Mhatre Vs. State of Maharashtra and others, to submit that the report forwarded by the Magistrate that no case is made out against the accused is not binding and the Magistrate can ignore the conclusion arrived at by the Investigation Officer and can apply his mind independently to the facts emerging either to take cognizance by exercising the power under Section 190(1)(b) Cr.P.C. or to direct further investigation to be made by the police under Section 156(3) Cr.P.C.

26. Learned Senior Counsel, on merits, has submitted that respondent No.2-complainant before the Courts below has placed on record the various documents Annexures C1 to C15, which reflect that the respondents No.1 to 6 have adopted a novel method to illegally take the possession of the entire plot though the complainant has 74% share in the same by fabricating the lease deed by respondent No.1 in favour of respondents No.2 to 4, who are the son and daughter-in-law for a sum of Rs.50,000/- per month for a period of 10 years without any escalation/increase clause and immediately, thereafter, respondents No.2 to 4 fabricated another lease deed to respondents No. 5 and 6 for a sum of Rs.10,00,000/- per month with escalation clause and have started claiming entire rent by playing fraud with the complainant. The learned Senior Counsel has argued that not only this, the primary allegation of commission of theft by the petitioners, who have stolen the electronic items of the complainant; like refrigerator, washing machine, etc., which were stored in the premises as even an insurance cover was taken for the same is proved, therefore, the ingredients of theft are made itself from the complaint as there are certain CCTV footage/photographs also.

27. Learned Senior Counsel has then relied upon the order dated 14.9.2021 (Annexure P14 with the petition) vide which the Rent Controller dismissed an application of petitioner No.1 in the execution petition filed by the complainant seeking warrants of possession. Petitioner No.1 Arun Gupta has moved an application under Order 1 Rule 10 CPC for being impleaded as a party. However, the same was dismissed by the learned Rent Controller on 14.9.2021.

28. Learned Senior Counsel has submitted that, later on, vide warrants of possession, the Bailiff had handed over the possession of the entire plot to respondents No.2-Satish Gupta, decree holder on 26.4.2022 in the presence of the witnesses. It is argued that since the possession of the entire property was handed over to complainant by process of law, in subsequent proceedings complainant is in legal possession.

29. Learned Senior Counsel has also referred to another proceedings dated 26.4.2022 submitted by the Bailiff in the Court of the Rent Controller regarding execution of the warrants of possession.

30. Learned Senior Counsel submitted that all these proceedings show that the complainant has taken the possession over the entire plot No.182/10, Industrial Area, Phase I, Chandigarh and was in legal possession when the petitioners forcibly tried to take the possession and removed electronic items from the spot and blocked the passage, which clearly show the commission of offence of theft.

31. Learned Senior Counsel has next argued that the manner in which, petitioner No.1 Arun Gupta created a lease deed in favour of respondents No.2 to 4, son and daughter-in-law and they further created another lease deed in favour of the petitioners Harbir Singh and another show that, in fact, it is a fraud played upon with the respondent No.2 to oust him from the legal possession. It is submitted that Arun Gupta allegedly taken possession on 18.1.2019, however, the eviction order was passed in favour of complainant Satish Gupta on 14.9.2021 and when execution was filed, petitioner filed objections, which were dismissed and, therefore, haphazardly, the two lease deeds were fabricated after 03 years of allegedly taking possession by Arun Gupta.

32. Learned Senior Counsel for respondent has next argued that the Civil Suit which is referred to in the opinion of the District Attorney forming basis by the trial Court that there is a civil dispute pending between the parties is, in fact, relating to a civil suit which was filed after the illegal possession was taken by the petitioners i.e. commission of offence. Learned Senior Counsel has submitted that mere fact that after the commission of offence by the petitioners, petitioner Arun Gupta and others have initiated the civil proceedings, will not dilute the initiation of criminal prosecution as wrongly held in the opinion of the police/DA (Legal)

33. In support of the arguments, the learned Senior Counsel has submitted that in the lease deed dated 20.1.2022 executed by Arun Gupta in favour of his son Achal Gupta and his wife Mehak Gupta and another son Archit Gupta, it is stated that he has handed over the entire possession of plot No.182/10, Industrial Area, Phase-I, Chandigarh to second party, whereas it is case of the petitioner No.1 himself that he is owner to the extent of 26% share only and respondent No.2 is in possession of 74% share. Learned Senior Counsel has then referred to the second lease deed dated 20.2.2022 executed by the petitioners No.2 to 4 in favour of petitioners Harbir Singh and others, wherein again it has been mentioned that the possession of the entire plot/Shed No.182/10, Industrial Area, Phase 1, Chandigarh has handed over to them on a rent of Rs.4,25,000/- per month with an escalation clause.

34. Learned Senior Counsel submitted that on the face of it is a fraud played upon the respondent No.2, who is the owner of 74% share of the property and without his consent, all the petitioners have fabricated two successive lease deeds to take illegal possession over the plot in dispute.

35. Learned Senior Counsel has then referred to the enquiry report of the police. As per the report submitted by the DA (Legal) dated 12.7.2022, wherein it is noticed that one suit is filed by petitioner Arun Gupta against Satish Gupta and Harbir Singh and one case is pending regarding the Will.

36. Learned Senior Counsel has lastly referred to the report dated 6.5.2022 of DSP, Sub Division (East), which reads as under :-

“9. On inspection of said plot by undersigned, it has been observed that one lock put up by Bailiff on side gate, front gate was covered with loose bricks and after after removal of bricks, two locks were found intact on door, the inside wall portion where lock was put on small window by Bailiff was found broken, the entry gates were blocked by parking new Mahindra Vehicles in row and inside kept new refrigerators were found lying outside on road. (Photos attached)

10. On photos, new fridges are seen lying in area whose possession was handed over to Satish Gupta by Bailiff Sh. Bharat, Bailiff seen along with Arun Gupta, Harbir’s son, and other persons, PCR vehicle also present on spot. Harbir himself also present, Harbir’s employees removing new fridges from inside building and thrown on road.

Conclusion

The whole date wise events show that initial eviction orders were made by Rent Controller Court of Ms. Mamta Kakkar on petition of Arun Gupta, 26% plot share owner and possession from tenant M/s Metal Graphics given to him. Later on, same equivalent Court of Sh. Jaspreet Singh Minhas, issued eviction orders in favour of Sh. Satish Gupta (Claiming owner of 74% share) from M/s Metal Graphics and eviction orders executed by Bailiff, possession given to Shri Satish Gupta whereas, M/s Harbir Automobiles claims to be tenant for last three months of the area earlier possessed by M/s Metal Graphics as tenant. In RC No.547/2017, Satish Gupta Vs. M/s Metal Graphics, Arun Gupta filed a petition to become party and after hearing, same was dismissed by Judge Sh. Jaspreet Singh Minhas on 14.9.2021. Further, in this petition, Judge, vide para No.4 observed “Once the said application was dismissed, the only remedy available to the applicant was to file the revision or appeal against the said order” but no appeal filed by applicant Arun Gupta. So, in view of the all above mentioned facts, posession given by one Bailiff by Court order and again possession of the same portion given by equivalent Court to other petitioner through Bailiff, throwing out the articles of possessor by tenant, blocking of passage by tenant Harbir Singh depicts the peculiar position. Hence, legal opinion of Dy.D.A. (L) may please be taken, if any cognizable offence is made out in order to further act in this dispute.”

37. Learned Senior Counsel has submitted that as per the report it is apparent that petitioner Harbir Singh and his son were present at the spot and his employees were removing the electronic items like; refrigerator, washing machine etc. from inside the building and throwing it on the road, which shows that the commission of offence of theft is made out.

38. The learned Senior Counsel has submitted that mere fact that a civil litigation was pending between the two brothers regarding the Will has no bearing on the commission of offence of trespass, theft or fraud, as during the pendency of the said civil suit, the previous owner M/s Metal Graphics Private Limited was paying the rent to the extent of 26% to petitioner No.1 Arun Gupta and 74% to complainant Satish Gupta, as it has come in the investigation of the DSP (East) as well and also noticed in the objections raised by M/s Metal Graphics Private Limited in the written statement filed in the eviction petition by Arun Gupta before the Rent Controller, Chandigarh.

39. The learned Senior counsel further submits that second civil suit was filed by Arun Gupta only after commission of the offence on 3.5.2022 and in that suit he prayed for a decree of permanent injunction, initially status quo was granted but, later on, the Court did not extent the same and, therefore, the District Attorney has miserably failed to apply its mind that the nature of the civil suit and the nature of the allegation in the instant complaint are not relating to the same incident as in the first litigation Arun Gupta has challenged the Will and in the second suit, after committing the offence he has tried to obtain injunction from the civil Court but the same was not granted.

40. In reply, the counsel for the petitioners has submitted that, in fact, both petitioner Arun Gupta and respondent Satish Gupta had filed two eviction petition against M/s Metal Graphics Private Limited and both were decreed and vide proceedings dated 20.11.2019, the possession of the entire plot was handed over to Arun Gupta in terms of the eviction order dated 22.1.2018.

41. Counsel has then submitted that, later on, when respondent No.2 also filed the eviction petition against M/s Metal Graphics Private Limited, again and an order of eviction was passed and that is only, thereafter, the possession of the plot was handed over by the Bailiff, to respondent No.2-Satish Gupta on 26.4.2022.

42. Learned counsel appearing for the U.T., Chandigarh has also made similar submission on the basis of the inspection report dated 6.5.2022 of DSP (East) and further submitted that the report was submitted before the trial Court after obtaining the opinion of the DA (Legal).

43. In support of the arguments, learned counsel has relied upon the judgment of the Hon’ble Supreme Court in Kamladevi Agarwal Vs. State of West Bengal and others, (2002) 1 SCC 555, [LQ/SC/2001/2401] wherein it is held that where a litigation is pending before the civil Court regarding the validity of a document, the Court should be slow in interfering by observing that the dispute is of civil nature and the criminal proceedings cannot be quashed as the element of forgery and fraud is always there in civil nature as well.

44. Similar view has been taken by the Hon’ble Supreme Court in 2013 (2) RCR (Criminal) 26, Arun Bhandari Vs. State of U.P., wherein it has been held that when the allegations of cheating are there, it cannot be stated that the case is purely of civil nature. It was held where the conduct of a person prima facie show that he had intention to cheat from the state of negotiation the criminal prosecution cannot be quashed.

45. Learned Senior counsel has also relied upon another judgment of Hon’ble the Supreme Court in 2015(3) RCR (Criminal) 167, Gangadhar Vs. State of Assam wherein again it has been held that mere pendency of a civil proceedings with regard to the offence of cheating or forgery is no ground to quash the criminal proceedings when the allegation in the criminal case are of serious nature.

46. Learned Senior Counsel has, thus, argued that if the matter is looked into the stage when the tenant M/s Metal Graphics Private Limited was paying rent to the extent of 26% to petitioner Arun Gupta and 74% to complainant Satish Gupta, there was no dispute and it is only because of the dishonest intention of petitioner No.1 Arun Gupta that he filed a petition for eviction against the tenant without impleading the complainant as a party, despite an objection raised by the tenant in the written statement as noticed in the order of the Rent Controller and then at the back of complainant Satish Gupta, he procured the proceedings of taking the possession of the entire plot on 18.1.2019.

47. Learned Senior counsel has submitted that not only this when the eviction order was passed in favour of complainant Satish Gupta against the tenant, petitioner No.1 Arun Gupta moved an application for being impleaded as a party, which was declined by the Executing Court/Rent Controller and no further appeal or revision was filed and, thereafter, in pursuance of the eviction order the Bailliff had handed over the possession of the plot in dispute to the complainant, wherein he has kept his electronic goods. In the intervening period, all the petitioners, in conspiracy with each other, were fabricating two lease deeds in quick succession, i.e. on 14.1.2022 petitioner No.1 Arun Gupta executed a lease deed in favour of his son and daughter-in-law, i.e. petitioners No.2 to 4 on a meager rent of Rs.50,000/- per month with escalation and immediately, thereafter petitioners No.2 to 4 executed another lease in favour of petitioner Harbir Singh on 2.2.2022 for a rent of Rs.4,25,000/- per month with an escalation clause.

48. Learned Senior Counsel submitted that both these documents are fabricated documents as nothing has been stated in both the lease deed about the right of the petitioner, who had 74% share and nothing is stated as in one manner the petitioners will pay the rent to the complainant. Learned Senior Counsel submits that a criminal conspiracy of all the petitioners to usurp the property by ousting the petitioner, who is the owner to the extent of 74% is apparent on record apart from committing the offence of criminal trespass and theft they have, therefore, the revisional Court has rightly passed the order which requires no interference.

49. It is next argued that where civil proceedings are initiated after criminal proceedings, complainant is not precluded from setting in motion, the proceedings in criminal law. A reliance is placed on judgment of Hon’ble the Supreme Court in (2020) 14 SCC 552 [LQ/SC/2020/46 ;] ">(2020) 14 SCC 552 [LQ/SC/2020/46 ;] [LQ/SC/2020/46 ;] K. Jagdish Vs. Udaya Kumar G.S. and another, where it is held that civil and criminal remedies are not mutually exclusive can run side by side and differ in content and consequence and criminal prosecution cannot be thwarted at initial stage merely because civil proceedings are also pending..

50. It is also submitted that right of private defence based on possession can be taken by a co-owner only if the action of handing over of physical possession is proved. The learned counsel relied upon (2009) 7 SCC 614, [LQ/SC/2009/1258] Ram Pat and others Vs. State of Haryana, wherein Hon’ble the Supreme Court held that if a co-owner is in settled possession and other person purchased share, there is presumption of settled possession under Section 110 of the Indian Evidence Act. The learned counsel submitted that once it is admitted case that till 2016 the tenant was making 74% payment to Satish Gupta, his possession is proved.

51. The learned Senior Counsel next argued that offence of trespass is a continuing offence and relied upon (1991) 2 SCC 141 [LQ/SC/1991/87] Gokak Patel Volkart Limited Vs. Balu Jeevappa Upparatti and another, to submit that Hon’ble Supreme Court has held that even if possession was permissive at time of inception but become illegal on retirement of an employee, it amounts to trespass which is a continuing offence under Section 472 Cr.P.C. for purpose of Section 468 of Cr.P.C. The learned senior counsel, thus, submits that the payment of rent/lease every month by petitioner Harbir Singh and others to petitioners Arun Gupta and others, itself is a continuing offence of criminal trespass and, therefore, in equity of justice and fair play, petitioners Harbir Singh.

52. fter hearing learned counsel for the parties, the following undisputed facts emerges :-

22.11.2022 As per the Will dated 22.11.2012 of mother of parties Geeta Devi, petitioner Arun Gupta was already co

owner of the plot to the extent of 26% share, whereas Satish Gupta was given 74% share. The property was on rent with M/s Metal Graphics Private Limited and the tenant was paying rent to both brothers in ratio of 26% and 74%.

22.1.2016 In a rent petition filed by Arun Gupta against M/s Metal Graphics Private Limited (the tenant) and the Managing Director and Directors, the Rent Controller, Chandigarh had passed an order of eviction. A careful perusal of this order would show that the petitioner stated that he was owner to the extent of 26% share and his mother Geeta Devi was owner to the extent of 74% share and, later on, and as per the family settlement he became the owner of the entire property.

In the written statement filed on behalf of the Metal Graphics Private Limited a specific objection was raised by the tenant that Arun Gupta’s brother Satish Gupta has a major share of 74% and has also filed a rent petition and, therefore, Arun Gupta cannot claim the possession over the entire property. However, the Rent Controller, without impleading Satish Gupta, qua whom an objection was raised by the tenant itself that he is owner of 74% share, allowed the Rent Petition in favour of Arun Gupta, petitioner No.1 and no findings were recorded regarding the rights of Satish Gupta.

18.1.2019 Later on, as per own case of the petitioner No.1., the Bailliff handed over the possession of the entire plot from tenant M/s Metal Graphics Private Limited to petitioner Arun Gupta on 18.1.2019. It is submitted that Arun Gupta allegedly taken possession on 18.1.2019, however, the interim order was passed in favour of complaint Satish Gupta on 14.9.2021 and when execution was filed, petitioner filed objections, which were dismissed and, therefore, haphazardly, the two lease deeds were fabricated after 03 years of allegedly taking possession by Arun Gupta.

8.11.2021 The eviction petition filed by Satish Gupta, was allowed against tenant M/s Metal Graphics Private Limited and execution was filed for granting possession for the disputed plot in which petitioner No.1 filed an application under Order 1 Rule 10 CPC for impleading as a party.

14.9.2021 On 14.9.2021, the application was dismissed by the Rent Controller/executing Court by observing that even on an earlier occasion a similar application was filed, which was dismissed. However, this order was not challenged before any higher Court and became final.

14.1.2022 Petitioner No.1 executed a lease deed in favour of petitioner No.2 to 4 i..e sons and daughters of the entire plot for a sum of Rs.50,000/- per month without any escalation clause for a period of 10 years w.e.f. 1.2.2022 to 31.1.2032.

In lease deed it is mentioned that the entire possession of the disputed plot is handed over to petitioners No.2 to 4

2.2.2022 In quick succession, the petitioners No.2 to 4 executed a rent deed M/s Harbir Automobiles Private Limited through petitioner Harbir Singh and thereby handed over the possession of the entire disputed plot on a rent at Rs.4,25,000/- per month for a period of 9 years with an escalation clause per year.

In both these lease deeds there is no reference to share of the Satish Gupta complaint regarding the manner in which proportionate the rent will be paid to him or as to whether any rent is to be paid to him.

26.4.2022 The Bailliff in execution of warrant of possession, issued by the Rent Controller and handed over the possession to Satish Gupta of the entire plot. In proceedings, the Bailiff reported the plot is lying vacant at spot.

Thereafter, as per the complaint, Satish Gupta has stored his electronic items like; refrigerator, washing machine etc., which were allegedly stolen by the petitioners and some video was also made in this regard showing the presence of even petitioners Harbir Singh and his son.

3/4.5.2022 As per the allegation in the plaint, the petitioners have committed the theft of electronic items.

6.5.2022 DSP, Sub Division (East), Chandigarh submitted the a report in which it is stated that disputed plot was earlier owned by Om Parkash Gupta, father of both the parties and 26% share was given to Arun Gupta and 74% share was with Geta Devi, who had made Will in favour of Satish Gupta. It is also reported that the rent paid by the previous tenant was shared in the ratio of 26% by Arun Gupta and 74% by Satish Gupta. Thereafter, the the eviction petitions were separately filed by Arun Gupta and Satish Gupta in which possession is later on given to Satish Gupta. Thereafter, the two lease deeds were prepared by Arun Gupta and other in favour of M/s Harbir Automobiles Private Limited. The inspection part is already reproduced above. It is reported that new refrigerators were found lying outside the road (Photos attached) and presence of Harbir Singh, his son along with his employees removing the refrigerators was also reported. Thereafter, the opinion of the DA was sought.

In the opinion of the District Attorney (Legal), as noticed above, it is stated that there is a civil litigation between the parties and, therefore, no cognizable offence is made out.

31.5.2022 The petitioner Arun Gupta filed a suit for permanent injunction against Satish Gupta and status quo was ordered.

8.6.2022 Senior Superintendent of Police, U.T., Chandigarh directed SDPO (East) to inspect the property, scrutinize the video clips submitted by Satish Gupta in pen drive and submit a report.

It was concluded in the report that a civil litigation pending between the parties.

14.7.2022 The status quo order passed by the civil Court in favour of Arun Gupta was not extended.

In compliance of the directions issued by the SSP, Chandigarh to the DSP, Sub Division (East), U.T., Chandigarh with regard to the various complaints, an enquiry was conducted wherein regarding theft of electronic items, it is stated that in the video recording available in the pen drive, provided by Satish Gupta, some labours can be seen removing the electronic items out of the said plot/building and placing them outside on road.

53. After hearing learned counsel for the parties, I find no merit in the above petitions for the following reasons :-

(1) It is apparent that prior to 2016 when the previous tenant M/s Metal Graphics Private Limited was in possession of the property, he was paying the rent to a tune of 24% to petitioner No.1 Arun Gupta and 74% to complainant Satish Gupta, who are two brothers. This fact is clear from the report of DSP (East) as well as the objections taken by the tenant before the Rent Controller in his written statement.

(2) In a novel method to take the illegal possession of the entire property, petitioner No.1 filed eviction petition against M/s Metal Graphics Private Limited without detailing the right of Satish Gupta or impleading him as a party despite the objection raised by the tenant. However, the Rent Controller passed an order of eviction in which the petitioner No.1 claimed that he was given possession of the entire plot by the Bailiff. In the petition for eviction filed by Satish Gupta against the same tenant subsequently another order of eviction was passed. In execution of the said proceedings, petitioner No.1 Arun Gupta filed objections/application for being impleading as a party that he is in possession of the entire plot, however, the said application was dismissed by the Executing Court/Rent Controller. However, no appeal or revision was filed against the same. In pursuance of to the eviction order, through warrants of entire possession, the Bailiff handed over the possession of the plot to complainant Satish Gupta. Thereafter, locks were put by the Bailiff and the complainant stored electronic items like; the refrigerators, washing machines, etc. at the spot and also obtained an insurance cover for the same.

(3) As per the complaintant on 3.5.2022 all the petitioners in conspiracy with each other broke open the locks of the premises and threw the electronic items out of the premises as reported by the DSP (East) in its investigation report (along with photographs) showing the presence of Harbir Singh and his son as well as the labourers at the spot. Later on, the door was blocked by parking vehicles and putting drums.

(4) The conspiracy between the petitioners is also prima facie apparent from the fact that petitioner No.1 executed a lease deed on 14.1.2022 in favour of his son and daugther-in-law, i.e. petitioner No.2 to 4 for an amount of Rs.50,000/- per month with no escalation clause and in quick succession on 2.2.2022, petitioners No.2 to 4 executed the another lease deed in favour of M/s Harbir Automobiles Private Limited through petitioner Harbir Singh and his son, in the second lease deed the rent was shown as Rs.4,50,000/- with an escalation clause. A perusal of both the lease deeds reveals that neither it is mentioned that complainant Satish Gupta is owner to the extent of 74% nor it is stated that the tenant will pay rent to the tune of Rs.74% in favour of Satish Gupta. This clearly demonstrates the conspiracy between all the petitioners (in both the petitions), who, prima facie, after committing the criminal trespass by breaking open the locks of the plot in dispute have thrown out the electronics items of the complainant. Even the preparation of the two lease deeds in a calculated manner to oust Satish Gupta of his 74% share is also primarily discloses the offence of cheating and forgery.

(5) The District Attorney without referring to any detail of civil litigation in his opinion has simply stated that civil litigation is pending though Arun Gupta only after 3.5.2022 filed suit for permanent injunction, therefore, the report of District Attorney (Legal) is apparently incorrect.

(6) The first litigation initiated by petitioner No.1 Arun Gupta is a challenge to the registered Will in favour of his brother Satish Gupta-complainant executed by his mother during the pendency of this suit. The previous tenant was paying the rent to a tune of 26% to petitioner No.1 Arun Gupta and 74% to complainant-Satish Gupta. Therefore, the same has no bearing with regard to the commission of offence of trespass, theft or cheating. Even as per own case of Arun Gupta during pendency of this civil suit, he filed eviction petition against tenant and got possession.

(7) The second civil suit, i.e. a suit for permanent injunction filed by petitioner No.1 Arun Gupta against Satish Gupta is subsequent to commission of offence and, therefore, on the date of committing the offence, i.e. 3.5.2022, there was no stay in favour of Arun Gupta and any suit filed subsequent thereto again have no bearing on the commission of any offence in view of K. Jagdish’s case (supra).

(8) The very fact that the possession was got delivered by the Executing Court/Rent Controller to complainant Satish Gupta in pursuance to the eviction proceedings after dismissing the application of petitioner No.1 Arun Gupta for impleading as a party itself show that on the date when the possession was handed over to Satish Gupta, there was no stay order from any competent Court of law. Even the trial Court/Chief Judicial Magistrate, while dismissing the prayer of the petitioner under Section 156(3) of Cr.P.C. has not applied its judicial mind, except observing that there is a report of District Attorney (Legal) on the basis of which the prayer under Section 156(3) Cr.P.C. was declined. Therefore, the order passed by the trial Court, being a totally non-speaking order as the pendency of civil litigation has nothing to dilute the commission of offence and, therefore, the revisional Court has rightly allowed the revision filed by Satish Gupta and remanded the case back.

(9) The revisional Court has rightly relied upon the judgment of Hon’ble the Supreme Court in Lalita Kumari Vs. Government of U.P., 2008 (7) SCC 164 [LQ/SC/2008/1439] [(SC) (DB)] wherein it is observed as under :-

“12. After hearing the learned counsel for the parties and from the perusal of trial Court record, I am of the view that law is very clear in regard to the provisions of Section 156(3) Cr.P.C. In Lalita Kumari Vs. Government of U.P. and others case, decided by Full Bench of the Hon’ble Supreme Court, it was observed that :-

“We feel that it is high time to give directions to the Governments of al the States and Union Territories besides their Director Generals of Police/ Commissioners of Police as the case may be to the effect that if steps are not taken for registration of FIRs immediately and copies therof are not made over to the complainants, they may move the Magistrates concerned by filing complaint petitions to give direction to the police to register case immediately upon receipt/production of copy of the orders and make over copy of the FIRs to the complainants, within twenty-four hours of receipt/production of copy of such order.”

It is further observed that :-

“Registration of FIR is mandatory under Section 154 of the Code, if the information discloses commission of a cognizable offence and no preliminary inquiry is permissible in such a situation…….”

The use of word “shall” in Section 154(1) of the Code clearly shows that legislature intent that it is mandatory to register an FIR if the information given to the police discloses the commission of a cognizable offence…..”

Therefore, the revisional Court has rightly directed the trial Court to pass a fresh order on the application under Section 156(3) Cr.P.C. as per law. Even otherwise, this Court can issue such directions in exercise of power under Section 482 Cr.P.C. as the documents of petitioner itself disclose commission of cognizable offence.

10. So far as the objection raised by the petitioners regarding maintainability of the petition is concerned, it is well settled law that once the prayer of the respondent No.3 under Section 156(3) Cr.P.C. stands dismissed by the trial Court, the revision under Section 397 Cr.P.C. was maintainable, in view of what has been discussed above as the trial Court at pre-cognizance stage directed for police report and vide the impugned order, trial Court while relying upon a factually incorrect report dismissed the prayer under Section 156(3) Cr.P.C. and further decided to treat it as IPC complaint. Therefore, in view of Full Bench judgment of Allahabad High Court in Ram Babu Gupta’s case (supra) and of Delhi High Court in Nishu Wadhwa’s case (supra), the revision before Court of Sessions was maintainable. The two judgments of this Court relied upon by petitioners are distinguishable.

54. Nothing observed in this judgment or in the order of the Revisional Court will have any bearing on the merits of the case to be decided afresh by the trial Court.

55. With the observations made above, the above mentioned petitions are disposed of.