In CRM-M-7673-2017-PUNJ HC- P&H HC quashes 2 summoning orders after finding no proof of existence of street upon which accused allegedly carried out illegal construction
Justice Jasjit Singh Bedi [18-05-2023]

Read Order: KULDIP SINGH & OTHERS v. STATE OF PUNJAB & ANOTHER 

Tulip Kanth

New Delhi, May 20, 2023: In a case where the allegations pertained to the illegal encroachment/construction upon a street purportedly in the use of the complainant, the Punjab and Haryana High Court has allowed the plea of the petitioners to quash the summoning orders after finding no proof of illegal construction.

“In fact, on an identical cause of action, a civil suit was instituted by the wife of respondent No.2- complainant which came to be withdrawn vide order dated 16.12.2016 (Annexure P-7). On the other hand, the institution of the present criminal proceedings on account of a pending civil dispute between the parties in which the petitioner side had succeeded cannot be ruled”, the Bench said.

The factual background of this case was that the second respondent got an FIR registered under Sections 447/427/506/148/149 IPC with the allegations that he along with the petitioners had purchased a plot and with a mutual understanding a 10 ft. wide street was left in the middle of the plot.

He had gone out for some work and when he returned, he saw that a wall had been raised in the common street. His son told him that the armed petitioners along with certain other persons had started to demolish the gutter of sewerage and had begun to raise a wall in the street. On being stopped, he (complainant’s son) was threatened & legal action was sought.

Pursuant to the registration of the FIR, an investigation was conducted which led to the filing of a cancellation report and it was a finding that as per the record of the Department of Revenue and in the sale deed, there was no mention of any street and therefore, the accused party had not raised any illegal construction upon any land/street of the complainant and there had been no demolition of any kind.

Aggrieved with the filing of the cancellation report, the complainant filed a protest petition and the Court of the Judicial Magistrate, 1st Class, Batala summoned the petitioners. Thereafter, pursuant to the re-construction of the misplaced file/record of the criminal complaint, a fresh summoning order and the petitioners were summoned once again. The aforementioned Criminal Complaint & the first as well as second summoning orders and all subsequent proceedings arising therefrom were impugned in the petition before the High Court.

The Bench noted the fact that the allegations pertained to the illegal encroachment/construction upon a street purportedly in the use of the complainant. Allegations had also been levelled regarding the demolition of a gutter of sewerage. 

After a perusal of the cancellation report and the order passed in proceedings under Section 133 Cr.P.C., the Bench opined that it was established that there was no such 10 ft. area/street in existence at the spot upon which the petitioners allegedly carried out any illegal construction. Further, there was absolutely nothing to suggest that the demolition of any gutter of sewerage had taken place. 

As regards the maintainability of the present petition, it would be relevant to mention here that pursuant to the issuance of the first summoning order, the record was lost necessitating the passing of the second summoning order. The petitioners had challenged the said summoning order which came to be withdrawn with liberty to file a fresh petition challenging the first summoning order as well. Therefore, the Bench held that no fault could be found with the conduct of the petitioners.

In light of such aspects, the Bench quashed the criminal complaint, first & second summoning orders and all subsequent proceedings emanating therefrom.