Husband Of Property Owner Not Stranger; Has Locus Standi To File Criminal Complaint Against Trespasser: Jammu & Kashmir & Ladakh High Court

The Jammu and Kashmir and Ladakh High Court has opined that an FIR can be lodged by any person who is aware of the commission of any cognizable offence. 

The Court also found that the husband of a property owner has the locus standi to file an FIR for offences committed against such property, since he has every right to look after and protect the property of his wife.

Justice Rajnesh Oswal made these observations while hearing a plea which sought quashing of the criminal challan arising of FIR registered for commission of offences under sections 448 (Punishment for house-trespass) and 427 (Mischief causing damage to the amount of fifty rupees) of the RPC.

Whereas the Petitioner had contended that the Respondent-husband had no locus in the matter as the offences alleged pertain to the property of his wife, the Court observed,

"The respondent No. 3 being the husband of the purchaser of the property has every right to look after and protect the property of his wife and it cannot be said that the respondent No. 3 is absolutely stranger and has got no locus standi to lodge FIR. Otherwise also FIR can be lodged by any person(s) who is aware about the commission of any cognizable offence."

Background

The Petitioner, the Respondent no. 3 and his wife were engaged in a litigation with regard to piece of land that the petitioner claimed to have purchased in1996. The claim of Respondent No. 3 was that it had been purchased by his wife.

The said dispute was pending before the court of City Judge, Jammu and while its pendency the boundary wall of the property was allegedly damaged by the petitioner.

This prompted the respondent to approach the Chief Judicial Magistrate, Jammu for investigation of the matter and pursuant to whose direction, an FIR was registered and after the conclusion of the investigation, the challan for commission of offence under sections 448 and 427 RPC was filed against the petitioner.

Submissions

Advocate Ajay K. Gangotra, for the petitioner, argued that the respondent No. 3 had filed the criminal complaint only to harass the petitioner so as to grab his property since he could not get the property even by filing the civil suit. 

He further argued that the petitioner was not present on the date of occurrence on spot and he was at his office at J&K Bank Branch, Rangreth. It was added that the respondent No. 3 had no locus standi to lodge the FIR.

Senior Advocate LK Sharma, appearing for respondent No. 3 submitted that a plea of alibi could not be considered while adjudicating upon the petition under section 482 CrPC and that the mere pendency of the civil suit was not a bar with regard to the investigation in the event any offence was committed during the pendency of the said suit. 

The respondents claimed that the petitioner had submitted false grounds regarding his absence from the spot of occurrence as he had manipulated the attendance record being the Senior Officer of the Bank.

It was also stated that though a civil dispute could not be settled by criminal proceedings, it did not give license to the party to the civil proceedings to violate the law and forcibly commit trespass and cause damage to the property during the pendency of the civil litigation. 

Findings

The Court found no merit in the contention of the petitioner that a civil dispute had been converted into a criminal dispute as it was not that a single act that had given rise to both civil as well as criminal proceedings.

In this regard, the Bench relied on Mohd. Allauddin Khan v. State of Bihar, where the Apex Court has held as under:

"...mere pendency of a civil suit is not an answer to the question as to whether a case under Sections 323 and 379 read with Section 34 IPC is made out against Respondents 2 and 3 or not.
...when a specific grievance of the appellant in his complaint was that Respondents 2 and 3 have committed the offences punishable under Sections 323 and 379 read with Section 34 IPC, then the question to be examined is as to whether there are allegations of commission of these two offences in the complaint or not....."

The contention that the petitioner was not present on spot at the date of occurrence was also rejected.

"The petitioner can no doubt raise the plea of alibi but the same is required to be proved like any other fact and cannot be considered as a gospel truth and relied upon by this Court while adjudicating upon the petition under section 482 Cr.P.C.," it said.

Relying on Rajendra Singh v. State of U.P, the Court noted:

"..no finding on a plea of alibi can be recorded by the High Court for the first time in a petition under Section 482 CrPC. As mentioned above, the burden to prove the plea of alibi lay upon the accused which he could do by leading evidence in the trial and not by filing some affidavits or statements purported to have been recorded under Section 161 CrPC. The whole procedure adopted by the High Court is clearly illegal and cannot be sustained."

Justice Oswal also noted the contention that the respondent No. 3 had no locus standi to lodge the FIR was also misconceived. Otherwise also FIR can be lodged by any person(s) who is aware about the commission of any cognizable offence, he added.

In view of these observations, the petition was found to be devoid of any merit, and was dismissed. 

Case Title: Sheikh Nasser Ahmed v State of J&K and others

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