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1999 DIGILAW 825 (PAT)

Hari Ram Belwariyar v. State of Bihar

1999-08-26

S.K.KATRIAR

body1999
Order S.K. KATRIAR, J. This application under the inherent power of this court at the instance of the four accused petitioners is directed against the order of cognizance dated 4.3.1992, whereby the learned Chief Judicial Magistrate, Patna, has taken cognizance of the alleged offences under sections 452, 448, 142, 148, 322 and 504 of LP.C., and summoned the present petitioners along with opposite party no. 3(Nagendra Kumar Sinha) to stand their trial. 2. According to the allegations in the petition of complaint (Annexure-5), the complainant (opposite party no.2 herein), was a tenant in the Katras, known as numbers 6 and 7, belonging to petitioner no.1 herein. Opposite Party no.2 (the complainant), was sought to be evicted from the two Katras and the matter had ultimately traveled to the Supreme Court. According to the further allegations, on 2.3.1992, the petitioners along with opposite party no.3 had gone over to the Katras and started evicting opposite party no.2. The latter protested and had shown to them the judgment of the Supreme Court which they refused to follow. The accused persons had thrown away the material goods of opposite party no.2 lying within the Katras and had evicted him and also belaboured him. The same was registered as Complaint Case No.127(C92) (Etwari La vs. Hari Ram Belwariar & ors.), a copy of which is marked as Annexure-5 to the quashing petition. The learned Magistrate took cognizance of the a leged offences and passed the impugned order of cognizance. 3. While assailing the validity of the impugned order of cognizance, learned counsel for the petitioners submitted that the order suffers from non-application of the mind, in view of the allegations made in the petition of complaint and the reference made to the order of the Supreme Court. It was in the facts and circumstances of the case essential on the part of the learned C.J.M. to have conducted enquiry under section 202 to ascertain the directions in the judgment of the Supreme Court, and the mode and manner and the extent to which the same has been complied with. He further submits that the complaint petition itself describes opposite party no.3 as In-charge Nazir of the Civil Court, Patna, and, therefore, the learned C.J.M. ought to have taken care to find out as to under what circumstances, and with what authority, a Government servant had gone over to the premises in question. He further submits that the complaint petition itself describes opposite party no.3 as In-charge Nazir of the Civil Court, Patna, and, therefore, the learned C.J.M. ought to have taken care to find out as to under what circumstances, and with what authority, a Government servant had gone over to the premises in question. (3.1) Learned counsel for the petitioners has propounded the following chronology of events in an effort to establish that the prosecution in question is malicious, and the impugned order of cognizance is the product of non-application of the mind. 11.7.1980 : Eviction Suit No.80/88 at the instance of petitioner no. 1 against opposite party no.2 was decreed, and the latter was directed to vacate the two katras in question. 3.9.1990 : Civil Revision No. 1179/90 at the instance of opposite party no.2 herein, was dismissed by the High Court. 10.7.1991 : Civil Appeal No. 2664/91, challenging the aforesaid judgments dated 11.7.1990 and 3.9.1990, before the Supreme Court at the instance of opposite party no.2, was substantially modified to the effect that (i) opposite party no.2 will hand over possession of Katra No.6 on or before 31.8.1991, (ii) Opposite Party No.2 will continue to retain Katra No.7, (iii) A sum of Rs.37,400/-by way of arrears. of rent shall be paid by opposite party no.2 to petitioner no.1 within a period of three months from the date of the judgment, failing which the appeal with respect to Katra No.7 will stand dismissed, and (iv) Opposite party No.2 was required to pay a sum of Rs.600/- per month by way of rental of Katra No.7 henceforth. A copy of the judgment is Annexure-1 to the quashing petition. 4.9.1991 : Opposite Party No.2 filed a false affidavit in Execution Case No.88/90, to the effect that the directions in the aforesaid judgment of the Supreme Court had been complied with, and possession of Katra No.6 16.9.1991 : The petitioners filed a rejoinder to the said affidavit before the Execution Court that the direction of the judgment of the Supreme Court had not at all been carried out by opposite party no.2 herein, therefore, prayed for delivery of possession through the process of court. A copy of the same is Annexure-2 to the quashing petition. 11.10.1991 : Petitioner No.1 herein filed a second application reiterating his prayer made in the aforesaid application dated 16.9.1991 (Annexure-2). A copy of the same is Annexure-2 to the quashing petition. 11.10.1991 : Petitioner No.1 herein filed a second application reiterating his prayer made in the aforesaid application dated 16.9.1991 (Annexure-2). 26.2.1992 : After consideration of the entire matter, the Execution Court issued writ for delivery of possession. Endorsement on the same shows that delivery of possession took place on 2.3.1992. A photo copy of the writ for delivery of possession is marked as Annexure-3 to the quashing petition. 2.3.1992 : Opposite Party No. 3 herein submitted his report to the learned Execution Court that the writ for delivery of possession had been executed, and delivery of possession of the premises in question had been made over to petitioner no.1 on 2.3.92. A copy of the report of the Nazir (O.P. no. 3), is marked as Annexure-4 to the quashing petition. 4.3.1992 : The present complaint petition is marked as Annexure-5. 4. Learned counsel for the O.P. No.2 (Complainant) has submitted that the judgment of the Supreme Court is sought to be misinterpreted and therefore, it would be appropriate if the matter is allowed to be thrased during the course of the trial. 5. I have carefully considered the rival submissions. It is manifest from a bare perusal of the aforesaid chronology of events that opposite party no.2 had failed to carry out the directions of the Supreme Court vide Annexure-1. Therefore, the judgment of the trial court had become executable. Hence the writ for deliver of possession by the learned Execution Court vide Annexure-3, which was executed on 2.3.1992, and is manifest from the endorsement of petitioner no.1, two witnesses, as well as one K. Roy, Inspector of Police, Kadam Kuan Police Station to the effect that the delivery of possession had been peacefully carried out. This position is equally manifest from the report of opposite party no.3 (Annexure-4), being the Nazir of the Civil Court, who was entrusted by the learned Executive Court with the duty of delivery of possession on the strength of the writ for delivery of possession. In such circumstances, I have no hesitation in concluding that it is a malicious and false prosecution of the present petitioners, because they were the landlords and were successful in taking delivery of possession of the premises in question through the process of law. In such circumstances, I have no hesitation in concluding that it is a malicious and false prosecution of the present petitioners, because they were the landlords and were successful in taking delivery of possession of the premises in question through the process of law. It is equally manifest from the face of it that opposite party no.3 was at the relevant point of time functioning as the acting Nazir in the Civil Court of Patna, and was given the writ for delivery of possession by the learned Execution Court. This Court has no manner of doubt that opposite party no.3 had gone over the premises in question on the strength of a lawful order of the court, and had acted in discharge of his duties in effecting delivery of possession. I, therefore, conclude without hesitation that it is malicious and false prosecution meant to harass the petitioners and opposite party no.3. 6. Learned Counsel for the Petitioners is right in placing reliance on a judgment of the Supreme Court, reported in 1998 Cr. Law Journal (1) 1 (M/s Pepsi Foods Ltd. and another v. Special Judicial Magistrate and others), wherein it has been observed that summoning of an accused in a criminal case is a serious matter. Criminal Law cannot be set into motion as a matter of course. It is not that the complainant has to bring only two witnesses to support his allegations in the complaint to have the criminal law set into motion. The order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. He has to examine the nature of allegations made in the complaint and the evidence, both oral and documentary in support thereof and would that be sufficient for the complainant to succeed in bringing charge home to the accused. No doubt the Magistrate can discharge the accused at any stage of the trial if he considers the charge to be groundless, but that does not mean that the accused cannot approach the High Court under section 482 of the Code or Article 227 of the Constitution to have the proceeding quashed against him when the complaint does not make out any case against him and still he must undergo the agony of a criminal trial. (6.1) I have no doubt that in view of the nature of the allegations made in the petition of complaint, the learned Chief Judicial Magistrate failed to verify the facts stated therein for taking cognizance and summoning the accused persons. He ought to have taken care to verify the directions in the judgment of the Supreme Court, the extent to which the same had been complied with, and as to under what circumstances, and with what authority, opposite party no.3, being a public servant, had gone over to the premises in question for evicting opposite party no.2. The impugned order of cognizance undoubtedly suffers from non-application of the mind. 7. In the result, this quashing petition is allowed, and the impugned order of cognizance dated 4.3.1992, passed by the learned C.J.M, Patna, in Case No.127 (C92) Etwari Lal vrs. Hari Ram Belwariar & ors), is hereby set aside, and the entire prosecution in relation to all the accused persons is hereby quashed.