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2000 DIGILAW 180 (PAT)

Ramashish Choudhary v. State Of Bihar

2000-02-02

P.K.SINHA

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Judgment P.K.Sinha, J. 1. This is an application under section 482 of the Code of Criminal Procedure filed by Ramashish Choudhary and 7 others praying therein to quash the impugned order dated 29.1.1996 recorded by Shri B.P. Sinha, Judicial Magistrate, Gopalganj in Tr. No. 704 of 1996 as well the criminal prosecution arising out of the order, by which the learned Magistrate, after enquiry in the complaint filed by Shri Sushil Prasad and in view of the oral and documentary evidence adduced, found a prima-facie case having been made out under sections 465, 468, 471, 420 and 120B of the Indian Penal Code and ordered issuance of summonses against all the accused. 2. The case of the complainant Sushil Prasad, in nutshell, was that one Badri Narayan Lal had married firstly with Tilkachani Devi and secondly with Rosana Kunwar, but since those ladies remained barren, he contacted 3rd marriage with Lilawati Kunwar who gave birth to the petitioners Munni Devi and Saroj Devi. It was also alleged that Shri Badri Narayan Lal, since deceased, had mortgaged 2 bighas and 10 kathas of lands bearing Khata No. 74 and survey no. 1502, as well 2 bigha and 10 kathas of another land appertaining to same khata and Khesra, on 19.4.1963 after which the complainant came in possession thereof. After death of Badri Narayan Lal, his two widows, namely, Rosna Kunwar and Lilawati Kunwar sold the same land on 18.2.1972 to the complainant. 3. Subsequently, the complainant came to know that a sale deed was executed on 13.7.1994 by petitioners munni Devi and Saroj Devi in favour of other accused/petitioners which, as claimed by the complainant, was forged one on the basis of which the purchasers were trying to usurp the land. 4. In this connection it has been claimed in the petition for quashing that a police case was lodged under orders of the learned Chief Judicial Magistrate who had forwarded the complaint petition filed in that regard, which was recorded as Mirganj P.S. Case No. 44/95 (Annexure-1). 5. After investigation the police concluded that the prosecution case was false and fabricated and the case was lodged by the complainant with a motive to grab property from co-sharer MunniDevi and Saroj Devi, who were the rightful owners of the land in question. A prosecution under section 182/211 of the I.P.C. against the informant was recommended (Annexure-2). 5. After investigation the police concluded that the prosecution case was false and fabricated and the case was lodged by the complainant with a motive to grab property from co-sharer MunniDevi and Saroj Devi, who were the rightful owners of the land in question. A prosecution under section 182/211 of the I.P.C. against the informant was recommended (Annexure-2). The final report was accepted by the Chief Judicial Magistrate, Gopalganj on 21.11.1995 and the protest petition filed by the informant was treated as complaint petition in which enquiry was held and the impugned order was passed. 6. The learned counsel for the petitioners has argued that the facts, as made out in the complaint petition do not make out any criminal case, rather the allegations are of civil nature for which the complainant should have brought a suit in a proper civil court. 7. It was argued that, admittedly, Munni Devi and Saroj Devi had share in the property of their father which, after death of their father, could not have been disposed of even by their mother. 8. Learned counsel for Opposite party no. 2 as well learned counsel for the State were asked as to whether the elements of forgery or cheating were present in the allegations made in the complaint petition, but learned counsel for Opposite Party No.2, the complainant, could not answer this point nor could deny that Munni Devi and Saroj Devi had share in the property. However, learned counsel for the State admitted that the case was of civil nature and the questions raised in the complaint petition could not be decided in a criminal case, because, to hold that somehow Munni Devi and Saroj Devi and other accused, by the aforesaid sale deed, had cheated anyone including the complainant, the criminal court would have to hold that Munni Devi had no interest in the property, hence had executed the sale deed with the alleged malafide motive. 9. I also find that the allegations are of civil nature which could and should have been decided by a competent civil court. Though, generally the courts do not wish to interfere in the order of issuance of summonses to the accused in a complaint case, but such orders have to be interfered with if it appears that the prosecution would only be abuse of the process of the criminal Court. 10. Though, generally the courts do not wish to interfere in the order of issuance of summonses to the accused in a complaint case, but such orders have to be interfered with if it appears that the prosecution would only be abuse of the process of the criminal Court. 10. In view of the aforesaid, this application is allowed and the impugned order dated 29.1.1996 and prosecution in the related case are hereby quashed.