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2001 DIGILAW 875 (PAT)

Md. Mazher Husain v. State Of Bihar

2001-09-17

P.K.SINHA

body2001
Judgment P.K.Sinha, J. 1. This is an application under Section 482 of the Code of Criminal Procedure (hereinafter referred to as "the Code") preferred by petitioner Md. Mazher Hussain praying therein to quash order dated 30.11.1996 recorded by Sri A.K. Singh, Judicial Magistrate, 1st Class at Patna in Complaint Case No. 878(C) of 1996 whereby and whereunder the accused was summoned to face trial for offences under Sections 147, 148 and 379 of the Indian Penal Code. 2. The facts of the case, in brief, are that one Abdul Ahad filed the aforesaid complaint against the petitioner and three others alleging that the land in question, appertaining to Khata No. 1067, Plot No. 4116 was obtained by the mother of the complainant and his uncle in the year 1957 who have been paying rent of the same thereafter. The land in question continued in possession of the mother of the complainant on which the complainant grew vegetables and other grains. On the alleged date of occurrence vegetable and maize plants grown by the complainant-opposite Party No. 29 were standing over the land. The allegation is that on 30.6.1996 on receiving information that the petitioner and others were plucking the vegetables and harvesting the maize, he came to the place of occurrence and found them doing that act, when he tried to stop, the petitioner threatened him with revolver and other accused threatened him with bombs. Thereafter, they took away the vegetables and brought the same to the house of the petitioner where also the complainant objected to that but could not do anything. He also went to the Police Station and gave a written report. Ultimately he was abused by Thana people for instituting such a case, under influence of the petitioner who was at that time an As-sistant Sub-Inspector of Police. 3. The plea of the petitioner, as in the application and as coming out of the submissions, is that a proceeding under Section 145 of the Code at that time was pending in the Court of Executive Magistrate at Patna and the vegetables etc. on the land were grown by the petitioner who was in possession of the land, which land was settled by the Ex. Zamindar with the father of the petitioner for which a receipt (Annexure-2) was granted. on the land were grown by the petitioner who was in possession of the land, which land was settled by the Ex. Zamindar with the father of the petitioner for which a receipt (Annexure-2) was granted. Further case of the petitioner is that after vesting of the Zamindari with the State the land continued to be in possession of the father of the petitioner and the rent was also being paid by the petitioner. It is also a plea that other cases were also pending between the parties elsewhere as enumerated in the report of the Police in course of enquiry in connection with the proceeding under Section 144 of the Code, vide Annexure-4. 4. Learned counsel for the petitioner, submitted that proceeding under Section 144 of the Code was dropped on 23.10.1992. vide Annexure-5, but the possession of the complainant was never declared. It, however, appears that second party to the aforesaid proceeding, Mumtaz Hassan, brother of the complainant had filed an application against the report submitted by the police (Annexure-4) and had prayed for getting the matter investigated by some other authority of which prayer was rejected on 23.10.1992. 5. Learned counsel submitted the aforesaid proceeding was converted into a proceeding under Section 145 of the Code on 29.10.1992, vide Annexure-6. The argument was that obviously there was a bonafide dispute about the possession and ownership of the land. In this situation and, in view of settled law, it was argued, no criminal offence of the nature as alleged can be said to have been committed by the alleged offender, the ingredient of mens rea being absent. 6. In that regard much stress has been laid upon Annexure-4, the report of the Police in that proceeding under Section 144 of the Code between Dasarath Rai, said to be the man looking after the land on behalf of the petitioner, and Mumtaz Hassan aforesaid and others in which the Police reported that the villagers had said that the vegetables were grown by Dasarath Rai and Azim and that the land was coming in possession of the petitioner Mazher Hussain. Obvisously that report is quite in favour of the petitioner and against the complainant. 7. Obvisously that report is quite in favour of the petitioner and against the complainant. 7. However, learned counsel for Opposite Party No. 2, the complainant, pointed out counter affidavit filed on his behalf submitting that police report in such circumstance of the case could not be a deciding factor because from the beginning it was the allegation of the complainant side that the police was biased and siding with the petitioner, petitioner himself being a Police Officer, which aspect of the matter could not be over-looked. Learned counsel submitted that Annexure-A to the counter affidavit would show that mother of Opposite party No. 2 had been paying rent to the State of Bihar and insofar as the converting the proceeding one under Section 145 of the Code was concerned, second party to the proceeding Mumtaz Hassan had preferred Cr. Revision No. 33 of 1993 before the Court of Sessions Judge, at Patna which was decided by the Additional Sessions Judge, Third Court at Patna by order dated 28.8.1997, copy at Annexure-B to the counter-affidavit. Learned counsel submitted that in that order the learned Judge had noted that the counsel for Opposite Party Dasharath Rai had admitted on the Court that Dasharath Rai had died long back but had requested the Court that one Mazher Hussain had interest in the property, hence the proceeding could be continued. It has been pointed out by the learned counsel that in the circumstances of that case as well as considering the law in that regard the learned Additional Sessions Judge by the aforesaid order allowed the revision application, however observing that if any fresh apprehension of breach of peace came to the knowledge of the Executive authority, a fresh proceeding could be initiated. 8. Argument of the learned counsel was that the plea of bonafide dispute about ownership and the possession sought to be sustained over the land was taken on behalf of the petitioner mainly on the basis of the pendency of the aforesaid proceeding under Section 145 of the Code, but the very order initiating the proceeding under Section 145 of the Code by the learned Executive Magistrate having been held to be illegal and struck down in revision, would show that the order of the learned Executive Court was illegal and not operable even on the date on which the order was passed. To counter that, learned counsel for the petitioner submitted that the order in revision came later but obviously when the alleged occurrence took place, that proceeding was pending hence it had to be held that there was a bonafide dispute about the possession and ownership of the land and on this ground the criminal proceeding in the complaint should be quashed. Learned counsel for the Opposite Party No. 2 in that regard also has pointed out An-nexure-C a report of the Police for initiating a proceeding under Section 107 of the Code on the ground that the members of the first party, Mazher Hussain (Petitioner) and others were volatile and had gone to the land in question and had uprooted the vegetables which had aggravated the situation and that on any day either side could take law in their hands. However, this report is dated 12.12.1996, after the alleged occurrence. 9. In this regard learned counsel for the petitioner has relied upon a decision of the Apex Court in the case of S. Guln and others V/s. Grindlays Bank Ltd., AIR 1986 SC 289 : 1986 East Cr C 442 (SC), submitting that in that case which was under Section 341 of the Indian Penal Code and 36-AD of the Banking Regulation Act, 1949 the High Court had reversed the order of acquittal and remanded the case for fresh trial but the Apex Court held that in exercise of inherent powers under Section 482 of the Code, keeping in view minor nature of offence and time already taken upto decision of the High Court in that appeal, a fresh trial should not have been ordered, rather the proceeding should have been dropped. In that case the proceeding had remained pending in the High Court for six years, besides, much time was taken in course of the trial. In this case the date of occurrence was 30.6.1996 and the impugned order was recorded on 30.11.1996 in which the accused were summoned to face trial for offences, amongst others, also under Section 379 of the Indian Penal Code. Learned counsel for the petitioner has also relied upon another decision of the Apex Court in the case of Suvvari Sanyasi Apparao and another V/s. Boddepalli Lakshminarayan and another, AIR 1962 SC 586 , submitting that an existing bonafide claim of right could be a good defence to a prosecution for theft. Learned counsel for the petitioner has also relied upon another decision of the Apex Court in the case of Suvvari Sanyasi Apparao and another V/s. Boddepalli Lakshminarayan and another, AIR 1962 SC 586 , submitting that an existing bonafide claim of right could be a good defence to a prosecution for theft. From perusal of the decision it will appear that both side had dispute relating to a deal concerning a press and the Apex Court also had opportunity to peruse the materials that were brought on record in course of evidence. It has been observed in that case that it was settled law that where a bonafide claim of right existed, it could be a good defence to a prosecution for theft, as an act did not amount to theft unless there be not only no legal right but no appearance or colour of a legal right. Their Lordships also noted the principle enunciated in that regard in a decision reported in 2 East P.C.P. 659 in which it was observed that if there be in the prisoner any fair pretence of property or right, or if it be brought into doubt at all, the Court will direct an acquittal. It was observed that the law recognised was that a bonafide claim of right was a good defence to the charge of theft. 10. However, whether the claim of right to the property is bonafide or without substance, can in certain cases be evaluated only in course of trial and if in the course of trial it is established that such a bonafide claim exists, it can be considered to be a good defence against the charge of theft. 11. It was in that context that the learned counsel for Opposite Party No. 2 pointed out its counter-affidavit submitting that clear statement in the counter-affidavit was that admittedly the land in question was settled by the Ex. Zamindar in favour of Md. 11. It was in that context that the learned counsel for Opposite Party No. 2 pointed out its counter-affidavit submitting that clear statement in the counter-affidavit was that admittedly the land in question was settled by the Ex. Zamindar in favour of Md. Akhtar Hussain, father of the present petitioner, who came in possession of that and continued to make payment of rent, and Jamabandi was granted in his favour, but in the year 1957 there had been dispute between Akhtar Hussain and Abdul Ahad, uncle of the complainant with regard to the land including other lands and finally there had been a compromise between the parties in a proceeding under Section 145 of the Code after which Akhtar Hussain had transferred the said land which is subject- matter of this case, through two registered deeds, one in favour of the uncle of the complainant, Abdul Ahad and the other in favour of the mother of the complainant. Learned counsel submitted that this statement has not been denied by the petitioner side but it has only been claimed that the land was settled with the father of the petitioner who paid rent which fact has not been decided in the counter-affidavit. Learned counsel submits that the petitioner being a Police Officer had been able to take help of the Police for creating doubt about title and possession of the complainant. 12. Insofar as the instant case is concerned, learned counsel submitted that besides the allegation in the complaint petition which made out commission of theft and criminal intimidation, the complainant on solemn affirmation had supported that and in course of enquiry the complainant had produced four witnesses who had supported the occurrence as well the possession of the complainant. 13. It is true that a bonafide claim over the land in question is a good defence for charge of theft but the question is as to whether or not in the circumstances of the cases such as instant one at this stage this Court should interfere with the order of the learned Lower Court and quash the criminal proceeding on the ground of documents submitted in this case. Obviously, the documents relied upon by the petitioner were not before the learned Lower Court while considering as to whether or not processes should be issued against the accused persons. Obviously, the documents relied upon by the petitioner were not before the learned Lower Court while considering as to whether or not processes should be issued against the accused persons. That being so it will not be proper for this Court to go through those documents, in the circumstances of the case, to hold in favour of the petitioner. Those materials may be considered by the learned Lower Court if brought on the record to find out if the petitioner could have some claim over the land. Likewise, for complainant, only the complaint and materials brought on the record of the case alone could be considered. The documents of both the parties have been mentioned only by way of recording submissions of the contending parties. 14. A reference was made about pendency of a title suit between the parties in and annexed document, but no averment in that regard has been made in the petition, and no detail about the nature of suit, or issues involved therein are on the record. However, in this case, the claim of the complainant is that the property was in his possession over which he had grown vegetables and maize. A theft is committed if one, intending to take dishonestly any movable property out of the possession of any person without that persons consent, moves that property in order to such taking. A theft can be committed under certain circumstances even in connection with some property which belongs to the accused. Learned counsel for Opposite Party No. 2 has submitted that material is on record including the averments in the complaint and evidence brought in course of enquiry which primafacie prove the possession of the complainant. The proceeding under Section 145 of the Code having not reached its final stage in which possession of particular party could have been declared hence prima-facie ingredients of the offence of theft have been brought on the record. 15. The proceeding under Section 145 of the Code having not reached its final stage in which possession of particular party could have been declared hence prima-facie ingredients of the offence of theft have been brought on the record. 15. Learned counsel for Opposite Party No. 2 has also pointed out that the aforesaid proceeding under Section 144 of the Code which was converted into a proceeding under Section 145 of the Code was between Dasharath Rai and the brother of the complainant in which when the matter went to revision then, even after death of Dasharath Rai, for a considerable period, as noted in that order, no step was taken in that regard by the petitioner which shows how much he was concerned with the proceeding. 16. In the circumstances though it cannot be denied that claim over the land may be a good defence for the offence of theft but whether or not that claim has any substance can be ascertained, in a case of this nature, after evidence in that regard has been adduced in the Lower Court, as not in every case in which such a claim has been raised, the proceeding can be scuttled at the initial stage itself under inherent powers of this Court. Under circumstances discussed above, as obtaining in the case, this Court is of opinion that at the initial stage, the order of the learned Lower Court summoning the accused to face the trial should not be interfered with. The petitioner, however, would be free to made such submissions in course of trial, even at the time of framing of the charges in view of the evidence that might have come on the record by then. 17. This being so, this application fails and is dismissed. However, it is made clear that none of the observations recorded or findings arrived at by this Court in this order would be considered by the learned Lower Court in course of trial, or while considering the matter pf framing of the charges.