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2004 DIGILAW 1058 (JHR)

Madho Mahto v. State Of Jharkhand

2004-11-02

HARI SHANKAR PRASAD

body2004
ORDER Hari Shankar Prasad, J. 1. This application under Section 482 of the Code of Criminal Procedure has been filed for quashing the order dated 20.6.2003 passed in Complaint Case No. 81/2003, whereby and where-under the learned Judicial Magistrate, Chatra has taken cognizance against the petitioner under Sections 420, 467 and 120B, IPC. 2. The facts giving rise to the filing of this application are that complainant-opposite party No. 2 filed a complaint case being complaint Case No. 81/2003 stating therein that he has been in physical possession over the land since the date of purchase bearing Khata No. 1 Plot No. 298, area 0.23 decimal as well as of Plot No. 296 area 0.11 decimal and he has been paying rent since then. It is further alleged that neither Madho Mahto and Balch and Mahto have got possession over the land in question nor they have got right, title to sell the same but in a criminal conspiracy petitioner Madho Mahto and Balchand Mahto sold the land in favour of petitioners Amit Kumar Singh and Binit Kumar Singh and petitioner Jugal Mahto identified them in order to grab the land as well as for the purpose to dispossess the complainant. 3. On the basis of complaint petition, an enquiry was held and after examination of some witnesses, cognizance has been taken against the petitioners under the aforesaid sections. 4. Learned counsel appearing for the petitioners, submitted that this is out and out a case of civil nature and no case under any of the aforesaid sections of IPC has been made out. It is further submitted that from perusal of complaint petition, it appears that no case under Sections 402, 467, 468 and 120B, IPC is made out and the learned Judicial Magistrate, without application of mind, acted in the case and held petitioners guilty. The learned Judicial Magistrate has got no power within his competent jurisdiction to decide right title and interest of the complainant or of the accused-petitioners over the land. Further the sale deed in question has not been filed in the Court and if the complaint case is allowed to continue then it will be an abuse of the process of Court. 5. Further the sale deed in question has not been filed in the Court and if the complaint case is allowed to continue then it will be an abuse of the process of Court. 5. On the other hand, learned counsel for the opposite party No. 2 submitted that cognizance in the case has been taken after due enquiry under Section 202, Cr PC and the cognizance order does not require any interference. It was further pointed out that if case appears to be of civil nature even then if there is criminal intent in the allegation, criminal proceeding cannot be thwarted merely because civil proceedings are maintainable. In this connection reliance was placed upon 2001 (2) JLJR 72 . Reliance was also placed upon 2001 (2) JLJR 64 , wherein it has been held that it is not within the province of the Magistrate to enter into a detailed discussion of the merits/demerits of the case and it is limited only to ascertainment of falsehood of the allegation made in the complaint on the material placed by the complainant before the Court for the limited purpose of finding out whether a prima case for issuance of processes has been made out or not and for deciding question particularly from the point of view of the complainant without at all adverting to any defence that the accused should not go scot-free if there is sufficient evidence against him and, therefore, learned counsel prays that the quashing application be dismissed. 6. 6. From perusal of complaint petition, it appears that the allegation, as made in the complaint petition, relates to deciding the fact whether the complainant is the rightful owners of the land in question or petitioners, who have been made accused in the complaint Case No. 81/2000, are the rightful owner of the land in dispute and whether Mahto and Balchand Mahto rightly executed the sale deed in favour of other petitioners or not and this is a fact or matter, which can be decided by a civil Court of competent jurisdiction and not by a criminal Court, because it has not been seen whether any forgery has been committed or not but it has to be seen that who are the rightful owners of the land in question and further that so called sale deed has not been brought on record to show that any such sale deed has been executed and, therefore, it is out and out a case of civil nature, in which right, title and interest of the parties are involved and this can be decided by a civil Court of competent jurisdiction only. 7. In that view of the matter, this quashing application is allowed and order taking cognizance dated 20.6.2003 is hereby quashed.