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2004 DIGILAW 996 (PAT)

Chhattu Lal Sah v. State Of Bihar

2004-09-20

AFTAB ALAM

body2004
Judgment 1. Mr. Mishra is present on behalf of the petitioners. No one appears on behalf of opp. party no. 2 despite order, dated 18.9.2004. The court finds the conduct of Mr. Raghuvendra Kumar Singh, counsel who filed Vakalatnama on behalf of opp. party no. 2 highly regretable. When the case was called out on 17.9.2004 he made a statement that was not wholly correct, causing much embarassment to the counsel for the petitioner and forcing him to make a prayer for withdrawal of the case. When the court dismissed the case as withdrawn, Mr. Singh went away. 2. A little while later, Mr. Mishra pointed out that the statement made by him on the basis of which he (Mr. Mishra) was compelled to make the prayer for withdrawal was not correct. Since by that time Mr. Raghuvendra Kumar Singh was not available, the court recalled the order dismissing the case (which by that time had not been recorded in the order sheet much less signed by the court) and directed for the case to appear on the list for the next day. 3. On 18.9.2004 when the case was called out, Mr. Singh was not present and on that date the court recorded an order stating what had happened on the previous day but having regard to the absence of Mr. Singh the case was once again directed to be passed over for the day with a clear direction that in case counsel for the other side failed to appear on the following day, the court would proceed to dispose of the case ex~parte. 4. As noted, Mr. Singh continues to remain absent. Under the circumstances the court proceeds to hear Mr. Mishra and to dispose of the case ex parte. 5. The petitioners seek quashing of the order, dated 22.7.2003 by which a Magistrate of the 2nd Class, Katihar took cognizance of offences under sections 147, 323, 442, 447, 504, 379 and 384 of the Penal Code and summoned the accused petitioners for facing trial. The cognizance order was passed on the basis of a complaint filed by complainant opp. party no. 2 on 12.5.2003, after holding an enquiry under section 202 Cr. P.C. Before proceeding further it may be noted that earlier on 9.5.2003 petitioner no. The cognizance order was passed on the basis of a complaint filed by complainant opp. party no. 2 on 12.5.2003, after holding an enquiry under section 202 Cr. P.C. Before proceeding further it may be noted that earlier on 9.5.2003 petitioner no. 1 had filed an F.I.R. (giving rise to Barari PS Case No. 63 of 2003 under different sections at the Penal Code) naming the father of the complainant as accused. In the complaint filed after three days of the institution of the F.i.R. there is reference to the same occurrence that took place on 9.5.2003 as per the F.I.R. 6. From a perusal of the complaint it becomes evident that the matter relates to a land dispute. The complainant (more accurately, his father Sadhu Saran Sah) claimed Bataidari rights over two plots of land admittedly owned by the petitioners. In the complaint it is alleged that the accused petitioners, being the owners of the land wanted to forcibly dispossess the complainants father and when the complainant and his people went to the land for ploughing it, the petitioners resisted their action, assaulted them and committed several allied offences. It may be noted that according to the complaint the dispute specifically relates to pieces of lands bearing plot nos. 1048 and 1047 under khata nos. 760(P) and 643(P) respectively, measuring to an area of 82 decimals. 7. Mr. Mishra, counsel for the petitioners submitted that the case of the complainant opp. party was palpably false as would appear from the materials on record. He submitted that claiming Bataidari rights in respect of the aforesaid two plots the father of the complainant had filed a petition before the D.C.LR, Katihar under section 48E of the Bihar Tenancy Act. The petition under section 48E of the Act was tiled on 12.5.2003, that is, the same day on which the criminal complaint was filed. 8. The D.C.L.R. found the claim of Bataidari raised by the complainants father as quite frivolous and rejected the petition at the threshold even without constituting a conciliation board. Against the order rejecting the petition, passed by the D.C.L.R. the complainants father came to this court in CWJC No. 8486 of 2003. 8. The D.C.L.R. found the claim of Bataidari raised by the complainants father as quite frivolous and rejected the petition at the threshold even without constituting a conciliation board. Against the order rejecting the petition, passed by the D.C.L.R. the complainants father came to this court in CWJC No. 8486 of 2003. That-writ petition was dismissed by order, dated 14.10.2003, recording the following finding: "I agree with the observations in the impugned order that the application under section 48E is actuated by mala fides and, therefore, the learned L.R.D.C. has rightly rejected his application at the threshold." (emphasis added) 9. The complainants father then took the matter in appeal in LP.A. No. 1115 of 2003. The appeal too was dismissed by a bench of this court by order, dated 14.11.2003. The appeal bench re-affirmed the finding that the claim of the complainants father was not bona fide and rejected the appeal holding as follows: "The learned single judge rightly held that the dispute raised by the appellant was not bonfide one and the authority rightly, if we may say so, held that no case of the appellant under section 48E is made out." 10. That being the position the complaint looses its very basis and the allegations made therein appear to be groundless, false and incorrect. It, therefore, becomes clear that the complaint arose from non-existent facts and the cognizance order passed on its basis was quite misconceived, bad and illegal. Any further continuance of the proceeding resulting, from the cognizance order would amount to an abuse of the process of the court. 11. The order taking cognizance as well as the pending proceedings in the court below are accordingly quashed. This petition is allowed.