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2007 DIGILAW 557 (PAT)

Raijee Singh v. State Of Bihar

2007-03-19

SYED MD.MAHFOOZ ALAM

body2007
Judgment 1. Heard the parties. 2. This application has been filed for quashing the order dated 30.8.2004 passed by the learned Chief Judicial Magistrate, Madhepura, in G.R. No. 61/2004 arising out of Singheshwar PS. Case No. 7/2004 whereby he has been pleased to take cognizance under Sections 147, 148, 149 323, 504, 447, 448, 379 and 380 of the Indian Penal Code and Sec.27 of the Arms Act against the petitioner and others. 3. As per the submission of learned Advocate of the petitioner the dispute relates to Khesra No. 243/244 of Khata no. 307 and the petitioner is the bona fide purchaser of the disputed land and as the informant is falsely claiming the land, as such, the informant has lodged this false case which was not supported by the independent witnesses, namely, Santosh Kamat (para 57 of the case diary), Anant Mandal (Para 58 of the case diary), Safiuddin (para 59 of the case diary), Baiju Kumar Yaday (para 60 of the case diary) and Pramod Kumar Singh (Para 61 of the case diary). Learned Advocate submitted that the petitioner is a bona fide purchaser of the disputed land and he has purchased the said land through sale deed executed by Narmada Pd. Singh and Most. Kishori Devi on 25.8.2003 and, therefore, no criminal case of trespass can be initiated against the bona fide purchaser, who has got full right to enter upon his land. He submitted that the claim of the informant with regard to the disputed land is based on unregistered document and as per the decision reported in 1993(1) PLJR page 172 (Zeyarat @ Jeyarat Hussain & Ors. vs. Kamsmali Mian (since dead) & Ors.), there is established law that unregistered document can not create any right, title and interest, as such, the claim of the informant with regard to the said land is not tenable. Learned Advocate further submitted that the evidence available in the case diary establishes that on the alleged date of occurrence the petitioner was not present at the place of occurrence and this fact finds corroboration from the fact that at the time of occurrence the police arrived at the place of occurrence and arrested two persons, namely, Bipin Singh and Sajjan Singh but the petitioner was not arrested from the place of occurrence. This goes to show that the petitioner was falsely implicated by the informant. 4. This goes to show that the petitioner was falsely implicated by the informant. 4. Learned Advocate of the Opposite Party No. 2 has submitted that the petitioner has come under the provision of Sec. 482 Cr.P.C. and there is decision of the Apex Court that this court can interfere in the order of taking cognizance only in rarest of rare cases and only when the court comes to the conclusion that on plain reading of the complaint or F.I.R. no offence is made out. In support of his argument, learned Advocate of the O.R No. 2 has placed reliance upon the decision reported in (1996)8 SCC page 164 (State of Bihar vs. Rajendra Agrawalla). 5. From perusal of the counter affidavit filed on behalf of the O.R No. 2, it appears that Title Suit No. 143/2003 is pending between the parties since before the date of occurrence of this criminal case. The said Title Suit was filed by the informant Harish Chandra Khandelwal in which the present petitioner is defendant no. 4. From perusal of the relevant portion of the plaint it appears that the plaintiff Harish Chandra Khandelwal, who is the informant in this case, has filed the said title suit for declaration that the sale deed executed in favour of the defendants (including this petitioner) be declared as forged, fabricated, fraudulent without consideration and the defendants including this petitioner be restrained from dispossessing the plaintiff from the disputed land. 6. Admittedly, till today no adverse order was passed against the plaintiff of that case, namely, Harish Chandra Khandelwal by any competent court and, therefore, under law no party can be permitted to disturb the possession of the plaintiff over the disputed land by using force even if his title is defective. As per the admitted facts on the alleged date of occurrence Bipin Kumar Singh (defendant no. 3. of Title Suit No. 143/2003) alongwith Sajjan Singh were arrested from the place of occurrence which prima facie establishes that some occurrence had taken place on the alleged date of occurrence for taking forceful possession of the land. Thus, under the circumstances, it can not be held that the entire allegation is false and fabricated. 7. 3. of Title Suit No. 143/2003) alongwith Sajjan Singh were arrested from the place of occurrence which prima facie establishes that some occurrence had taken place on the alleged date of occurrence for taking forceful possession of the land. Thus, under the circumstances, it can not be held that the entire allegation is false and fabricated. 7. Under the circumstances, mentioned above, I am of the opinion that it is not a fit case in which this court can interfere with the order of taking cognizance against the petitioner passed by the learned Chief Judicial Magistrate. 8. In such view of the matter, I am of the opinion that this quashing application has got no merit and, accordingly, the same is hereby dismissed.