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2008 DIGILAW 655 (PAT)

Chandrika Tiwary v. State Of Bihar

2008-04-30

ABHIJIT SINHA

body2008
Judgment 1. The two petitioners who alongwith two others have been made to figure as accused in Jogapatti P.S. Case No. 9 of 2004 have through this application prayed for the quashing of the order dated 1.12.2006 passed therein by the learned Chief Judicial Magistrate, West Champaran at Bettiah, whereby and whereunder he has taken cognizance of offences under Sections 143, 144, 149, 323, 379, 488, 384, 104 and 109 I.P.C. 2. One Banhu Mian, impleaded herein as O.P. No. 2, submitted a written report before the police on 18.1.2004 inter alia stating that he was the owner of a piece of land measuring 18 kathas 8 dhurs appertaining to plot nos. 48 and 52 which had devolved upon him from his ancestors which he had sold to Vidya Yadav for Rs. 25,000/- and which had been returned to him at the behest of notorious criminal Birbhan Yadav and thereafter the same remained in his possession. It is alleged that on 15.1.2004 the petitioners alongwith a few others came to his village, forcibly captured a tractor from the neighbourhood and forcibly cultivated his aforesaid lands. Accordingly, a prayer was made to take appropriate action against the accused persons. 3. It has been submitted on behalf of the petitioners that the disputed plots were admittedly recorded in khata no. 34 of village Fatehpur which was a joint khata of Madan Gopal Pandey and his brothers Ganga Pandey, Mathura Pandey and Sanjay Pandey and plot nos. 48 and 52 were recorded in their joint possession but inadvertently the name of one Asharaf Jolha was shown as the mortgagee in Sikmi khata no. 4. However, after the revisional survey the mortgage of Asharaf Jolha was redeemed and since then the aforesaid raiyats have been coming in possession over the said lands. A private partition took place between the brothers whereby the disputed lands were allotted to the share of Ram Pujan Pandey, the son of Mathura Pandey. This was followed by Partition Suit No. 78 of 1959 preferred by the wife of Madan Gopal Pandey with Ram Pujan figuring as defendant no. 2 and the same was decreed on compromise whereby plot nos. 48 and 52 were allotted to the share of Ram Pujan Pandey. It is said that Ram Pujan died issueless and his sole heir was Chandrika Tiwary (petitioner no. 2 and the same was decreed on compromise whereby plot nos. 48 and 52 were allotted to the share of Ram Pujan Pandey. It is said that Ram Pujan died issueless and his sole heir was Chandrika Tiwary (petitioner no. 1) the son of his sister (Bhagina) and he came in exclusive possession thereof and his name was mutated and he paid rent to the State. 4. It has further been submitted that the informant-O.P. No. 2 is a naxalite and he and his colleagues are always on the look out to grab the lands of others and accordingly taking advantage of the wrong entry of the name of Asharaf Jolha, he filed B.T. Act Case No. 7 of 2004-05 claiming to be a bataidar of petitioner no. 1 since before the revisional survey but the same was dismissed on a finding that the claim of bataidari was frivolous. Not satisfied therewith, O.P. No. 2 next filed Title Suit No. 249 of 2004 seeking declaration of title over the disputed lands on a claim of being a settled raiyat having given up his initial claim of being a bataidar. The suit was dismissed on 27.7.2006 as being not maintainable. Title Appeal No. 16 of 2006 was filed and is pending. 5. It has also been submitted that prior to the filing of the suit he lodged the instant written report introducing the sale to Vidya Yadav and the subsequent return thereof at the behest of criminal Birbhan Yadav and his possession over the same. Thereafter, in collusion with S.I. Manwendra Kumar, the Investigating Officer, who fabricated the case diary to suit the informant implicated the petitioners falsely. Improbabilities and discrepancies were sought to be pointed out by the learned counsel for the petitioners in the case diary. He also sought to submit that the Investigating Officer had come to the house of the petitioners and apart from abusing and threatening them had also ordered them not to cultivate the lands and on protest they were assaulted for which Complaint Case No. 616(C) of 2004 was filed against the said Investigating Officer wherein cognizance was taken on 29.9.2004. The Criminal Revision No. 276 of 2004 filed against the order taking cognizance was dismissed on 29.10.2004 as not maintainable. The trial in the said complaint case is going on and several witnesses have been examined. 6. The Criminal Revision No. 276 of 2004 filed against the order taking cognizance was dismissed on 29.10.2004 as not maintainable. The trial in the said complaint case is going on and several witnesses have been examined. 6. It has been submitted that in the instant case the petitioners had filed a petition for rejecting the charge-sheet as being mala fide on various grounds but the same was rejected and cognizance was taken. 7. It has also been submitted that the matter of the title and possession is now sub-judice before the Civil Court and thus there was no element of criminality nor had any offence been made out. 8. The learned counsel for O.P. No. 2 on the other hand sought to point out that the learned Magistrate was fully justified in rejecting the petition filed by the petitioners for rejecting the charge-sheet as the accused had no right to be heard at the time of cognizance. He also sought to submit that the learned Magistrate was fully justified in taking cognizance as there was sufficient materials in the case diary and forcible cultivation of ones lands was an independent offence by itself irrespective of the fact that the matter of title and possession was sub-judice. 9. So far as the rejection of the petition of the petitioners for rejecting the charge-sheet is concerned, I am of the opinion that the learned Magistrate was fully justified in rejecting the same as at the point of taking cognizance the accused have no right to hearing. 10. So far as the merit of the case is concerned, it is well settled by now that it is neither feasible nor practicable to lay down exhaustively the areas of jurisdiction of the High Court under Section 482 Cr.P.C. but the examples can be found where broad outlines have been laid down. 10. So far as the merit of the case is concerned, it is well settled by now that it is neither feasible nor practicable to lay down exhaustively the areas of jurisdiction of the High Court under Section 482 Cr.P.C. but the examples can be found where broad outlines have been laid down. Ordinarily a defence of an accused, although appears to be plausible, should not be taken into consideration for exercise of the said jurisdiction and the High Court at this stage would not ordinarily enter into a disputed question of fact but that by itself does not mean that documents of unimpeachable character should not be taken into consideration at any cost for the purpose of finding out as to whether continuance of the criminal proceedings would amount to an abuse of the process of the court or that the complaint petition/written report is filed for causing mere harassment to the accused. The Apex Court as also this Court have times without number deprecated the present day tendency of filing criminal cases to achieve the ultimate goal in disputes which are meant to be determined only by the Civil Courts and a veiled warning has been given to the courts not to encourage such a practice. 11. In the instant case, the informant-O.P. No. 2 does not appear to have submitted the written report with clean hands. He has fully suppressed the material facts of having lost the Bataidari case as also the Title Suit seeking declaration of title over the disputed land. The SubInspector who figured as the Investigating Officer of this case also appears to have colluded with O.P. No. 2 and the Complaint Case No. 616(C) of 2004 appears to be a pointer on this issue. 12. From the above, it appears that the instant criminal proceeding, if permitted, to continue would be an absolute abuse of the process of the court since the main dispute in issue is the right, title, interest and possession over the disputed land and as it appears from the copies of the judgment and orders of the courts appended with the application the scale tilts in favour of the petitioners and the instant criminal case appears to have been filed only to harass the petitioners. 13. 13. Due regard being had to the facts and the circumstances of the case, continuance of the criminal proceeding, so far as the petitioners are concerned, would be an abuse of the process of the court. 14. Accordingly, the order taking cognizance, so far as the petitioners are concerned is hereby quashed, the application is allowed.