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2008 DIGILAW 987 (PAT)

Bacha Singh v. State Of Bihar

2008-07-18

ABHIJIT SINHA

body2008
Judgment 1. This application under Section 482 Cr.P.C. by the sole accused against whom cognizance has been taken in Complaint Case No. CA 505/2006, by Sri R.S. Tiwary, the learned Chief Judicial Magistrate, Katihar, by order dated 11.4.2007, is for the quashing of the said order on the ground that the nature of issue raised therein happens to be absolutely civil and can be thrashed in a civil proceeding. 2. It is unfortunate that notwithstanding the Hon ble Apex Court as also this Court repeatedly and times without number deprecating and discouraging efforts of litigants to settle civil disputes and claims, which do not involve any criminal offence, by applying pressure through criminal prosecution, litigants still continue to resort to the same and the Subordinate Courts entertaining them unabated. 3. The factual matrix may be noticed briefly. The complainant, one Sanjay Singh @ Pintu Singh, son of Onkar Nath Singh, impleaded herein as O.P. No. 2, preferred the aforesaid complaint against the petitioner and his father on 18.3.2006, inter alia stating that his family has been residing in a house constructed over a part of plot no. 1684, khata no. 417 in Mauza Mirchaibari, since the past 50-60 years and that whereas the land in question was recorded in C.S. Khatian as Gair Mazarua land, in the R.S. Khatian it is recorded in the name of Manti Devi, the daughter of Fekhan Sah, who allegedly as representative of the landowner was receiving land rent since long from the complainant and his ancestors and later having received full consideration amount for the said land had promised to execute a registered sale deed in favour of the complainant. It is alleged that in February, 1992 the petitioner herein having come to know about the real owner of the land, representing himself as the son of Kewal Singh, by caste a Rajput, filed Eviction Title Suit in the Civil Courts at Katihar against the father of the complainant and the father of the complainant alongwith Manti Singh, allegedly the real owner of the land in question, filed Title Suit No. 108 of 2002 wherein the petitioner herein appeared and in the written statement filed by him claimed himself to be the son of Ulfat Singh, by caste a Swarnakar. 4. It is also alleged that accused no. 4. It is also alleged that accused no. 1 is a cheat and fraud and he in the year 1985 cheated complainants witness, Charu Sharma, by executing a registered sale deed wherein the petitioner herein was shown as son of late Kumar Singh, by caste a Rajput, and even prior thereto, in the year 1975, after receiving a sum of Rs. 3,000/- from Usha Singh, the aunt of the complainant, a sale deed was executed in respect of 41/4 kathas of land appertaining to khata no. 158, khesra no. 1684 wherein the petitioner claimed himself as the son of Kewal Singh, by caste a Rajput. It is also alleged that accused no. 1 in execution of a criminal conspiracy filed Title Suit No. 109 of 2002 wherein the petitioner was described as the son of Ulfat Singh, by caste a Swarnakar. The further allegation is that on 3.3.2006 in course of hearing the petitioner was confronted by the Judge regarding his correct parentage and caste and after court hours accused no. 1 threatened and abused the complainant and his father and in the evening the petitioner threatened the complainant at the point of his gun with death. It is also alleged that both the accused run a jewellery shop wherefrom they indulge in cheating innocent people. It is said that on 17.3.2006, the accused persons with the help of 2-3 unknown criminals had planned of dire consequences for the complainant and when the people of the locality were informed the accused abused and threatened him. 5. It has been submitted on behalf of the petitioners that it would be apparent from a bare perusal of the complaint and the impugned order that there has been a complete non-application of mind by the learned cognizance taking Magistrate which would be reflected from the fact that although more serious allegations were attributed against accused no. 1, Om Prakash Singh, he being the executant of the deeds in question, and the other allegations were more or less similar to those against the petitioner, yet accused Om Prakash was spared and cognizance was taken only against the petitioner herein for reasons best known to the learned Magistrate. 1, Om Prakash Singh, he being the executant of the deeds in question, and the other allegations were more or less similar to those against the petitioner, yet accused Om Prakash was spared and cognizance was taken only against the petitioner herein for reasons best known to the learned Magistrate. It was further submitted that none of the ingredients of the offences whereunder cognizance has been taken, were made out from the recital in the complaint and the evidence adduced by the complainant at the enquiry under Section 202 Cr.P.C. Even otherwise, it was submitted, that from a bare perusal of the materials available on the record, at best there could be a civil dispute for which two suits, as disclosed in the complaint petition itself, are pending between the parties and in the facts and circumstances the criminal prosecution of the petitioner was neither warranted nor sustainable being an abuse of the process of the Court. 6. With the learned counsel for O.P. No. 2 unable to satisfy or impress in his defence and justification of the impugned order I am more than satisfied that there is sufficient force in the submissions advanced by the learned counsel for the petitioner. I am of the opinion that even taking the prosecution case to be true on its face value, as it transpires from the complaint petition, no offence whatsoever whereunder cognizance has been taken appears to have been made out against the petitioner since the very ingredients making out the offences are conspicuous by their absence and the continuance of the instant prosecution would amount to an abuse of the process of the Court. To my mind the issues involved are civil in nature and ought to be thrashed out or settled in a civil proceeding for which two suits are pending. 7. One may gainfully recall to mind the observations of the Hon ble Apex Court G. Sagar Suri vs. State of U.P. reported in (2000)2 SCC 636 wherein it was observed: "It is to be seen if a matter, which is essentially of a civil nature, has been given a cloak of criminal offence. Criminal proceedings are not a short cut of other remedies available in law. Before issuing process a criminal court has to exercise a great deal of caution. For the accused it is a serious matter." 8. Criminal proceedings are not a short cut of other remedies available in law. Before issuing process a criminal court has to exercise a great deal of caution. For the accused it is a serious matter." 8. I am unable to understand as to what prevailed with the learned cognizance taking Magistrate to spare co-accused Om Prakash Singh regard being had to the gravity and similarity of allegations. 9. Be that as it may, regard being had to the discussions in the foregoing paragraphs and the nature of the disputes involved being civil, the continuance of the criminal proceeding against the petitioner herein would be an absolute abuse of the process of the Court and has to be quashed in its entirety. The application is accordingly allowed. 10. Before parting I would only like to once again reiterate the anxiety expressed by the Apex Court as also this Court towards the growing tendency amongst litigants to convert purely civil disputes into criminal cases since civil law remedies are admittedly time consuming and an impression is created that if a person could somehow be entangled in a criminal prosecution, there was a likelihood of imminent settlement. Reference in this connection may be made to the discussion of Indian Oil Corporation vs. NTPC India Ltd. reported in (2006)6 SCC 736 .