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2010 DIGILAW 1441 (PAT)

Ram Jatan Sharma v. State Of Bihar

2010-07-05

RAKESH KUMAR

body2010
JUDGEMENT Rakesh Kumar, J. 1. Nine petitioners, while invoking inherent jurisdiction of this Court under Section 482 of the Code of Criminal Procedure, have prayed for quashing of entire criminal prosecution initiated against them on the basis of Complaint Case No. 663(c) of 1999/Tr. No. 971 of 1999 and for quashing of the order dated 5.1.2000 passed by Shri G.P.Singh, Judicial Magistrate, 1st Class, Danapur. By the said order, the learned Magistrate has taken cognizance of the offence under Sections 406, 420, 467, 471, 429, 427 of the Indian Penal Code. 2. Short fact of the case is that opposite party No. 2 filed a complaint petition vide Complaint Case No. 663(c) of 1999 disclosing therein that the petitioners had sprinkled poison on the grass around their house with a view that cattle of the villagers may die after consuming the same. It was further alleged that the petitioners, by way of fabricated document, had un-authori- zedly occupied possession over the land appertaining to khata No. 79, plot No. 421 measuring an area of 18 decimals and khata No. 39, plot No. 411 measuring an area of 18 decimals. The complainant had also disclosed in the complaint petition that over the land in question i.e. gairmazrua land, on the basis of donation given by the villagers, a college building was got constructed. However, subsequently, the petitioners got the name of the said college removed and occupied possession over the said plot. The complainant in complaint petition had stated that since the accused persons by way of forged document had occupied possession over the land in question, a public petition was also filed before the Circle Officer in which notices were issued to the accused persons. It was specifically stated at page-6 of the complaint petition that in the case, initiated on public petition, till the date of filing of the complaint petition, no decision had arrived. After filing of the complaint petition, the complainant was examined and some witnesses were also examined as enquiry witnesses and thereafter, the learned Magistrate, by order dated 5.1.2000, passed the impugned order of cognizance. 3. Mr. Sunil Kumar Pathak, learned counsel appearing on behalf of the petitioners, submits that on perusal of the complaint petition, it is evident that only on the basis of conjecture and surmises allegation was levelled and the learned Magistrate, in a mechanical manner, has passed the impugned order. 3. Mr. Sunil Kumar Pathak, learned counsel appearing on behalf of the petitioners, submits that on perusal of the complaint petition, it is evident that only on the basis of conjecture and surmises allegation was levelled and the learned Magistrate, in a mechanical manner, has passed the impugned order. It was further submitted that the complainant had made complete incorrect and false statement in the complaint petition that no decision had arrived in the encroachment case. On the basis of complaint petition, while referring to paragraph-13 of the petition, learned counsel for the petitioners submits that on the basis of frivolous petition filed by the complainant, the learned Circle Officer had started Misc. Case being Encroachment Case No. 1 of 1999-2000 in which notices were issued to the petitioners grand father and they appeared and filed show-cause and the learned Circle Officer, after hearing the parties and perusing the documents, rejected the claim of the complainant and others vide his order dated 3.10.1999. Learned counsel for the petitioners, during course of hearing of the present petition, has produced photo copy of the order passed by the Circle Officer in Encroachment Case No. 1 of 1999-2000. Let it be kept on record. On perusal of the order, it also appears that the learned Circle Officer had accepted petitioners possession over the land in question and he has also recorded that the said land cannot be considered as public land for proceeding with the encroachment case. Accordingly, it has been prayed that the entire proceeding including order of cognizance dated 5.1.2000 passed in Complaint Case No. 663-C of 1999 may be set aside. 4. I have also heard Mr. Amarendra Perasad, learned Additional Public Prosecutor, for the State. He has opposed the prayer of the petitioners. 5. Besides hearing learned counsel for the parties, I have perused the materials available on the record including photo copy of the order dated 3.10.1999 passed in Encroachment Case No. 1 of 1999-2000. The Court is satisfied that the complaint petition was filed by the complainant only with a view to harass the petitioners. Even though encroachement case was rejected on 3.10.1999, the complainant in the complaint petition made incorrect statement that no final decision in the case had arrived. Admittedly, the complaint petition was filed on 14.12.1999. The Court is satisfied that the complaint petition was filed by the complainant only with a view to harass the petitioners. Even though encroachement case was rejected on 3.10.1999, the complainant in the complaint petition made incorrect statement that no final decision in the case had arrived. Admittedly, the complaint petition was filed on 14.12.1999. So far as allegation of sprinkling poison on the grass is concerned, the said allegation appears to be not believable. In the complaint petition also there is no specific assertion regarding forged document. However, suspicion has been raised by the complainant. 6. In view of facts and circumstances, as indicated above, as well as on the basis of materials available on the record, this Court is satisfied that allowing the prosecution on the basis of Complaint Petition i.e. Complaint Case No. 663-C of 1999 will amount abuse of process of the Court. Of course, this Court is conscious that order of cognizance is ordinarily not required to be interfered, while exercising power under Section 482 of the Code of Criminal Procedure. However, in view of peculiar fact of the present case, the Court is satisfied that allowing the prosecution on the basis of such a complaint will amount to allowing abuse of process of the Court and with a view to prevent abuse of process of the Court, it is necessary to quash the entire prosecution as well as order of cognizance dated 5.1.2000 passed in Complaint Case No. 663-C of 1999. 7. Accordingly, entire criminal proceeding and the order of cognizance dated 5.1.2000 passed in Complaint No. 663-C of 1999 are hereby set aside and the petition stands allowed.