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2010 DIGILAW 2181 (PAT)

Jagdish Purbey v. State Of Bihar

2010-09-17

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 i quashing of an order dated 15.2.2002 passed by the Chief Judicial Magistrate, Araria in Complaint Case No.291-C of 2001. By the said order, the learned Magistrate has taken cognizance of offence under Sections 467, 468, 420, 484 and 120-B of the Indian Penal Code. The petitioners have further prayed for quashing of an order dated 7.6.2003 passed by the learned Sessions Judge, Purnea in Cr. Revision No.119 of 2002. By the said order, the learned Sessions Judge has rejected the revision preferred by petitioners against the order of cognizance. 2. Short fact of the case is that initially opposite party No. 2 filed a complaint in the Court of Chief Judicial Magistrate, Araria, which was numbered as Complaint Case No. 1377-C of 2000. The said complaint was filed on 21.7.2000. The said complaint was subsequently referred to the police for its registration and investigation under Section 156(3) of the Code of Criminal Procedure and thereafter, an FIR vide Raniganj P.S.Case No. 178 of 2000 was registered on 29.7.2000. However, after investigating the case, police found that in relation to the said land, a suit was also pending and as such the police submitted final report. After submission of final report, the opposite party No. 2 filed a protest petition, which was treated as complaint case vide Complaint Case No.291(C) of 2001. In the Complaint Case No. 291(C) of 2001,. after conducting enquiry, the learned Magistrate, by the impugned order, took cognizance of offences as mentioned above. Against the order of cognizance, the petitioners filed revision, which was rejected on 7.6.2003. 3. Aggrieved with the order of cognizance as well as order of rejection of revision petition, the petitioners approached this Court by tiling the present petition, which was admitted oh 18.11.2005. 4. While admitting, this Court directed that during the pendency of this application, further proceeding in Complaint Case No.291 of 2001, so far as petitioners are concerned, pending in the Court of Chief Judicial Magistrate, Araria shall remain stayed. The order of stay is still continuing. 5. 4. While admitting, this Court directed that during the pendency of this application, further proceeding in Complaint Case No.291 of 2001, so far as petitioners are concerned, pending in the Court of Chief Judicial Magistrate, Araria shall remain stayed. The order of stay is still continuing. 5. Shri Bidhanish Mishra, learned counsel appearing on behalf of the petitioners, while challenging both the orders, has Justly argued that on the basis of averment made in entire complaint petition, no offence under Section 384 of the Indian Penal Code is made out. 6. I have perused the averment made in the complaint petition. It appears that the submission made by the learned counsel for the petitioners up to this extent is correct. It was further submitted by learned counsel for the petitioners that the allegation made in the complaint petition was completely in relation to a dispute of civil nature. It has been argued that this fact was corroborated during investigation, which was conducted by the police and only thereafter, police had submitted final report on 17.10.2000. It has been argued that the complainant had entered into an agreement with petitioners for sale of land mentioned in the complaint petition. It was agreed to sell the land on a consideration money of Rs.50,000/-. The agreement to sell was executed in the year 1996 and Rs.500/- was paid to the complainant by the petitioners as advance money. As per agreement, it was prescribed that by the end of December, 1999, the complainant will execute final sale-deed. Since the complainant did not execute final sale date, despite vigorous persuasion by petitioners, the petitioner No. 6 left with no option filed a suit vide Title Suit No. 11 of 2000 mainly with a prayer to direct the complainant to execute the sale-deed after taking final consideration money. In case of refusal, it was prayed that the petitioner No. 6 may be allowed to deposit consideration amount in the Court. It was submitted that only after filing of the suit by petitioner No. 6, the complainant, subsequently, in a design manner, filed Complaint Case No. 1377-C of 2000, which was subsequently registered as Raniganj P.S.Case No.178 of 2000. The statutory investigating agency after investigating the case found, the allegation as civil in nature and as such final report was submitted. It was submitted that only after filing of the suit by petitioner No. 6, the complainant, subsequently, in a design manner, filed Complaint Case No. 1377-C of 2000, which was subsequently registered as Raniganj P.S.Case No.178 of 2000. The statutory investigating agency after investigating the case found, the allegation as civil in nature and as such final report was submitted. Subsequently, protest petition filed by the complainant was treated as complaint petition and thereafter, the learned Magistrate has proceeded with the complaint case, while passing order of cognizance. 7. Learned counsel for the petitioners, while emphasizing that it was a purely civil dispute and criminal Court was not entitled to proceed with the case, has heavily relied on a judgment of this Court reported in 2000 (2) PLJR 243 , Ramaashish Choudhary & Ors. V/s. State of Bihar & Anr. Learned counsel for the petitioners has specifically referred to paragraphs 4 and 5 of the judgment. It would be appropriate to quote the same as follows : "4. In this connection it has been claimed in the petition for quashing that a police case was lodged under orders of the learned Chief Judicial Magistrate who had forwarded the complaint petition filed in that regard, which was recorded as Mirganj P.S. Case No.44/95 (Annexure-1). 5. After investigation the police concluded that the prosecution case was false and fabricated and the case was lodged by the complainant with a motive to grab property from co-sharer Munni Devi and Saroj Devi, who were the rightful owners of the land in question. A prosecution under Section 182/211 of the I.P.C. against the informant was recommended (Annexure-2). The final report was accepted by the Chief Judicial Magistrate, Gopalganj on 21.11.1995 and the protest petition filed by the informant was treated as complaint petition in which enquiry was held and the impugned order was passed." 8. It was submitted that the learned Magistrate, without application of mind, has passed the order of cognizance and subsequently, the learned Sessions Judge has also mechanically rejected the revision petition i.e. Revision Case No.199 of 2002, which was preferred by petitioners against the order of cognizance. 9. Shri Sawangdhar Jha, learned counsel appearing on behalf of opposite party No. 2 has vehemently opposed the prayer of the petitioners. 9. Shri Sawangdhar Jha, learned counsel appearing on behalf of opposite party No. 2 has vehemently opposed the prayer of the petitioners. It has been submitted by Shri Jha that on the basis of complaint petition, it was a clear cut case of forging document. It was submitted that there is specific allegation that accused persons had forged a deed for agreement to sale in respect of land of the complainant. Even on the stamp paper, the stamp vendors signature was forged. It has been submitted that at this stage, this Court is not required to examine the matter meticulously and in depth. At this stage, as per Shri Jha, only prima facie case is to be looked into and according to the complaint as well as few witnesses, specific case was made out against the petitioners and thereafter, the learned Magistrate has rightly passed the order of cognizance. Similarly, the learned Revisional Court has rightly rejected the revision petition. 10. Besides hearing learned counsel for the parties, I have also perused the materials available on record. It is true that first complaint, which was filed by complainant, was referred to the police, and an FIR was registered, but during investigation, the Investigating Officer considered that since a suit was pending before the Court of civil jurisdiction, the allegation was found by the police as civil in nature and final report was submitted by the police. Subsequently, protest petition was filed by the complainant which was treated as complaint petition and during enquiry witnesses had supported the averment made in the complaint petition. On the basis of averment made in the complaint petition, the Court is satisfied that the learned Magistrate had rightly taken cognizance of the offences. However, this Court has doubt in respect of application of Section 384 of the Indian Penal Code in view of the facts and circumstances of the present case, it is needless to say that application of penal provisions can be looked into or examined well at appropriate stage before the Court below particularly at the stage of charge. So far judgment relied on behalf of the petitioners i.e. Ramashish Choudharys case (supra) is concerned, the Court is of the opinion that the fact of the said case was not exactly similar to the fact of the present case. So far judgment relied on behalf of the petitioners i.e. Ramashish Choudharys case (supra) is concerned, the Court is of the opinion that the fact of the said case was not exactly similar to the fact of the present case. In the said case, the police, after investigation, had found allegation as false and fabricated. In the present case, the police had not at all suggested regarding falsity of allegation made in the complaint case. Moreover, the Honble Supreme Court in a case reported in 1999(8) SCC 686 , Trisuns Chemical Industry V/s. Rajesh Agarwal and others, has clarified the position. I am of the opinion that even in a case where two remedies Le. criminal and civil are available, the criminal proceeding if offence is made out, cannot be thwarted that too at the stage of cognizance. I am of the view that it is not a fit case for interfering with the impugned orders. 11. Accordingly, the petition stands rejected. 12. In view of rejection of this petition, interim order of stay stands automati- cally vacated. 13. Let a copy of this judgment be sent to the Court below forthwith.