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2011 DIGILAW 1036 (JHR)

Dinesh Prasad v. State of Bihar

2011-11-24

R.R.PRASAD

body2011
JUDGMENT By Court. - Heard learned counsel appearing for the petitioner and learned counsel for the State. 2. No body appeared on behalf of the opposite party. 3. The facts giving rise to these two applications are that Late Dr. Awani Kumar Mukherjee, the grand-father of the complainant Kalyan Kumar Mukherjee had taken land bearing plot No. 187. khata No. 24, situated in mauza Pandedih over which he constructed a building consisting of six rooms along with dining space. latrine, bathroom etc. In the said building Late Dr. Awani Kumar Mukherjee used to run his clinic. For his assistance he appointed the petitioner-Dinesh Prasad as his compounder. In course of time Dr. Awani Kumar Mukherjee died leaving behind his three sons namely Amiya Kumar Mukherjee, Ashit Kumar Mukherjee and Ashok Kumar Mukherjee and his widow Smt. Sabita Mukherjee as his heirs and legal representatives. At the time of death of Dr. Awani Kumar Mukherjee, his elder son Amiya Mukherjee was residing in the said house. but after the death of his father he shifted to the quarter allotted to him along with his wife Smt. Maya Mukherjee (complainant) in Complaint Case No. 567 of 1994, The other two sons of Dr. Awani Kumar Mukherjee also left home, when they got employment. While leaving the house Amiya Kumar Mukherjee allowed the petitioner to stay with his family in two rooms to look after the house so that the valuables such as furnitures etc. kept under lock and key in other three rooms be protected from theft. 4. Further case appears to be that Dr. Awani Kumar Mukherjee during lifetime transferred the house property to his elder son-Amiya Kumar Mukherjee and as such. he became the sole owner of the property and got his name mutated against the said , holding. When Amiya Kumar Mukherjee left home along with his wife by allowing the petitioner to remain in two rooms and to take care of the house, the petitioner forcibly occupied two other rooms by breaking open the lock and removed all the valuables in the year. 1994. Therefore, a Complaint Case bearing C.P. Case No. 567 of 1994 (which gave rise to Criminal Misc. Case No. 3531 of 1999) was filed by the complainant. 1994. Therefore, a Complaint Case bearing C.P. Case No. 567 of 1994 (which gave rise to Criminal Misc. Case No. 3531 of 1999) was filed by the complainant. Maya Mukherjee against the petitioner in the Year 1998, alleging therein that the petitioner did commit under Sections 380,461 and 406, but the cognizance has been taken under Sections 406 and 461 of the Indian Penal Code. 5. further the case appears to be that during inquiry of the complaint lodged by Maya Mukherjee two registered sale deeds were produced showing transfer of the property. in question to this petitioner by Shrt Ashok Kumar Mukherjee and Ashit Kumar Mukherjee and also by Smt. Sabita Mukherjee. When Kalyan Kumar Mukherjee, the complainant of C.P. Case No. 330, of 1999 (giving rise to Baghmara (Mahuda) P.S. Case No. 73 of 1999) came to know about that fact. He inquired it from Ashok Kumar Mukherjee and Ashit Kumar Mukherjee about execution of the sale-deed who denied that they had ever executed any sale-deed. 6. Further case is that Smt. Sabita Mukherjee who is said to have also executed sale-deed in favour of the petitioner was not in a position to move and. therefore. she could not have gone to Dhanbad to execute the sale-deed and as such, the sale-deeds executed by the aforesaid persons are forged and fabricated and thus. it was alleged that the petitioner has committed offence under Sections. 465, 467, 471, 478 and 120-B of the Indian Penal Code. The said complaint bearing Complaint Case No. 330 of 1999, was lodged by Smt. Kalyan Mukherjee was sent before the Police Station for its registration and investigation. Upon which case was registered as Baghmara (Mahuda) P.S. Case No. 73 of 1999. On institution of the case this Criminal Misc. bearing No. 3496 of 1999, has been filed for quashing of the entire criminal proceeding. 7. It be stated that other case bearing Criminal Misc. Case No. 3531 of 1999 was filed for quashing of the entire criminal proceedings of Complaint Case No. 567 of 1994 including the order dated 28.8.1998. whereunder charge has been framed under Sections 461 and 406 of the Indian Penal Code. 8. Since both the cases arise out of the same set of fact, the same were heard together and are being disposed of. by the common order. 9. Having taken notice of the fact stated above. whereunder charge has been framed under Sections 461 and 406 of the Indian Penal Code. 8. Since both the cases arise out of the same set of fact, the same were heard together and are being disposed of. by the common order. 9. Having taken notice of the fact stated above. it does appear that in. one case the petitioner has been alleged to have .committed theft of the valuables kept in two rooms by breaking open the lock and taking possession over it. Whereas, in other case it has been alleged that the petitioner No.1, in connivance with other got two registered sale-deeds executed by Ashok Kumar Mukherjee and Ashit Kumar Mukherjee the uncle of the petitioner Kalyan Kumar Mukherjee and also by Smt. Sabita Mukherjee, the widow of Late Dr. Awani Kumar Mukherjee which sale-deeds are forged and fabricated. It be stated that the sale-deeds have been executed in favour of Ram Swarup Prasad, the father of the petitioner Dinesh Prasad and as such not only Rameshwar Prasad has been made accused rather his son. Dinesh Prasad, Vinod Prasad and Bindshwari Prasad have also been made accused though it appears from the facts stated above that the property was transferred in the name of petitioner. No.1, Ramswarup Prasad. In that event the petitioners in Cr. Misc. No. 3496 of 1999 and also the petitioner. Dinesh Prasad in Cr. Misc. No. 3531 of 1999 cannot be said to have committed offence under Section 461 as the petitioner in the aforesaid facts cannot be said to have broken the house opened dishonestly. At the same time they cannot be said to have committed offence under Section 406 of the Indian Penal Code. So far prosecution under Sections 465,467,468,471 read with Section 120-B of the Indian Penal Code is concerned the petitioner cannot be said to have committed offence under the aforesaid offences for the reason that the sale-deeds had been executed by three persons named above which sale-deeds though have been said to be forged, but that would be a subject-matter of civil dispute. Under the circumstances, the entire criminal- proceeding including the order dated 28.8.1998 passed in Complaint Case No. 567 of 1994, is hereby quashed, At the same time entire criminal proceeding of Baghmara (Mahuda) P.S. Case No. 73 of 1999 is also quashed. In the result both the applications stand allowed. Applications allowed.