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2012 DIGILAW 448 (JHR)

Bina Devi v. State of Jharkhand

2012-03-27

H.C.MISHRA

body2012
JUDGMENT H.C.Mishra, J. Heard the learned counsels for both the sides. 2. This writ application has been filed for quashing the entire criminal proceeding in complaint Case No. C/II-20 of 1987 pending in the Court of Sri A.K.Jaiswal, learned Judicial Magistrate, 1st class, Ranchi, including the order dated 26.8.1995 passed therein, whereby the prima facie case was found against the petitioners for the offence under Section 71-B of the Chotanagpur Tenancy Act (hereinafter to be referred as the ‘C.N.T. Act’) and under Sections 147, 148, 448 and 506 of the I.P.C and the processes were directed to be issued. The proceeding relates to land appertaining to C.S Khata No. 59 (corresponding to R.S Khata No. 201), C.S Plot No.200 (corresponding to R.S Plot No. 158) comprising an area of 1.68 Acres situated in Ranchi. 3. It appears from perusal of the writ application that in the year 1985 the respondent No.2, Jogesh Oraon filed an application under Section 71-A of the C.N.T. Act for restoration of the said land from the petitioner, Smt. Bina Devi, alleging therein that she had illegally taken possession of the land by practicing fraud or deceit. On the said application, the Special Officer, SAR (Scheduled Area Regulation) by order dated 3.1.1987 passed in SAR Case No. 419/85, held that the petitioner, Smt. Bina Devi was in unlawful possession of the land and accordingly, passed an order of restoration in favour of the applicant. The said order has been brought on record as Annexure-1 to the writ application. Being aggrieved by the order as contained in Annexure 1, the petitioner, Smt.Bina Devi filed an appeal before the Additional Collector, Ranchi being SAR Appeal No. 6-R-15/1987-88 and by order dated 18.9.1987, the Additional Collector allowed the appeal and remanded the matter back to the Special Officer, S.A.R. The said order of remand has been brought on record as Annexure-3 to the writ application. At this point, it appears from the counter affidavit filed on behalf of respondent No.2, that delivery of possession was also affected to the respondent No.2. At this point, it appears from the counter affidavit filed on behalf of respondent No.2, that delivery of possession was also affected to the respondent No.2. The respondent no.2 has brought on record Annexure-B to show that on 3.1.1987 the delivery of possession was given with respect to 1.59 acres of land to the respondent no.2, but in view of the fact that on 12 decimals of land and 15 decimals of land, there were house and pathways, the delivery of possession thereof could not be given to the respondent on the said date. Annexure-D which has been brought on record by the respondent shows that on 28.4.1987 at about 12.30 P.M the petitioner, Smt. Bina Devi was dispossessed from the house and delivery of possession was given to the respondent No.2, Jogesh Oraon. It appears that thereafter, this Complaint Case No. C/II-20 of 1987 was filed in the Court of learned Chief Judicial Magistrate, Ranchi which has been brought on record as Annexure-4 to the writ application, in which, it is alleged in paragraph 9 as follows :- “9.That on 29.4.1987 at about 10 A.M the accused persons armed with deadly weapons such as Bhala, fire arms and other lethal weapons forcibly entered the aforesaid premises, which was legally and validly given delivery of by the legal authority appointed by law. The accused persons took forcible possession of the premises by show of force and criminal intimidation. They threatened to shoot the complainant in case he interfered.” 4. In the meantime, on 11.10.1988 the Special Officer, SAR, to whom the matter was remanded back by the Additional Collector, cancelled his earlier order of restoration of land in favour of respondent No.2 and directed that the delivery of possession of land in question be given to Smt. Bina Devi, the petitioner, which is Annexure -5 to this writ application. The respondent Jogesh Oraon being aggrieved by the said order, moved before the learned Deputy Commissioner, Ranchi in SAR Misc. Case No. 70-R-15/1988-89 and by order dated 22.12.1988, the operation of the order passed by the Court below i.e. the order contained in Annexure -5 to this writ application was stayed and it appears that the matter is still pending before the Deputy Commissioner, Ranchi. Case No. 70-R-15/1988-89 and by order dated 22.12.1988, the operation of the order passed by the Court below i.e. the order contained in Annexure -5 to this writ application was stayed and it appears that the matter is still pending before the Deputy Commissioner, Ranchi. It further appears from the writ application that in the said Complaint Case No. C/II-20 of 1987 the prima facie case was found against the petitioners by order dated 25.5.1987, against which, the petitioners moved before this Court in Cr.Misc. No.144 of 1989 (R), which was allowed by order dated st February 1991, as contained in Annexure-7, whereby, the order impugned therein was quashed and the matter was remanded back to the learned Chief Judicial Magistrate, Ranchi to proceed in accordance with law. Thereafter, the Chief Judicial Magistrate, Ranchi passed an order dated 12.8.1992 dismissing the complaint under Section 203 of the Cr.P.C. The said dismissal was challenged by the respondent Jogesh Oraon in the Court of learned Sessions Judge in Cr.Revision No. 177 of 1992 and the same was also dismissed. The respondent Jogesh Oraon aggrieved thereby, moved this Court in Cr.W.J.C. No. 495 of 1993(R) in which it appears that the notice was issued to the petitioners herein, but in spite of service of notice, they did not appear and by ex-parte order dated 8.2.1995, the said Cr.W.J.C No. 495 of 1993 (R ) was allowed and both the orders dated 12.8.1992 passed by the learned C.J.M, Ranchi and the order dated 16.10.1993 passed by the learned Additional Judicial Commissioner, Ranchi in Cr.Revision No.177 of 1992 were set aside and the matter was again remanded back to the court of Chief Judicial Magistrate, Ranchi for further enquiry in accordance with law. Thereafter, upon an enquiry, the Court below passed the impugned order dated 26.8.1995, whereby, again the prima facie case was found against the petitioners and the processes were ordered to be issued which has been challenged in this writ application. The petitioner has also annexed the entire order-sheet of the said Complaint Case No.C/II-20 of 1987 as Annexure -11, which shows that after passing the impugned order dated 26.8.1995 the case has travelled to different Courts and till 31.6.2000, the case appears to be pending only for evidence before the charge. The petitioner has also annexed the entire order-sheet of the said Complaint Case No.C/II-20 of 1987 as Annexure -11, which shows that after passing the impugned order dated 26.8.1995 the case has travelled to different Courts and till 31.6.2000, the case appears to be pending only for evidence before the charge. It also appears that in the present writ application, the stay order was passed, staying the proceedings in the Court below on 14.6.2001 and since the last more than a decade, the proceedings are stayed in the Court below by virtue of the stay order passed by this Court. 5. From the aforementioned facts, the present scenario of the case that emerges is that the petitioner Smt. Bina Devi was admittedly in possession over the land in question from before and there is litigation between both the parties for the possession of the land which is pending in the competent Court. So far as the allegations in the complaint petition is concerned, it is apparent from the complaint petition that admittedly, the petitioner Smt. Bina Devi was in possession over the land in question and though the vacant portion of land was delivered to the respondent Jogesh Oraon on 3.1.1987, but so far as the house in question is concerned, the delivery of possession thereof was given to him only on 28.4.1987 at 12.30 P.M and according to the complaint petition filed by the respondent No.2, the accused persons again forcibly took the possession of the land and the house at 10.00 A.M on 29.4.1987. Thus, according to the admission of the complainant respondent himself, the house in question was not in his possession even for 24 hours and this criminal case is being dragged from the year 1987 itself, wherein there is no allegation of any assault against anyone. There is no mention that any one was assaulted or injured in the occurrence. There is only allegation that the accused persons forcibly took the possession of the land in question. It is also apparent that till 31.6.2000, the matter was only at the stage of evidence before the charge and thereafter for more than a decade, the proceedings are stayed. 6. In these backdrops of the facts, it is submitted by the learned counsel for the petitioner that the case is of a civil nature and the entire criminal proceedings against the petitioners are fit to be quashed. 6. In these backdrops of the facts, it is submitted by the learned counsel for the petitioner that the case is of a civil nature and the entire criminal proceedings against the petitioners are fit to be quashed. Learned counsel has further submitted that the present complaint case has been filed by the respondent No.2 only with malafide intention and with ulterior motive for wrecking vengeance against the petitioners and accordingly, the case is fully covered by the law laid down by the Hon’ble Supreme Court of India in State of Haryana and others Vs. Bhajan Lal and Others, reported in 1992 Supp (1) SCC 335, followed by the Hon’ble Supreme Court of India in State of Karnataka Vs. M.Devendrappa and another, reported in A.I.R 2002 (SC) 671, wherein, it has been laid down the extraordinary powers under Article 226 of the Constitution of India can be exercised for quashing the criminal proceedings in such a situation. 7. Learned counsel for the private respondent no.2 on the other hand has drawn the attention of this Court towards Annexures B and D as referred above, to show that the delivery of possession of the land was affected to the respondent No.2 and as such, on the allegation made in the complaint petition that the petitioners forcibly dispossessed the private respondent from the said land, makes out the offence against the petitioners and accordingly, there is no illegality in the impugned order, finding prima facie case against them and the same cannot be interfered with. 8. Learned counsel submitted that even from the Bajanlal’s case (supra) relied upon by the learned counsel for the petitioner, it would appear that where the case is made out on a plain reading of the complaint petition, the proceeding cannot be quashed at the initial stage. Learned has also drawn attention towards the decision of Patna High Court, Ranchi Bench in the case of Kamal Nayan Narsaria @ Kamal Narsaria Vs. The State of Bihar & Ors., reported in 1996 (1) PLJR 327 , wherein, it has been held that the writ jurisdiction should not ordinarily be invoked where the jurisdiction under Section 482 of the Cr.P.C was available and the prayer can be allowed only in case where it is held that the entire allegation in the F.I.R taken on the face value do not prima facie constitute any cognizable offence. Learned counsel accordingly submitted that there is no illegality in the impugned order passed by the Court below, which has been passed upon the direction of this Hon’ble Court as contained in Annexure 7 and as such, the same cannot be interfered with. 9. After having heard the learned counsels for both the sides, I am of the considered view that in the complaint petition, though it is alleged that the petitioners had taken possession of the land from the complainant by use of force, but it is apparent that admittedly, the petitioner Smt. Bina Devi was in possession of the land in question from before. Though she was dispossessed from the vacant piece of land on 3.1.1987 and the delivery of possession was affected to the respondent no.2, but so far as the house in question is concerned, it is apparent from the document brought on record by the respondent No.2 himself that on 28.4.1987, the delivery of possession with respect to house was given to the respondent no.2 at 12.30 P.M and as per the allegation in the complaint petition, on the very next date i.e on 29.4.1987, the possession was taken back by the petitioners. It also appears that the dispute with regard to the possession of the land in question is pending before the competent Court. In these backdrops as stated earlier, the matter is pending since 1987 and on 31.6.2000 the matter was only at the stage of evidence before the charge. Thereafter, the proceedings are stayed and as on date, the matter is pending for about 25 years. The petitioners have been dragged in this protracted litigation for all these years, that too in a case, in which, the petitioner, Smt. Bina Devi was admittedly in possession from before and the respondent No. 2 was in possession of the house in dispute admittedly for less than 24 hours. 10. In the facts and circumstances of this case, I am of the considered view that the Complaint Case and the criminal proceeding in Case No. C/II-20 of 1987 cannot be continued against the petitioners even after 25 years, particularly in a case where the possession of the petitioners with respect to land in question is admitted by the respondent No.2 and the possession of the house in question had admittedly not remained with the respondent No.2 even for a period of about 24 hours. The continuance of the present complaint case is only an abuse of the process of law and the same cannot be continued. 11. In view of the aforementioned discussions, the Complaint Case No.C-II-20/87, including the order dated 26.8.1995 and the entire proceedings therein, pending in the court of Sri A.K.Jaiswal, learned Judicial Magistrate, 1st class, Ranchi are hereby, quashed. This writ application is, accordingly, allowed.