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2012 DIGILAW 617 (PAT)

Krishna Nandan Prasad v. State of Bihar

2012-04-12

RAJENDRA KUMAR MISHRA

body2012
JUDGMENT R.K. Mishra, J. - The petitioners have preferred this application under Section 482 of the Code of Criminal Procedure to quash the order dated 19.8.2004 passed in Criminal Revision No. 65 of 2002/58 of 2003, whereby the learned 1st Additional Sessions Judge, Nawadah, dismissed the aforesaid Criminal Revision preferred by the accused-petitioners against the order dated 18.5.2002 passed in G.R. Case No. 668 of 1998, corresponding to T.R. No. 264 of 2002 by the Court of Sri V.K. Singh, Judicial Magistrate, First Class, Nawadah. 2. In brief the case is that the opposite party No.2. Chandradeep Prasad. filed the Complaint Case No. 280 of 1998 in the Court of the Chief Judicial Magistrate against the accused. named in the complaint petition.. including the petitioners alleging therein that after the death of his father. Chotan Bhagat, partition of the immovable property was made in between him and his three brothers on 14.4.1995. According to partition, he got share of five katha of land of old Plot No. 3040/new Plot No. 1328 of khata No. 28 and since 1985 he is coming in peaceful possession over the said land. His brother, Rajendra Prasad Malakar, who also got five kathas of land of the aforesaid Plot in his share, sold the same to Rameshwar Chaudhary and others. Similarly, his other brother, Mahendra Prasad Malakar, also sold the five kathas of land of the aforesaid Plot of his share. His brothers, Rajendra Prasad Malakar and Mahendra Prasad Malakar are criminals of same nature and their wives used to give threatening to transfer the land of his share. Since he is unemployed, he was out of the district-Nawada in connection with his service. When he returned to Nawada in the last week of the month of April, 1998, his other brother, Suresh Prasad Malakar, informed him that his land has been sold under conspiracy of the accused. Thereafter, he enquired the matter in the Registry Office and came to know that his brother. Rajendra Prasad Malakar and his wife, Vidya Devi, executed the saledeed of 3-3/4 decimals of land out of five kathas of his land on 24.2.1998 through sale-deed No. 1595 on taking consideration amount of Rs. 32.000/- in favour of the petitioner No.1. Krishna Nandan Prasad and his wife. Urmila Devi, the petitioner No. 2. Rajendra Prasad Malakar and his wife, Vidya Devi, executed the saledeed of 3-3/4 decimals of land out of five kathas of his land on 24.2.1998 through sale-deed No. 1595 on taking consideration amount of Rs. 32.000/- in favour of the petitioner No.1. Krishna Nandan Prasad and his wife. Urmila Devi, the petitioner No. 2. His other brother, Mahendra Prasad Malakar and his wife, Kala Devi, also sold 3-3/4 decimals of the land out of five kathas land of his share to the petitioner No.3. Ram Pravesh Prasad alias Ram Pravesh Prasad Ram through sale-deed No. 1596 on taking consideration amount of Rs. 32.000/-. When the opposJtc party No. 2 made protest, then Vidya Devi and Urmila Devi told him to keep mum otherwise giving threatening of his kidnapping and murder. On 11.5.1998 at about 8.30 p.m., his brothers, Rajendra Prasad Malakar and Mahendra Prasad Malakar armed with country made pistol came and pointed out the same on his chest and Leela Devi asked to take him on a vehicle to Rajauli Forest to commit his murder. At that time, Leela Devi and Kala Devi tied the hands of opposite• party No. 2 and his brothers, Rajendra Prasad Malakar and Mahendra Prasad Malakar gave threatening to commit his murder in case of raising hulla. When the jeep proceeded, he raised hulla, on which his brother, Suresh Prasad Malakar, who was coming to his house, saw him and raised hulla then the people rushed and he jumped from the jeep. 3. The aforesaid complaint petition of the opposite party No.2 was sent to the concerned police station by the Chief Judicial Magistrate. Nawadah, for institution of the case and submission of final form and, accordingly, Nawadah Nagar P.S. Case No. 178 of 1998 was instituted on 18.6.1998 under Sections 341, 323, 420, 467, 466 and 471 of the Indian Penal Code against the accused, named in the complaint petition, including the petitioners. After investigation, police submitted the charge-sheet in the Court of the Chief Judicial Magistrate, Nawadah and, accordingly, cognizance was taken. Thereafter, the accused-petitioners rued a petition on 4.10.2001 for discharge in the Court of Sri V.K. Singh, Judicial Magistrate, First Class, Nawadah, who on hearing the parties rejected the petition for discharge vide order dated 18.5.2002. After investigation, police submitted the charge-sheet in the Court of the Chief Judicial Magistrate, Nawadah and, accordingly, cognizance was taken. Thereafter, the accused-petitioners rued a petition on 4.10.2001 for discharge in the Court of Sri V.K. Singh, Judicial Magistrate, First Class, Nawadah, who on hearing the parties rejected the petition for discharge vide order dated 18.5.2002. The accused-petitioners preferred Criminal Revision No. 65 of 2002/58 of 2003 against the aforesaid order which was also dismissed vide order dated 19th of August, 2004 passed by the 1st Additional Sessions Judge-, Nawadah, which is impugned in this application. 4. Learned counsel appearing on behalf of the petitioners made submission that from perusal of the complaint petition, which is the basis of the FIR of Nawadah Nagar P.S. Case No. 178 of 1998, it appears that the petitioner No.1. Krishna Nandan Prasad and his wife, the petitioner No.2, Urmila Devi, are said to be vendees of sale-deed No. 1595 executed by Rajendra Prasad Malakar and his wife. Vidya Devi (brother and sister-in-law of the opposite party No.2). Similarly, petitioner No.3, Ram Pravesh Prasad alias Ram Pravesh Prasad Ram, is also said to be the vendee of sale-deed No. 1596 executed by Mahendra Prasad Malakar and his wife, Kala Devi (brother and sister-in-law of the opposite party No.2). As such, the petitioners are bonafide purchasers and the dispute as alleged in the complaint petition. appears to be of civil in nature. Moreover. the opposite party No.2 had also filed a Title Suit No. 42 of 1998 against the petitioners and others for declaration of sale-deed Nos. 1595 and 1596 null and void but the aforesaid suit was dismissed vide order dated 17.5.2003 passed by the Sub-Judge-IV. Nawadah with the finding that there is no right and title of the opposite party No. 2 in respect to the land in dispute. It has also been submitted that so far as the allegation of assault is concerned, there is no allegation of assault against the petitioners, as would appear from the complaint petition itself, but the opposite party No.2, with malafide intention included the names of the petitioners due to family feud. 5. On the other hand. learned counsel for the opposite party No. 2 made submission that while Title Suit No. 42 of 1998 filed by the opposite party No. 2 was dismissed vide judgment dated 17.5.2003 passed by the Sub-Judge-IV. 5. On the other hand. learned counsel for the opposite party No. 2 made submission that while Title Suit No. 42 of 1998 filed by the opposite party No. 2 was dismissed vide judgment dated 17.5.2003 passed by the Sub-Judge-IV. Nawadah but the opposite party No. 2 has preferred the Title Appeal, which is pending for disposal. The learned counsel appearing on behalf of the opposite party No. 2 fairly conceded that there is no allegation against the petitioners to cause assault to the opposite party No. 2 in the complaint petition, which is the basis of the FIR. 6. The complaint petition of the opposite party No.2, which is the basis of the FIR of Nawada Nagar P.S. Case No. 178 of 1998, discloses that there is allegation against the petitioner Nos. 1 and 2 to get the sale-deed executed regarding 3-3/4 decimals of land out of five kathas of land as allotted in the, share of the opposite party No.2. through sale-deed No. 1595 from Rajendra Prasad Malakar and his wife. Vidya Devi (brother and sister-in-law of the opposite party No.2), who have no right and title to get the sale-deed executed. Similarly, the petitioner No. 3 is alleged to have the sale-deed executed from Mahendra Prasad Malakar and his wife, Kala Devi (brother and sister-In-law of the opposite• party No.2) regarding 3-3/4 decimals of land as allotted in the share of the opposite party No.2. Annexure-'2' is the copy of the judgment dated 17.5.2003 passed in Title Suit No. 42 of 1998 by the Sub-Judge-IV, Nawadah, from which it appears that the opposite party No. 2 had rued the aforesaid Title Suit against the petitioners and others for declaration of sale-deed Nos. 1595 and 1596 executed on 24.2.1998 null and void and confirmation of the possession upon the land in dispute covering in aforesaid sale-deeds but the said suit was dismissed by the Sub-Judge-IV, Nawadah vide order dated 17.5.2003, arriving at the conclusion that the opposite party No. 2 has no right and title with respect to that sale-deeds. As such, from the complaint petition, the dispute appears to be of civil in nature. 7. Under the aforesaid facts and circumstances of the case. As such, from the complaint petition, the dispute appears to be of civil in nature. 7. Under the aforesaid facts and circumstances of the case. the impugned order dated 19.8.2004 passed In Criminal Revision No. 65 of 2002/58 of 2003 by the 1st Additional Sessions Judge, Nawadah as well as the criminal proceeding, arising out of Nawadah Nagar P.S. Case No. 178 of 1998/G.R Case No. 668 of 1998, with respect to the petitioners, is hereby quashed and the application is allowed. Application allowed.