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2013 DIGILAW 373 (JHR)

Basanti Devi v. State of Jharkhand

2013-03-14

D.N.UPADHYAY

body2013
ORDER 1. This Cr. Misc. Petition has been filed for quashing of the entire criminal prosecution arising out of Kasmar P.S. Case No. 62 of 2000 registered for the offences punishable under Sections 465/468 of the Indian Penal Code then pending in the Court of the learned S.D.J.M., Bermo at Tenughat and also the order dated 21.03.2001 by which the learned A.C.J.M. has taken cognizance against the petitioners. 2. The brief facts as it appear from the Complaint is that the complainant claims himself to be the grandson of Lakshman Mahto. It is further stated that Lakshman Mahto had two sons and one daughter, namely, Jitu Mahto, Sona Ram Mahto and daughter Nhuni Bala Devi. Nhuni Bala Devi was married with Aklu Mahto and she was having three sons namely Chunua Kurmi, Bhadarua Kurmi and Baini Kurmi. The aforesaid three sons of Aklu Mahto had acquired 42 decimals of land in village Raghunathpur prior to Survey and Settlement Operation and they were coming in peaceful possession over the said land. It is again contended that all the three sons of said Aklu Mahto died issueless and after that the complainant and his brother have been coming in possession over the said land. It is alleged that the accused persons after hatching out a conspiracy got the said land transferred in the name of accused no.1 to 7 through vendor- Shyam Lal Mahto. Shyam Lal Mahto is claiming himself to be the grandson of Chunua Kurmi. The sale-deed executed by said Shyam Lal Mahto is purelya forged document and created to make claim over the land which has been coming in possession of the complainant and his brothers. When the complainant could learn about the forgery committed by the accused persons, he has filed a complaint which was sent to the concerned police under Section 156 (3) of the Code Criminal Procedure 2 and after that Kasmar P.S. Case No. 62/2000 date 16.12.2000 under Sections 420/465/468/34/120B of the Indian Penal Code was registered. After completing investigation, the police has submitted final form but the learned A.C.J.M. after going through the case diary and the materials available, passed the impugned order dated 21.3.2001. 3. It is submitted that in the entire complaint the complainant has not stated anywhere as to how and when he came in possession over the land in question. After completing investigation, the police has submitted final form but the learned A.C.J.M. after going through the case diary and the materials available, passed the impugned order dated 21.3.2001. 3. It is submitted that in the entire complaint the complainant has not stated anywhere as to how and when he came in possession over the land in question. In para 1, the complainant claims himself to be the grandson of Lakshman Mahto and again in para 2 he disclosed the names of two sons of Lakshman Mahto i.e. Jitti Mahtoand Sona Ram Mahto but those two names did not tally with the name of the father of this petitioners given in the complaint. Thus it is clear that the complainant himself has not given his correct identity at the time of filing of this complaint. Not only that he has failed to give any details as to how and when he came in possession over the land in question and no chit of paper has been annexed with the Complaint Petition or produced before the I.O. during investigation. After completing investigation, the police has submitted final report and also recommended for the prosecution of the complainant under Sections 182 and 211 of the Indian Penal Code. Learned Counsel has also drawn my attention towards the impugned order dated 21.03.2001 and submitted that the learned A.C.J.M. has not assigned any cogent reason for taking cognizance. It appears that the case was sent to the police for investigation under Section 156 (3) Cr. P.C. but the submission of final report some how or the other caused some inconvenience to the leaned A.C.J.M. and therefore, the cognizance on whimsical ground has been taken. As a matter of fact, the complainant with an intention to create some sort of claim over the land in question has launched this malicious prosecution against the petitioners. Till the date it is unknown as to why the petitioner nos. 8 to 15 have been made accused and what role they had played. 4. On the other hand, counsel appearing for the complainant has vehemently opposed the argument and submitted that any person has right to put the law in motion if any cognizable offence is committed. It is made clear in para 6 of the complaint that the complainant had been coming in possession over the land in question after the death of three sons of Aklu Mahto. It is made clear in para 6 of the complaint that the complainant had been coming in possession over the land in question after the death of three sons of Aklu Mahto. The witnesses examined in the case diary have clearly stated that no person as Shyam Lal Mahto, who had executed the sale-deed in favour of accused persons, was ever available in the village or known to any of the villagers. It has been further pointed out that the defence of the petitioner-accused cannot be considered at this stage in a petition filed under Section 482 of the Code of Criminal Procedure. 5. I have gone through complaint petition, impugned order and the materials placed before me. At the very outset, I feel no hesitation to observe that the complainant has not given his actual identity and he himself has contradicted the same in the complaint itself. Furthermore, he has not placed any chit of paper to show as to what right, title, interest or possession he had over the land in question. I do agree that any person has right to put the law into motion if cognizable offence has been committed but for that prima facie substantial evidence is required. It is apparent from the complaint that no decendant of Aklu Mahto has come forward to raise any objection against transfer of the land in favour of petitioner no. 1 to 7 and the right, title, interest or possession of three sons of Aklu Mahto is not under dispute. Only because the I.O. has failed to find out a person having identity of Shyam Lal Mahto in the village, it cannot be said that the sale-deed was executed by an imposter. I have also gone through the impugned order dated 21.3.2001 but I did not find that the learned A.C.J.M. has discussed the evidence collected in the case diary to attract ingredients of Sections420/465/468 of the Indian Penal Code. In view of the fact the complainant has not come forward with his actual identity, he has failed to furnish any document to show that he had had any right, title, interest or possession over the land in question, it will not be considered that he has been cheated by the accused persons by any means. Further more, no decendant of Aklu Mahto has come forward to show that the sale-deed was wrong and it was impersonated. 6. Further more, no decendant of Aklu Mahto has come forward to show that the sale-deed was wrong and it was impersonated. 6. Considering all these aspects of the matter, I do not feel inclined to allow the such malicious prosecution against the petitioners and therefore the order dated 21.03.2001 taking cognizance passed by the Addl. Chief Judicial Magistrate in connection with Kasmar P.S. Case No. 62 of 2001 is set aside and the entire criminal prosecution of the petitioners arising of said P.S. Case stands quashed. Accordingly, this petition is allowed.