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2013 DIGILAW 6 (PAT)

Rabin Mahtha v. State of Bihar

2013-01-04

HEMANT KUMAR SRIVASTAVA

body2013
ORDER This quashing petition u/S 482 of the Cr.P.C. has been filed for quashing the entire prosecution of the petitioners in relation to C.R. No. 730 of 2009/T.R. 555 of 2009 including the order dated 31-07-2009 passed by Shri Deshmukh, learned Judicial Magistrate-Ist Class, Samastipur and order dated 24-02-2010 passed by Additional Session Judge (Fast Track Court No.-I), Samastipur in Cr. Rev. No. 660 of 2009. 2. The brief fact which lies to file this quashing petition is that Opposite party No. 2 gave written report to officer-in-charge of Chakmehsi police station stating therein that he was residing at Patna and in his absence; petitioners and 2-3 unknown persons cut LICHI trees and one mango tree on 12-09-2008 from his land. 3. On the basis of aforesaid written report, Chakmehsi P.S. Case No. 86 of 2008 u/Ss 143, 379 of the Indian Penal Code was registered against petitioners and some unknown persons. The matter was investigated by the police and after investigation, police submitted final form showing land dispute. 4. The Opposite party No. 2 filed Protest Petition. The final form was accepted and the learned court below proceeded on protest petition treating it as complaint petition and having conducted an inquiry u/S 202 of the Cr.P.C. passed the impugned order dated 31-07-2009 taking cognizance of the offences u/Ss 447, 379 of the Indian Penal Code. 5. Being aggrieved by order dated 31-07-2009 passed by Sri Deshmukh, J.M. Ist Class, Samastipur in C.R. No. 730 of 2009, petitioners preferred Cr. Rev. No. 660 of 2009 which was dismissed by learned Additional Session Judge (Fast Track Court No.-I ), Samastipur vide his order dated 24-02-2010 on the ground that the aforesaid revision is hit by law of limitation. 6. Petitioners challenged their prosecution in C.R. No. 730 of 2009 as well as impugned orders dated 31-07-2009 and 24-02-2010 by filing this quashing petition. 7. Notices were issued to Opposite party No. 2 who made his appearance through his learned counsel and also filed counter affidavit. 8. 6. Petitioners challenged their prosecution in C.R. No. 730 of 2009 as well as impugned orders dated 31-07-2009 and 24-02-2010 by filing this quashing petition. 7. Notices were issued to Opposite party No. 2 who made his appearance through his learned counsel and also filed counter affidavit. 8. Learned counsel appearing for petitioners submits that petitioners are purchasers of the trees, in question, and as a matter of fact, they had purchased the trees, in question, from one, Sushila Devi, wife of Late Pashupati Mahtha for a consideration of Rs 2201/- for the purpose of being used as firewood since the trees were dead and dry which is evident from perusal of Annexure-5 to the petition. It is further pointed out by him that there was land dispute between the aforesaid Sushila Devi and Opposite party No. 2 and both parties are claiming their right, title and possession over the disputed plot No. 6199 of Khata No. 531. It is also contended by him that the aforesaid lands were sold by one, Purushottam Mahtha S/o Shital Mahtha to Pashupati Mahtha in the year, 1985 and the aforesaid Pashupati Mahtha was husband of the above-said Sushila Devi and after death of aforesaid Pashupati Mahtha, Sushila Devi came in possession of the aforesaid lands and later on, she transferred the aforesaid lands to one, Baiju Sahani and Rajendra Paswan on 21-12-2009. It is further contended by him that Opposite party No. 2, too, sold the aforesaid lands to several persons, though he had got no concern with the aforesaid land. It is further pointed out by him that case and counter case between the aforesaid persons are still pending in the court of Commissioner, Darbhanga and, therefore, even if, it assumed that the trees in question, were cut by the petitioners from the disputed land, then also, petitioners, being bona fide purchasers had every right to cut the trees, in question, from the disputed plots. 9. 9. On the otherhand, learned counsel appearing for the Opposite party No. 2 submitted that so called sale deed said to be executed by Purushottam Mahtha in favour of Pashupati Mahtha is a forged and fabricated sale deed and a complaint case being Complaint Case No. 11 of 2010 has been filed in respect of the aforesaid forged sale deed in the court of Judicial Magistrate-Ist Class, Samastipur for the offences u/Ss 120B, 433, 467, 468 of the Indian Penal Code and the said complaint case is still pending and, therefore, it is clear that neither Pashupati Mahtha nor his wife, namely, Sushila Devi had any right, title and possession over the disputed land and said Sushila Devi had no right to sell the trees standing on the disputed plots. It is further contended by him that as a matter of fact, the lands in question, including the trees belongs to one, Sheetal Prasad Mahtha who happened to be ancestor of the Opposite party No. 2 but the aforesaid Sushila Devi, in collusion with these petitioners, got cut the trees from the disputed lands and, accordingly, a clear cut case u/S 379 of the Indian Penal Code is made out against these petitioners. It is further contended by him that the present petition is not properly sworn by any family member or relative of the petitioners and, therefore, present petition is not properly affidavited. 10. Having heard the contentions of both the parties, I have gone through the record. 11. Admittedly, both parties are claiming their right, title and possession on the above-said disputed lands and, therefore, it is apparent from the aforesaid fact that there is bona fide land dispute between the parties. So far as petitioners are concerned, it is stated that they had purchased the trees from one of the parties and the aforesaid fact clearly goes to show that petitioners are bona fide purchasers and, therefore, application of Section-379 of the Indian Penal Code is completely lacking in this case. Furthermore, it is an admitted position that civil dispute between the aforesaid persons, is pending before the learned Commissioner, Darbhanga. So, I am of the opinion that continuance of the prosecution of the petitioners, in the present case, is nothing but only an abuse of process of the court and this court must exercise its power vested u/S 482 of the Cr.P.C. 12. So, I am of the opinion that continuance of the prosecution of the petitioners, in the present case, is nothing but only an abuse of process of the court and this court must exercise its power vested u/S 482 of the Cr.P.C. 12. In view of the aforesaid discussions, this quashing petition is allowed on admission stage itself and, accordingly, the prosecution of the petitioners in C.R. No. 730 of 2009/Trial No. 555 of 2009 including the order dated 31-07-2009 passed by Sri Deshmukh, J.M. Ist Class, Samastipur in the above-said case as well as order dated 24-02-2010 passed by learned Additional Session Judge (Fast Track Court No.-I), Samastipur in Cr. Rev. No. 660 of 2009 are, hereby, quashed. 13. In the aforesaid manner, this petition stands disposed of on admission stage itself.