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2014 DIGILAW 1017 (PAT)

Guddu Singh v. The State of Bihar

2014-09-19

ASHUTOSH KUMAR

body2014
Judgment Heard the parties. 2. Both the cases have been heard together and are being disposed of by a common judgment. 3. The present application has been filed against the order dated 24.01.2007 passed by the learned Judicial Magistrate, 1st Class, in Complaint Case No. 2555 of 2006, whereby cognizance has been taken under Sections- 147, 352, 385, 379 and 506 of the India Penal Code. 4. A complaint was filed on 17.10.2006 by Opposite Party No. 2 alleging that on 05.10.2006 about 100 and odd persons including the petitioners came to his residential house. Petitioner Nos. 1 and 5, pointed their weapons towards him with a threatening to kill him. Thereafter, Binod Kumar Jain and Manoj Kumar Jain exhorted the accused persons to rob and take away all the property of the house. A suitcase, containing jewellery and cash were taken away. Mobile phone was also snatched away by Petitioner No. 5 (in Cr. Misc. No. 15595 of 2008). It was also alleged that after half an hour, the accused persons came and forcibly obtained his signature on plain papers under threat and duress. On the basis of the aforesaid allegation, Complaint Case No. 2555 of 2006 was instituted. 5. It has been submitted on behalf of the counsel for the petitioners that the petitioners are the family friends of Binod Kumar jain and Manoj Kumar Jain, who have been arrayed as Accused No. 6 and 7 in the Complaint Petition (petitioners in Cr. Misc. No. 15212 of 2007). A frivolous and false allegation is stated to have been levelled against the accused persons. The property, in question, was delivered to Accused Nos. 6 and 7 in pursuance of delivery of possession in Execution Case No. 10 of 1993 in presence of Magistrate, Pleader Commissioner and other executing agency of the Civil Court. These facts have been suppressed in the present complaint, which has been filed as a retaliation. Learned counsel for the petitioners has drawn the attention of this Court to various annexures, which only demonstrate that a final decree was passed in the Redemption Suit No. 223 of 1985 in which D.P. was issued on 10.07.2006. The Miscellaneous Case filed by Opposite Party No. 2 raising objection under Order XXI Rules 97 and 99, claiming the property on the basis of Mahadnama by the original land owner and on the basis of adverse possession, was dismissed. The Miscellaneous Case filed by Opposite Party No. 2 raising objection under Order XXI Rules 97 and 99, claiming the property on the basis of Mahadnama by the original land owner and on the basis of adverse possession, was dismissed. The Execution Case was finally disposed of on 20.12.2006 whereby the possession was confirmed. 6. Thus, it appears that by suppressing all these facts, the present complaint has been lodged with absolutely false allegations. A title suit No. 238 of 2006 is also pending adjudication before the competent court. On the strength of all such documents, it was argued that the order taking cognizance under various sections of the Indian Penal Code is not sustainable in the eyes of law. 7. In G. Sagar Suri Vs. State of U.P. reported in (2000) 2 SCC 636 it has been held that it is to be seen if a matter which is essential of a civil nature, has been a cloak of criminal offence. Criminal proceedings are not a short cut of other remedies available in law. Hence, the Hon’ble Supreme Court directed that before issuing process, the criminal courts should exercise a great deal of caution. For the accused, it is a serious matter. Hence, the Court laid down the criteria for exercise of power by the High Court under 482 of the Cr.P.C. for preventing the abuse of process of the Court and to secure the ends of justice. 8. It is well settled law that even the complainant, who initiates a prosecution being fully aware that the criminal proceedings are unwarranted and his remedy lies only in civil law, should himself be made accountable and at the end of such misconceived criminal proceeding in accordance with law, it was also held that the Court should take punitive steps for unnecessary pressure and harassment of the innocent parties and for that, the exercise of power under Section 250 Cr.P.C. should be resorted more frequently, when the malicious, frivolous and ulterior motive is reflected on the part of the complainant. 9. On a careful consideration of the documents offered and submissions made on behalf of the parties, it appears that the present criminal case is an off-shoot of the defeat of opposite party no. 2 in the redemption suit and execution case. Such vindictive approach, only reflects that after opposite party no. 9. On a careful consideration of the documents offered and submissions made on behalf of the parties, it appears that the present criminal case is an off-shoot of the defeat of opposite party no. 2 in the redemption suit and execution case. Such vindictive approach, only reflects that after opposite party no. 2 has met his waterloo in other proceedings, he has tried to show his angst against the petitioners. 10. Keeping this aspect and other materials in mind, the order taking cognizance is set aside. The application stands allowed. Application allowed.