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2015 DIGILAW 715 (JHR)

Hari Prasad Sah v. State of Jharkhand

2015-06-24

D.N.UPADHYAY

body2015
JUDGMENT : This Cr.M.P. has been filed for quashing the order dated 22nd December, 2003 passed by learned Sub Divisional Judicial Magistrate, Deoghar, whereby cognizance for the offence under Sections 452 and 380 of the Indian Penal Code has been taken against the petitioners in connection with P.C.R. Case No.430 of 2003, T.R. No.1238 of 2004. At the very outset, it is pointed out that Petitioner No.1-Hari Prasad Sah is no more in this world and, therefore, prayer made on behalf of Petitioner No.1 has now become infructuous. In view of the submission, name of Petitioner No.1-Hari Prasad Sah stands deleted. 2. The fact, in brief, is that the complainant admits himself to be a tenant under Opposite Party No.3-Kamal Prasad Verma. It is alleged that the accused persons committed theft of the articles, kept in the disputed premises, and after removing the articles the house was demolished by them. Learned Magistrate, after holding enquiry, took cognizance for the offence punishable under Sections 452 and 380 of the Indian Penal Code and directed the petitioners to face trial. 3. Learned counsel appearing for the petitioners has submitted that date of occurrence as per the complaint is 13th August, 2003 and complaint was filed on 18th August, 2003. In order to bring it on record that litigation between Opposite Party No.3-Kamal Prasad Verma and Petitioner No.1-Hari Prasad Sah was prevailing from before, learned counsel has drawn attention towards Annexure-2 and that indicates institution of a criminal case by Petitioner No.1 against said Kamal Prasad Verma. By referring Annexure-3 it is submitted that Title Suit No.28 of 2003 was filed on 7th February, 2003 by said Kamal Prasad Verma, impleading the Petitioner No.1 as defendant and the schedule property is same, which is the subject matter of present criminal case. Kamal Prasad Verma, vide amended Paragraph 12(A) of Title Suit No.28 of 2003, has admitted that the defendants, who are petitioners, have already taken illegal possession of the suit property by breaking open the lock of the room on 6th April, 2003. Again learned counsel has drawn my attention towards the date of occurrence, which is 13th August, 2003 and the date i.e. 6th April, 2003 on which the possession of the said premises was forcibly taken by the accused persons as per the version of said Kamal Prasad Verma (plaintiff in Title Suit no.28 of 2003). 4. Again learned counsel has drawn my attention towards the date of occurrence, which is 13th August, 2003 and the date i.e. 6th April, 2003 on which the possession of the said premises was forcibly taken by the accused persons as per the version of said Kamal Prasad Verma (plaintiff in Title Suit no.28 of 2003). 4. Learned counsel further submits that an injunction petition was also preferred by the Plaintiff/Opposite Party No.3-Kamal Prasad Verma, but he did not succeed, and then he made the complainant instrumental to lodge a case against the petitioners to harass them and to create pressure so that they would succumb to the litigation. It is submitted that it is purely a malicious prosecution, which could not be permitted to proceed further otherwise it would amount to be an abuse of process of law. 5. Counsel appearing for the Complainant/Opposite Party No.2 and Opposite Party No.3 have opposed the argument. It is contended by the complainant that theft was committed and he is the loser. Therefore, wrong doers are liable to be punished in accordance with law. The contentions made by the complainant find support from the statements recorded on solemn affirmation and the witnesses examined during enquiry and the learned Magistrate has rightly taken cognizance against the petitioners. Counsel appearing for Opposite Party No.3 has submitted that a theft was committed in the house of the complainant and for that the petitioners are liable to be dealt with in accordance with law. 6. I have gone through the complaint petition, order impugned and the materials placed before me. It is apparent from the annexures, referred to above, that civil litigation between Kamal Prasad Verma and the petitioners had started pursuing after the Petitioner No.1 purchased said portion of Plot No.169 in the name of his wife. The averments made in Title Suit No.28 of 2003 and the subsequent injunction petition filed in the suit clearly indicate that possession over the disputed schedule property was already taken by the petitioners prior to the date of occurrence mentioned in the complaint. When the house in dispute was not existing on the date of incident, question of occupation of the complainant and theft of articles kept therein do not arise. When the house in dispute was not existing on the date of incident, question of occupation of the complainant and theft of articles kept therein do not arise. It appears from the argument and documents available on record that Kamal Prasad Verma has made the complainant instrumental in lodging complaint case, bearing P.C.R. Case No.430 of 2003, against the petitioners. Since the prosecution launched against the petitioners appears to be malicious one, I feel inclined to allow this petition. Accordingly, this petition is allowed. Order impugned dated 22nd December, 2003 passed by learned Sub Divisional Judicial Magistrate, Deoghar in P.C.R. Case No.430 of 2003, T.R. No.1238 of 2004, stands quashed.