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2017 DIGILAW 1145 (PAT)

Md. Nasimuddin @ Nasimuddin v. State of Bihar

2017-08-30

MOHIT KUMAR SHAH

body2017
JUDGMENT : 1. The present matter arises out of a complaint made by the opposite party no. 2 Aasha Devi dated 17.10.2011 before the officer-in-charge, Gardanibagh P.S. Patna inter alia stating therein that she has got 04 kathas of land at Paharpur police colony bearing plot no. 199 khata no. 138 admeasuring 56 decimals. It has been alleged that on 13.10.2011 at about 11 hours in the day while she had come to her land, the petitioners herein suddenly came there and told her to run away whereupon, the opposite party no. 2 told that since she had come there to see her land, she will not go away at any cost. Thereafter, the petitioners herein started assaulting the opposite party no. 2, tore her clothes and also took away her gold ornaments. 2. On the basis of aforesaid complaint dated 17.10.2011, Gardanibagh PS case no. 287 of 2011 dated 17.10.2011 was registered under Sections 447, 323, 341, 354 and 379 of Indian Penal Code. 3. The learned court of Chief Judicial Magistrate, Patna by an order dated 08.08.2012 has taken cognizance against the petitioners herein for the offences punishable under Sections 447, 323, 341, 354 and 379 of Indian Penal Code. 4. The aforesaid order dated 08.08.2012 passed by the learned Chief Judicial Magistrate, Patna has been assailed in the present petition. 5. It appears that during the pendency of the present case, the learned trial court has framed charges against the petitioners herein by an order dated 03.08.2015 for the offences punishable under Sections 447, 323, 341, 379/34 of Indian Penal Code in connection with Gardanibagh PS case no. 287 of 2011 consequently, the petitioners have moved I.A. no. 1714 of 2017, seeking quashing of the said order dated 03.08.2015. 6. The learned counsel for the petitioners has submitted that the present prosecution, at the behest of the opposite party no.2 is malafide inasmuch as, the land i.e. plot no. 199 khata no. 138 situated at Paharpur police colony is a Wakf property for which, civil litigation is going on and the said property is in possession of the Secretary of the Managing Committee of Wakf no. 1817, headed by the petitioners as is apparent from the letter no. IV(H)W. No. 1817-SWB/2710 dated 09.09.1985 of the Office of Bihar State Sunni Wakf Board, Patna (Annexure 2 to the petition) and the letter no. 1817, headed by the petitioners as is apparent from the letter no. IV(H)W. No. 1817-SWB/2710 dated 09.09.1985 of the Office of Bihar State Sunni Wakf Board, Patna (Annexure 2 to the petition) and the letter no. 2293 dated 23.12.2002 written by the Secretary, Bihar State Sunni Wakf Board, Patna (Annexure 3 to the petition) as well as letter no. 2107 dated 15.09.2008 written by the Chief Executive Officer, Bihar State Sunni Wakf Board, Patna (Annexure 4 to the petition) and the letter dated 03.01.2007 written by the Secretary, Mining Welfare Department. It has been further submitted that at the instance of the opposite party no.2, a proceeding has also been initiated under Section 144 of Code of Criminal Procedure against the petitioners herein in connection with the very same land as is apparent from Annexures 5 and 5/1 to the petition. A registration certificate dated 09.09.1985 granted by Bihar State Sunni Wakf Board showing that the aforesaid land is a graveyard and imambada and the registered land of Bihar State Sunni Wakf Board has also been brought on record. Lastly, it has been contended that on account of evil eyes of the opposite party no.2 on the aforesaid Wakf property, the opposite party no.2 has, in a malafide manner, instituted the present criminal case. 7. The learned counsel for the petitioner has also relied upon a number of judgments i.e. (i) State of Haryana vs. Bhajan Lal reported in 1992 Suppl. (1) SCC 335 (ii) Baijnath Jha vs. Sita Ram and Anr reported in (2008) 8 SCC 77 and Mahindra & Mahindra Financial Servies Ltd. vs. Rajiv Dubey (2009) 1 SCC 706 . 8. I have perused the materials on record. From perusal of the complaint petition, I find that enough materials are on record to proceed with the present prosecution and atleast a prima facie offence is made out and the complaint definitely discloses commission of cognizable offences as against the petitioners herein. The contents of the complaint petition cannot be said to be purely depicting a dispute of civil nature and on the contrary, the same also shows that the allegations of outraging modesty of a woman, theft of gold ornaments etc. have also been leveled, to which, the Court cannot shut its eyes. 9. The contents of the complaint petition cannot be said to be purely depicting a dispute of civil nature and on the contrary, the same also shows that the allegations of outraging modesty of a woman, theft of gold ornaments etc. have also been leveled, to which, the Court cannot shut its eyes. 9. It may further be pointed out that the police has investigated the matter and submitted charge sheet against the petitioners herein and one another under Sections 447, 323, 341, 354, 379 of Indian Penal Code, hence even the police upon investigation has found commission of a cognizable offence. 10. The learned Counsel for the petitioners has relied upon Bhajan Lal case (supra) to contend that the present case falls within sub para (7) of paragraph no. 102 inasmuch as the present criminal proceeding is manifestly attended with malafide. The learned counsel for the petitioners has also referred to the case reported in Baijnath Jha (supra) and Mahindra & Mahindra Financial Services Ltd. (supra) to contend that the aforesaid principles laid down in Bhajan Lal case (supra) are applicable in the present case, hence the criminal prosecution initiated against the petitioners herein is liable to be quashed. 11. First of all, I may consider the second and third cases referred to by the learned counsel for the petitioners. The said two cases are distinguishable in the facts and circumstances of the present case inasmuch as in the said cases, the criminal prosecution, sought to be quashed, had been launched against the petitioners of that case in a malafide manner by the informant/ complainant of the said cases upon cases having been lodged against the informant/ complainant by the petitioners of the aforesaid cases however, this is not the situation in the present case. 12. Now, coming to the case of Bhajan Lal (supra) referred to by the learned counsel for the petitioners, I find that the same is also of no help to the petitioners and in fact the same only goes to buttress the position of the opposite party no.2 which finds support from paragraph no. 102 of the Bhajan Lal case (supra), a bare reading whereof, would show that the present case is not a case where this Court should exercise inherent powers under Section 482 of the Code of Criminal Procedure to quash the criminal proceedings. It would be useful to quote paragraph no. 102 of the Bhajan Lal case (supra), a bare reading whereof, would show that the present case is not a case where this Court should exercise inherent powers under Section 482 of the Code of Criminal Procedure to quash the criminal proceedings. It would be useful to quote paragraph no. 102 of the Bhajan Lal case (supra) which is quoted herein below : In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Articles 226 of the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to given an exhaustive list of myriad kinds of cases wherein such power should be exercised. (1) Where the allegations made in the first information report or the comlaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused. (2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code Except under an order of a Magistrate within the purview of Section 155(2) of the Code. (3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. (4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code. (4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code. (5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. (6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party. (7) Where a criminal proceeding is manifestly attended with malafide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge. 13. Another aspect of the matter is that charges have already been framed in the present case by the learned trial court by an order dated 03.08.2015 and the petitioners herein vide I.A. no. 1714 of 2017 have not only belatedly challenged the same by filing the said interlocutory application as recent as on 08.08.2017 but have also not urged any ground much less cogent ground to assail the said order dated 03.08.2015. 14. On consideration of the materials on record, I do not find that the present prosecution has been launched in a malafide manner by the opposite party no. 2 and further, a bare reading of the complaint petition/ FIR definitely constitute a cognizable offence as against the petitioners herein. Since the police, after investigation has already filed a chargesheet and cognizance has been taken by the learned Chief Judicial Magistrate, Patna and now, charges have also been framed against the petitioners herein, it would be expedient that the trial is expedited. 15. For the reasons stated hereinabove, I do not find any merit in the present case and the same is dismissed. However, the learned trial court is directed to complete the trial, preferably within a period of 06 months from today. 16. There shall be no order as to costs.