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2018 DIGILAW 57 (MEG)

Anima Nag v. Sukumar Dey

2018-09-06

MOHAMMAD YAQOOB MIR

body2018
JUDGMENT : Mohammad Yaqoob Mir, J. 1. Instant petition under Section 482 Cr.P.C. 1973 has been filed for quashing the C.R. Case No. 579 (S) of 2017 pending in the Court of the learned Judicial Magistrate, First Class, Shillong. 2. The perusal of the complaint reveals that a plot of land measuring 4,623 sq. ft. covered by old Patta No. Nil dated 09.01.1961 and renewal Patta No. 188 of 1980 dated 14.11.1980 issued by the Syiem of Mylliem in Durbar, Mawkhar, Shillong stood in the name of Sudarshan Chandra Dey (deceased). The said deceased has left behind four issues, 2 sons and 2 daughters. The landed property aforesaid was to be mutated in favour of the respondent (Complainant) and his brother. It is alleged that the petitioner (sister) had dishonestly, fraudulently and illegally approached the Syiem of Mylliem in Durbar, Mawkhar, Shillong for issue of a joint Patta in her name, in the name of the Complainant and sister Smt. Maya Naug omitting the name of another brother Shri Samarendra Dey. It is also alleged that the petitioner (accused) without informing and taking the consent of the Complainant (respondent), on obtaining Patta has caused a wrongful loss to the Complainant. It is further stated in the Complaint that in accordance with law, inheritance of land and property of the deceased was to be divided Serial No. 04 Regular List amongst the legal heirs in equal shares. The married daughters are excluded from inheritance. It is further stated that the respondent (Complainant) vide his letter dated 14.06.2017 has informed the Syiem of Mylliem, Mawkhar, Shillong for cancellation of the Patta. 3. During the course of arguments, it was divulged by both the learned counsel for the parties that the petitioner has filed a suit for partition which is pending before the Court of Assistant to the Deputy Commissioner wherein, all four i.e., two brothers and two sisters are the parties. In addition thereto, the Complainant (respondent) has also taken up the matter with the Syiem of Mylliem for cancellation of the Patta, which is pending before the Syiem of Mylliem, Mawkhar, Shillong. In addition thereto, the Complainant (respondent) has also taken up the matter with the Syiem of Mylliem for cancellation of the Patta, which is pending before the Syiem of Mylliem, Mawkhar, Shillong. The dispute initially appears to be of civil nature i.e., two brothers and two sisters have a dispute regarding inheritance, the petitioner (sister of the respondent) has claimed share from the landed property left behind by her father, whether she is entitled to the same or not has to be decided by the Civil Court where the suit is already pending whether the Patta has been validly issued or not is again under consideration before the Syiem of Mylliem, Mawkhar, Shillong, the criminality so as to prosecute the petitioner is not forthcoming. 4. The Complaint has been instituted before the Court of Chief Judicial Magistrate, Shillong, who has assigned the same to the learned Magistrate, First Class, Shillong. Learned Magistrate, Shillong has dealt with the matter in a very casual fashion; he has not adhered to the procedure prescribed in Chapter XV and XVI of Cr.P.C. which fact is exposed by order dated 07.07.2017, perusal of which suggests that the Magistrate has not even precisely anything on how the prima facie case for issue of process, he has simply said peruse the statement of the complainant. Complainant to take steps to issue summon to the accused. Section 200 Cr.P.C., 1973 envisaged that when a Magistrate is taking cognizance of an offence on complaint shall examine upon oath the complainant and the witnesses present, the substance of such examination has to be reduced into writing and shall be signed by the complainant and the witnesses, and also by the Magistrate. The order impugned recorded on 07.07.2017 nowhere suggests that the statement of the Complainant was recorded nor it suggests any witness was produced and examined. 5. Under Section 204 Cr.P.C., 1973 the Magistrate has to record the opinion to the effect that there are sufficient grounds for proceedings, only then he has to issue summon and such summon has to be accompanied by a copy of the Complaint, the procedure as prescribed has been observed in breach. 5. Under Section 204 Cr.P.C., 1973 the Magistrate has to record the opinion to the effect that there are sufficient grounds for proceedings, only then he has to issue summon and such summon has to be accompanied by a copy of the Complaint, the procedure as prescribed has been observed in breach. The matter could be remitted back to the learned Judicial Magistrate for proceeding afresh, but same is not required because the ingredients of Section 415 are not made out as already concluded, the dispute is purely of civil nature linked with inheritance and therefore, to allow continuation of the criminal proceedings will be abuse of the process of law. 6. It is settled that the power exercisable under Section 482 Cr.P.C., 1973 has to be in unexceptional cases, instant case is exceptional warranting indulgence, therefore, petition is allowed, criminal proceedings pending before the learned Magistrate, First Class, Shillong shall stand quashed. It is made clear that quashing of the criminal proceedings shall by no means be treated to be an expression of opinion upon merit and rights of the parties to be adjudicated upon in the partition suit as well as in the proceedings stated to be pending before the Syiem of Mylliem, Mawkhar, Shillong. 7. Petition succeeds, shall stand disposed of as above. 8. Copy of the order be sent to the learned Judicial Magistrate for information.