CRIMINAL MISCELLANEOUS No.5304 OF 2000 ---- In the matter of applications under Section 482 of the Code of Criminal Procedure,1973. ---- 1. PRABHU MANDAL S/O TUNAI MANDAL, RESIDENT OF VILLAGE SATKODARIYA, P.S. RAGHOPUR, DISTT- SUPAUL. 2. ANAND MANDAL S/O SAMPAT LAL MANDAL, RESIDENT OF VILLAGE ACHALPUR, P.S. RAGHOPUR, DISTRICT- SUPAUL. ... ... PETITIONERS. ---- Versus 1. THE STATE OF BIHAR 2. SUBODH PANDIT S/O LATE MAHABIR PANDIT, RESIDENT OF VILLAGE SATKODARIA, P.S. RAGHOPUR, DISTT- SUPAUL. ... ... OPPOSITE PARTIES. WITH Cr.Misc. No.13521 OF 2000 ---- 1. RADHEY SHYAM PANDIT S/O LATE RAMADHEEN PANDIT 2. RAJENDRA PANDIT S/O LATE RAMADHEEN PANDIT BOTH ARE RESIDENTS OF VILLAGE SATKODARIYA, P.S. RAGHOPUR, DISTRICT SUPAUL. ... ... PETITIONERS. Versus 1. THE STATE OF BIHAR 2. SUBODH PANDIT S/O LATE MAHABIR PANDIT, RESIDENT OF VILLAGE SATKODARIYA, P.S. RAGHOPUR, DISTRICT SUPAUL. ... ... OPPOSITE PARTIES. ---- For the Petitioners : M/S Pramod Mishra, Adv. Prafull Chandra Thakur, Adv. For the State : Mrs.Indu Bala Pandey, A.P.P. ---- P R E S E N T THE HON'BLE MR. JUSTICE RAKESH KUMAR ---- Rakesh Kumar,J In both cases, order of cognizance dated 17.11.1999 passed by Sub divisional Judicial Magistrate, Birpur in Complaint Case No.375 C of 1999 is under challenge. However, in Cr. Misc. No.5304 of 2000, the petitioner no.2 against the order of cognizance had preferred a revision vide 2 Cr. Revision No.358 of 1999(S), which was rejected on 25.1.2000. In ordinary course, I do not entertain a petition filed in the garb of a petition under Section 482 of the Code of Criminal Procedure even after rejection of criminal revision petition. However, in view of peculiar facts and circumstances of the present case, this Court has inclined to entertain the present petition. 2. In Cr. Misc. No.5304 of 2000, petitioners had prayed for quashing of order dated 17.11.1999 passed by S.D.J.M., Birpur in Complaint Case No.375C of 1999. By the said order, the learned Magistrate has taken cognizance of offence under sections 420, 467, 468, 120 and 471 of the Indian Penal Code. Same prayer has been made in Cr. Misc. No.13521 of 2000. Petitioner no.2, in Cr. Misc. No.5304 of 2000, challenged the order of cognizance before the learned Sessions Judge by filing criminal revision vide Cr. Revision No.358 of 1999(S), which was rejected on 25.1.2000. Meaning thereby that the learned Sessions Judge has approved the order of cognizance. 3. In first case i.e. Cr. Misc. No.5304 of 2000, two petitioners have been alleged as witnesses to a forged sale deed executed by two petitioners in Cr. Misc. No.13521 of 2000. Two 3 petitioners, in Cr. Misc. No.13521 of 2000, are none else, but nephew of the complainant, who is opposite party no.2. 4. The opposite party no.2 had filed a complaint case vide Complaint Case No.375C of 1999 alleging therein that accused Radhey Shyam Pandit and Rajendra Pandit, who were his nephew persuaded the complainant to execute a deed of gift in favour of the wife of the complainant, who due to some dispute, had left the house of her husband and was, at the relevant time, residing separately. The complainant alleged that under the impression that he was executing a deed of gift in favour of his wife, he executed the same. The said deed was executed and registered on 30.10.1998. Subsequently, the complainant noticed that he was cheated by the two petitioners of Cr. Misc. No.13521 of 2000. It was alleged that in the said deed, two petitioners of Cr. Misc. No.5304 of 2000 were witnesses. Accordingly, all the four petitioners were made accused in the complaint case. After filing the complaint petition, the complainant was examined on S.A. and some enquiry witnesses supported the allegation of the complainant and after completing the enquiry by an order dated 17.11.1999, the learned Magistrate took 4 cognizance of the offences as mentioned above. 5. Aggrieved with the order of cognizance, petitioner no.2,namely, Anand Mandal in Cr. Misc. No.5304 of 2000 filed a criminal revision, which was rejected on 25.1.2000 vide Cr. Revision No.358 of 1999(S) by the learned Sessions Judge, Saharsa. Thereafter, both the petitions were filed before this Court and on 4.5.2000, Cr. Misc. No.5304 of 2000 was admitted and while admitting, this Court directed that further proceedings against the petitioners be stayed till further orders. Cr. Misc. No.13521 of 2000 was admitted on 3.5.2001 and in this case also stay order was granted and is still continuing. 6. While challenging the order of cognizance as well as revisional order, Shri Pramod Mishra, learned counsel appearing on behalf of the petitioners, submits that the present complaint petition was maliciously got filed as per the instance of the wife of the complainant, who had already deserted the complainant as well as her son-in-law. Learned counsel for the petitioners has referred to Annexure-2 to the petition i.e. a petition filed under Section 125 of the Code of Criminal Procedure by the wife of the complainant. The said complaint petition was filed on 3.11.1998. 5 Learned counsel submits that from the content of the complaint petition filed by the wife of the complainant, it is evident that the wife of complainant was already residing separately and thereafter, for her maintenance, she had filed a case vide Case No.33 of 1998 in the court of Sub Divisional Judicial Magistrate, Birpur at Supaul. Learned counsel for the petitioners has referred to Annexure-3 to the petition, which is an informatory petition dated 29.10.1998. While placing Annexure-3 to the petition, Shri Mishra submits that the complainant of the present case was apprehensive that his wife and son-in-law were adamant to grab the properties of the complainant. It was further submitted that on the basis of Annexure-3 that wife had deserted the complainant long back, the complainant was apprehensive that his wife and son- in-law may harm him and as such said petition was filed. It was further argued that apprehending that the complainant may be dispossessed from his properties, the complainant, on his own will, executed a deed of gift in favour of two petitioners of Cr. Misc. No.13521 of 2000 i.e. Radhey Shyam Pandit and Rajendra Pandit and at the time of execution, two petitioners of Cr. Misc. No.5304 of 2000 i.e. Prabhu Mandal and Anand Mandal 6 witnessed the deed. It was further submitted that since the wife of the complainant had deserted him long back and the complainant was an old man, accused Radhey Shyam Pandit and Rajendra Pandit were looking after him and they were rendering each and every assistance to the complainant in his day to day work and thereafter, the deed of gift was executed by the complainant before the Registrar. Accordingly, it has been argued that in the background of the case, the present complaint petition appears to be malicious prosecution and complaint petition was filed in a well design manner as per the instance of the complainant’s wife, who had already left the complainant long back. It was further submitted by Shri Mishra that had there been any fraud committed by the petitioners in respect of getting a deed of gift executed in their favour, the complainant would have filed an appropriate case for cancellation of the said deed, but till date, the complainant had not taken any step for canceling the said deed. 7. In this case, despite service of notice and appearance filed on behalf of opposite party no.2, at the time of hearing, none has come forward to appear on behalf of opposite party no.2. However, Smt. Indu Bala Pandey appears on behalf of 7 the State and she opposes the prayer of the petitioners. It was submitted that this Court may not interfere with the order of cognizance and all the points, which have been raised by the learned counsel for the petitioners, can be looked into by the concerned court at appropriate stage. 8. Besides hearing learned counsel for the petitioners and State, I have also perused the materials available on record. It is true that while exercising power under Section 482 of the Code of Criminal Procedure, this Court should refrain from interfering with the order of cognizance, but in the facts and circumstances of the present case particularly in view of the fact that criminal proceeding in the present case was directed to remain stayed by this Court long back in the year 2000 and stay has continued till date and even till date, no action was taken by the complainant for getting the said deed cancelled, the court is satisfied that it is a fit case in which inherent power of this Court can be exercised even at the stage of cognizance and, accordingly, the order of cognizance dated 17.11.1999 passed by S.D.J.M., Birpur is hereby set aside and also order dated 25.1.2000 passed by the learned Sessions Judge, Saharsa in Cr. Revision No.358 of 1999(S), 8 which was preferred by petitioner no.2 in Cr. Misc. No.5304 of 2000 is quashed. 9. Accordingly, both the petitions are allowed. ( Rakesh Kumar,J.) PATNA HIGH COURT Dated 15.7.2010 N.A.F.R./N.H.