CRIMINAL MISCELLANEOUS No.12498 OF 2003 -------- In the matter of an application under Section 482 of the Code of Criminal Procedure ---------- 1. SARSWATI DEVI, W/O DAYANAND BHAGAT 2. DAYANAND BHAGAT, S/O RADHA BHAGAT BOTH RESIDENT OF VILLAGE – RAKBA, P.S. – BHORE, DISTRICT – GOPALGANJ ----- PETITIONER VERSUS 1. STATE OF BIHAR 2. NAKCHHED BHAGAT, S/O SRI RAMJAS BHAGAT, RESIDENT OF VILLAGE – RANIPUR, P.S. – VIJAYEEPUR, DISTRICT – GOPALGANJ (BIHAR) -----------OPPOSITE PARTY ----------- For the Petitioner: Sri Naresh Chandra Verma, Advocate For the Opposite Party No. 2 : Sri Nityanand Mishra, Advocate Sri Atul Kumar Pandey, Advocate For the State: Sri A.M.P. Mehta, A.P.P. ----------- P R E S E N T THE HON'BLE MR. JUSTICE RAKESH KUMAR Rakesh Kumar, J. Two petitioners, while invoking inherent jurisdiction of this Court under Section 482 of the Code of Criminal Procedure, have prayed for quashing of an order dated 21.2.2003 passed by learned Judicial Magistrate 1st Class, Gopalganj in Trial No. 158 of 2003 arising out of Complaint Case No. 1094 of 1998 whereby the learned Magistrate disposed of the petition for discharge filed on behalf of the accused persons and fixed the case for framing of the charge. 2. Short fact of the case is that, Opposite Party No. 2 on 24.6.1998 filed a complaint in the Court of Chief Judicial Magistrate, Gopalganj vide Complaint Case 2 No. 1094 of 1998 arraying 7 persons including two petitioners as accused for commission of the offences under Sections 420, 406, 467 & 468 of the Indian Penal Code. It was disclosed in the complaint petition that Petitioner No. 2 was married with daughter (Petitioner No. 1) of one Gajadhar Bhagat who was not having any male child. He was having only two daughters. In his life time, Gajadhar Bhagat gifted his property to the son of both the petitioners, namely, Mahanth Bhagat by deed of gift dated 28.1.1985. At the time of execution of deed of gift, the son of both the petitioners was minor, and on his behalf her mother and father, both the petitioners, came in possession over the gifted properties. It was alleged by the complainant that in the year 1993 both the petitioners approached the complainant in presence of witnesses with a proposal to sell 4 Kathas of land from the gifted land. Since at the relevant time the son of the petitioners namely, Mahanth Bhagat (accused no. 3) was minor being his guardian, the said land was sold by petitioners on consideration money of Rs. 14,000/- through registered deed. The said sale deed was executed by Petitioner No. 1 being the guardian of her minor son namely, Mahanth Bhagat and Petitioner No. 2 executed the deed as a witness. Thereafter, the complainant took the possession over the land in question and started to 3 cultivate the same. However, on 19.5.1998, both the petitioners and accused no. 6 Suresh Kumar Singh told the complainant that the said land was of accused Suresh Kumar Singh, in whose favour sale deed was executed and the complainant was prevented from cultivating the said land. On enquiry, the complainant came to know that, on 20.5.1998, the son of both the petitioners, namely, Mahanth Bhagat had transferred the land through registered sale deed in favour of one Suresh Kumar Singh, accused no. 6. On the basis of aforesaid allegation, the complaint was filed against both the petitioners, son of the petitioners, Suresh Kumar Singh and also witnesses. After conducting enquiry, the learned Magistrate took cognizance of the offence, and while the case reached to the stage of charge, discharge petition was filed by accused persons. However, by order dated 21.2.2003, no favourable order was passed in favour of the accused persons, and the learned Magistrate directed all the accused persons including petitioners to remain present for framing of the charge. 3. Aggrieved with the order dated 21.2.2003, whereby discharge petition filed by the petitioners was disposed of and direction was issued for framing of the charge, both the petitioners approached this court by filing the present petition. On 10.12.2003, notice was 4 directed to be issued to Opposite Party No. 2, and in the meantime, it was directed that further proceeding in court below shall remain stayed. On 31.8.2004 the case was admitted for hearing, and it was directed that during the pendency of the application the interim order passed earlier will remain operative .The stay order is still continuing. 4. Sri Naresh Chandra Verma, learned counsel for the petitioners submits that, from the facts and circumstances of the present case, it is evident that, the dispute was out and out a civil dispute, for which, criminal court may not be allowed to be abused. In support of his stand Sri Verma has relied on a Supreme Court judgment reported in 2009 (4) P.L.J.R. (SC) 26 (Dalip Kaur Vs Jagnar Singh). It was submitted by Sri Verma, that it cannot be considered as a case of cheating, or a case for preparing forged document. It was argued that, the complainant, in the fact and circumstances of the case, was entitled to approach a court of civil jurisdiction for declaring a subsequent sale deed as void, but instead of taking such step, the complainant has invoked the criminal jurisdiction of the Court by way of filing the present complaint petition. Accordingly, it was submitted that allowing the prosecution of the petitioners on such allegation will amount to allowing abuse of the 5 process of the Court and it has been prayed to quash the impugned order, as well as, the entire criminal proceeding in Complaint Case No. 1094 of 1998 / Tr. No. 158 of 2003. 5. Sri Nityanand Mishra, learned counsel appearing on behalf of Opposite Party No. 2 has vehemently opposed the prayer of the petitioner. In this case Opposite Party No. 2 has filed counter affidavit. It was submitted by learned counsel appearing on behalf of the Opposite Party No. 2 that all the accused persons conspiring with each other, after knowing well the fact that the land in question was already transferred to the complainant by way of registered sale deed in the year 1993 after taking consideration money of Rs. 14,000/-, the accused persons including both the petitioners connived with each other and got a sale deed executed in favour of accused no. 6 by accused no. 3, who is none else but the minor son of both the petitioners. While referring to Annexure – A series to the counter affidavit filed on behalf of Opposite Party No. 2, Sri Mishra, learned counsel for the Opposite Party No. 2 submits that, even on the date of execution of second sale deed in the year 1998, the son of both the petitioners namely, Mahanth Bhagat was minor. It was further submitted that in the complaint petition itself it has been 6 categorically mentioned that both the petitioners had told the complainant in the year 1998 that the said land has already been transferred to accused no. 6 and they also tried to prevent the complainant from cultivating the land. It was further submitted that, those facts can well be examined during the trial and not at this stage by this Court while exercising its inherent jurisdiction under Section 482 of the Code of Criminal Procedure which is required to be exercised in exceptional cases. Accordingly, it has been prayed to reject the petition. 6. Sri A.M.P. Mehta, learned Additional Public Prosecutor has appeared on behalf of the State. He has supported the stand taken by Sri Mishra, learned counsel for the Opposite Party No. 2. 7. Besides hearing learned counsel for the parties I have also perused the materials available on record. In this case while filing the present petition initially the petitioners had not bothered to bring on record copy of the complaint petition. However, at subsequent stage the petitioner by way of filing supplementary affidavit in the year 2004 has brought on record certified copy of the complaint petition as Annexure -1 to the supplementary affidavit. After going through the contents of the complaint petition i.e. Annexure -1 to the supplementary affidavit, the Court is 7 of the opinion that the learned Magistrate has rightly not entertained the petition for discharge filed by the petitioner and directed the accused persons to remain present at the time of framing of charge. So far as Dalip Kaur’s case (supra) is concerned, the court is of the opinion, that in the facts and circumstances of the present case, the petitioner may not get any help from the said judgment. In the present case from the contents of the complaint petition itself, it is evident that in the year 1993 the Petitioner No. 1 being guardian of her minor son had executed a deed of sale in favour of the complainant after taking consideration money and title and possession was also handed over to the complainant. Thereafter, the complainant started to cultivate the land. The land which was sold by the petitioner no. 1 was virtually gifted by her father through a deed of gift in favour of his grandson i.e. son of the petitioners. The Petitioner No. 1 had transferred the said land through a sale deed in the year 1993 in favour of complainant, and her husband, who is Petitioner No. 2 in the present case, had become witness to the said deed which was executed in the year 1993. It has also been asserted specifically in the complaint petition that in the year 1998 after a subsequent sale deed was executed in favour of accused no. 6 by accused no. 3 (son of both the petitioners), both the petitioners 8 had told the complainant not to cultivate the land since the said land was transferred to accused no. 6. This fact is sufficient to draw an inference that both the petitioners had actively participated in preparation of subsequent deed in the year 1998 whereas Petitioner No. 1 had herself executed a sale deed in respect of same land in favour of complainant over which the Petitioner No. 2 had executed as a witness. This shows that prima facie case was made out against both the petitioners. However, I am of the opinion that this court is not required to give any positive opinion regarding commission of offences by either of the accused persons due to the reason that the same is required to be examined by the court below during the trial. 8. In view of the facts and circumstances of the present case the court is of the opinion that it is not a fit case for interference with the impugned order i.e. order dated 21.2.2003 passed by learned Judicial Magistrate 1st Class, Gopalganj in Trial No. 158 of 2003 (arising out of Complaint Case No. 1094 of 1998). Accordingly, the petition stands rejected. 9. In view of rejection of the present petition interim order of stay stands automatically vacated. 10. Let a copy of this order be sent to the court below forthwith. 9 11. It is made clear that whatever observation has been recorded by this court, has been recorded only for the purposes of disposal of the present case and the learned court below may not be guided or prejudiced by this order while proceeding with the complaint case. Patna High Court, Patna Dated 4th of February, 2011 Praful/ N.A.F.R. ( Rakesh Kumar, J.)