Criminal Miscellaneous No.30258 OF 1999 In the matter of an application under Section 482 of the Code of Criminal Procedure ----------- 1. Bibi Farhana @ Farhana Masreen, wife of Md. Mohiuddin 2. Md. Mohiuddin, Son of Late Md. Bashiruddin 3. Choudhary Azeezul Hassan @ Azizul Hassan, Son of Late Choudhary Abid Hussain All residents of Choudhary Mahalla, P.S.& P.O and District-Katihar ----- Petitioners Versus 1. THE STATE OF BIHAR 2. Md. Usman Son of Ali Bux, resident of Village- Sharifganj, P.S. & P.O. and District- Katihar --- Opp.Parties. -------------- For the Petitioners: Mr. F.A.Khan, and Md. Sufiyan, Advocate For the State : Smt. Indu Bala Pandey, A.P.P. ------------ P R E S E N T THE HON'BLE MR. JUSTICE RAKESH KUMAR Rakesh Kumar, J. Three petitioners , while invoking inherent jurisdiction of this Court under Section 482 of the Code of Criminal Procedure, have prayed for quashing of the order dated 6.10.1999 passed by Shri S.N.Singh, Judicial Magistrate, 1st Class, Katihar, in G.R. Case No.803 of 1997 , arising out of Katihar P.S. Case No.186 of 1997. By the said order, the learned Magistrate has rejected the discharge petition filed on behalf of the petitioners. 2. Short fact of the case is that Opp.Party no.2, claiming himself to be Sikmi Raiyat with respect to Plot No. 664 measuring an area of 22 decimals of land, situate in village Devaria, Police Station & District- Katihar, filed a complaint vide Complaint Case No.357 of 1997 disclosing therein that the complainant for 2 the purposes of purchasing a piece of land had negotiated with the petitioners through their Amlas. The negotiation was settled for a consideration amount of Rs.18,000/- for total area of 10 Kathas of M.S. Plot Nos.662 and 665. In the complaint petition, description has been given that consideration money on the request of petitioner no.2 was handed over to one Md. Alauddin and thereafter Alauddin and Syed accounted the said amount and, thereafter handed over the said amount to petitioner no.1. Thereafter, petitioner nos.1 and 2 directed rest of the accused persons to hand over the possession of the land in question after getting the same measured and demarcated through Amin. On the next day,i.e. on 2.12.1996 accused nos.4 to 7 of the complaint petition ( not before this Court) went for getting the land measured and demarcated along with Amin and thereafter Opp.Party no.2 was given possession of the said land. After getting possession over the land in question, the complainant fenced the entire land and started cultivation. It was further disclosed that the complainant, thereafter time without number, approached the petitioners for getting the sale deed executed, but it was never executed. It was also disclosed in the complaint petition that when the accused persons did not execute the sale deed, the complainant filed petition on 3.1.1997 before the District Administration including the police of Katihar Police Station and thereafter the accused persons felt aggrieved and demolished the Tatti fencing of the petitioners and took away the tube-well pipe, installed there worth Rs.1000/-. The said action was taken by the petitioners, as 3 alleged in the complaint petition, with the help of Katihar Police. However, subsequently the petitioners themselves erected the Tatti fencing of the petitioners land. Opp.Party no.2 has further disclosed in the complaint petition that the petitioners had also falsely implicated the brother of Opp.Party no.2 and his nephew in a false case, in which he was arrested and after being released on bail , the complaint petition was filed by Opp.Party no.2 , which was subsequently referred to the police and accordingly a police case vide Katihar P.S. Case No.186 of 1997 was registered on 28.4.1997 for the offences under Sections 147, 447,406,420 and 379 of the Indian Penal Code. After investigating the case, chargesheet was submitted against the petitioners for the offences under Sections 147,447, 406 , 420 and 379 of the Indian Penal Code and thereafter the learned Chief Judicial Magistrate took cognizance of the offences as per the chargesheet. At the stage of charge , a petition was filed on behalf of the petitioners for their discharge and the learned Magistrate after hearing the learned counsel for the complainant and petitioners vide its order dated 6.10.1999 rejected the discharge petition. 3. Aggrieved with the order of rejection of discharge petition, i.e. order dated 6.10.1999, the petitioners approached this Court by filing the present petition .On 24.2.2000, while directing for issuance of notice to Opp.Party no.2, this Court had directed that pending notice further proceedings in the aforesaid case shall remain stayed. Despite service of notice to Opp.Party no.2, he did not prefer 4 to appear and, as such, on 25.7.2000 the case was admitted for hearing and it was directed that during the pendency of this application, interim order of stay passed by this Court on 24.2.2000 shall continue and the order of stay is still continuing. 4. In this case Vakalatnama was filed on behalf of Opp.Party no.2, however at the time of hearing none appeared on his behalf. 5. Sri F.A.Khan, learned counsel appearing on behalf of the petitioners, while challenging the order of rejection of discharge petition, i.e. 6.10.1999, has vehemently argued that on the basis of contents of the complaint petition itself, there is no ambiguity in coming to the conclusion that the present case can be categorized as a civil dispute, since no criminal offence is made out on perusal of complaint petition. While referring to the contents of complaint petition, i.e. part of the F.I.R., Mr. Khan submits that the complainant himself had accepted that after taking consideration money, the petitioners had already given possession of the land in question to the complainant. Only thing remains that the petitioners despite persuasion by the complainant did not execute the sale deed. According to Mr.Khan , for the purposes of getting the sale deed executed the complainant was having a remedy available under the Specific Relief Act and with a view to direct the petitioners to execute the sale deed proper course was to file a suit before the Competent Civil Court and not to file the present complaint before a criminal court. He submits that in absence of any material showing 5 commission of cognizable offence in the entire complaint petition, the police was not at all authorized to register an F.I.R., but in a perfunctory manner F.I.R. was lodged and in the same manner, the police submitted charge sheet. It was the turn of the learned Magistrate and the learned Magistrate also in the same perfunctory manner firstly took cognizance of offence and thereafter when discharge petition was filed, the same was also rejected without application of mind. 6. Learned counsel for the petitioners has emphasized that since the dispute was purely of civil nature, a criminal proceeding in the present case may not be allowed to proceed. It was also argued that it is the complainant’s case that he was made accused in a police case and thereafter he was taken into custody and only after being released on bail, the complaint petition was filed. According to Mr. Khan, this shows that the present complaint petition was filed maliciously. Accordingly, it has been argued that the impugned order and entire criminal proceeding against the petitioner is liable to be set aside firstly on the ground of absence of disclosure of any offence as well as on the ground of malicious prosecution. 7. Smt. Indu Bala Pandey, learned counsel appearing on behalf of the State has opposed the prayer of the petitioners. She submits that while rejecting the discharge petition, there is no requirement to assign any reason and in the facts and circumstances of the present case, the learned Magistrate has rightly 6 rejected the discharge petition. Accordingly Smt. Pandey has prayed for rejection of the present petition. 8. Besides hearing learned counsel for the parties, I have also perused the complaint petition and materials available on record. From the complaint petition, it is not in dispute that the complainant himself had accepted that after paying the consideration money, he had taken possession over the land and he was even in possession of the land till the date of filing of the complaint petition. In such a situation only on the ground of non- execution of the sale deed, it was not permissible for him to approach the criminal court. If there is already statutory remedy available to the petitioners , which requires invoking civil jurisdiction, certainly criminal proceeding should not be allowed to proceed that, too, in absence of disclosure of specific criminal offence. In the complaint petition itself, the complainant has disclosed that he was implicated in a false criminal case, in which he was arrested and after being released on bail in the said case, the present complaint petition was filed by Opp.Party no.2, which was subsequently referred to the police. Of course, while exercising power under Section 482 Cr.P.C., it is not required to examine all such materials and that too in absence of availability of entire records, but in the facts and circumstances of the present case, particularly the stand taken by the complainant that he has taken possession over the land coupled with the facts that the proceeding was kept pending before this Court for more than ten years for an 7 alleged offence, which had taken place long back in the year,1996, it would be appropriate to interfere with the impugned order and, accordingly, the facts and circumstances of the present case warrants exercise of inherent jurisdiction in favour of petitioners with a view to prevent abuse of the process of the court. 9. Accordingly, the order dated 6.10.1999 passed by Sri S.N.Singh, Judicial Magistrate, 1st Class, Katihar in G.R. Case No.803 of 1997, arising out of Katihar P.S. Case No.186 of 1997 and entire criminal proceeding so far as petitioners are concerned is hereby set aside and the petition stands allowed. Patna High Court, Patna Dated : the 24th June,2010 Nawal Kishore Singh/ N.A.F.R. ( Rakesh Kumar, J )