IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.11958 of 2007 1. TARACHAND AGARWAL ALIAS TARACHAND, SON OF LATE RAMESHWAR AGARWAL. 2. GOPAL KUMAR AGARWAL. 3. JAGDISH CHAND ALIAS JAGDISH CHAND AGARWAL. BOTH SONS OF TARACHAND AGARWAL. ALL RESIDENTS OF THAKURGANJ, P.S. THAKURGANJ, DISTRICT-KISHANGANJ. ...…………………………………………………………….PETITIONERS. Versus 1. THE STATE OF BIHAR. 2. RIYAZ AHMAD, SON OF LATE ZAHIRUDDIN, RESIDENT OF BHELAGURI, P.S. SUKHANI, DISTRICT-KISHANGANJ. ………………………………………………OPPOSITE PARTIES. ----------- For the Petitioners : Ms. Y.V. Giri, Sr. Advocate and Raju Giri, Advocate. For the State : Mr. Jharkhandi Upadhyay, A.P.P. For O.P. No.2 : M/s.Vindhyachal Singh, Abhishek Prasad Kumar and Ashwini Kumar Upadhyay, Advocates. ------------------ O R D E R Three of the Four F.I.R. named accused of Thakurganj (Sukhani) P.S. Case No.96 of 1998 have filed this application for quashing of the entire criminal proceedings including the order dated 21.12.2006 passed therein by the learned Chief Judicial Magistrate, Kishanganj, whereunder he has taken cognizance against the petitioners under Sections 406 and 420 I.P.C. One Riyaz Ahmad, impleaded herein as O.P. No.2, filed a Complaint Case No.758 of 1998 for alleged commission of offences under Sections 420, 295-A, 384, 406, 153, 153-A and other allied Sections of the Penal Code at the hands of the accused named therein on 6.8.2008 before the learned Chief Judicial Magistrate, Kishanganj - 2 - which was transmitted to the concerned police station under Section 156(3) Cr.P.C. which formed the basis for registration of the aforesaid police case. According to the complainant/informant the villagers of Bhelaguri had donated their lands in the name of “Bharat Yatra Kendra” to Ex-Prime Minister, Sri Chandra Shekhar Jee and later on the petitioners got those lands registered in their names and developed a tea garden over it and thus had cheated the villagers. It is further alleged that on 6.9.1998 when the villagers of the informant went to the Kabristan for Milad they found that the accused persons had planted tea saplings in the Kabristan and when a protest was made therefor the petitioners allegedly assaulted the informant and hurt their religious feelings. It is also alleged that one Ram Jatan Singh took away the wrist watch at the point of a revolver and accused Jagdish Chand took away a packet of Agarbatti and Rs.550/- from the pocket of the complainant/informant. It has been submitted on behalf of the petitioners that the instant case has been filed by the informant in retaliation to the earlier Complaint Case No.700 of 1998 filed by Jagdish Chand, petitioner no.3 herein, on 22.7.1998 against the informant/complainant and others by giving the date of alleged occurrence as 6.8.1998. It is submitted that in Complaint Case No.700 of 1998 the allegation was that the informant alongwith Md. Taslimuddin and others were trying to oust the petitioners from their tea garden for which they had resorted to physical assault and that cognizance had been taken in the - 3 - said complaint case against the informant of the present case and others under Sections 109, 384, 327, 328, 120-B, 379/34 and other allied Sections of the Penal Code on 22.2.1999. It is further submitted that a thorough enquiry regarding the land of the petitioners was made by the District Authorities who concluded that in the year 1993 the petitioners vide several registered sale deeds had purchased about 56 acres 31 decimals of lands and had developed tea garden on 22 acres 39 decimals of those lands and the remaining lands was left parti. It was also found that the tea garden was not located on the Kabristan and there was a Kabar which had been fenced by the petitioners and that all these facts were available in the report dated 20.12.1999 of the Anchal Amin, Thakurganj submitted to the Circle Officer, Thakurganj which was later on forwarded to the Officer Incharge, Sukhani P.S. by the Circle Officer vide Memo No.13 dated 6.1.2000. On the aforesaid facts, it was submitted on behalf of the petitioners that they were in peaceful possession of their lands which had been acquired through registered sale deed from the villagers and that the lands do not belong to the “Bharat Yatra Kendra”. It was also sought to be pointed out that none of the persons from whom the land had been purchased by the petitioners had filed any case against the petitioners and the complainant/informant of the instant case being a hench man of Taslimuddin, a political rival of petitioner no.3 and a powerful leader of the Rashtriya Janta Dal from Kishanganj and a rival of petitioner no.2 who at the relevant time was a member of the Legislative Assembly of Samajwadi Party had filed the false and - 4 - concocted case. It was also submitted that the complainant alongwith Md. Taslimuddin were trying to oust the petitioners from the lands in question and were posing threat to the lives of the petitioners and on a petition being filed by the petitioners a police force with a Magistrate was deputed from 1.8.1999 to 13.8.1998 at the place. The falsity of the prosecution case, it is submitted, would be apparent and evident from the facts that the date of occurrence of the instant case is 6.8.1998 when the Magistrate with police force was deputed on the disputed lands and it is difficult to reconcile with the fact that the alleged occurrence had taken place within the knowledge of the Magistrate and the police contingent. It has also been submitted that later on the lands of the petitioners were measured by the Anchal Amin and the reports in that regard was submitted by him to the DCLR, Kishanganj in the year 2001 and in the year 2003 and in both these reports, it has been submitted that there is no land of “Bharat Yatra Kendra” nor is any Government land demarcated as Kabristan and that the lands were legally purchased by the petitioners and they are living in peaceful possession over the same. The reports dated 13.6.2001 and 13.10.2003 have been appended as Annexures-6 and 6A respectively to this application. It has further been submitted that the learned Chief Judicial Magistrate while taking cognizance has relied upon the supervision note of the Superintendent of Police, Kishanganj who reported that till date prima facie case under Sections 406 and 420 I.P.C. was made out against the petitioners and vide Memo dated 6.6.1999 he also directed - 5 - for measurement of the lands and to ascertain the actual area legally in possession of the petitioners. It was further submitted that on measurement of the lands in question the petitioners were found in legal possession over the same which would be apparent from paragraphs 310, 311, 314 and 315 of the case diary which revealed that the lands in question were sold to the petitioners vide legally executed sale deed and the same had no concern with the donation being made to the “Bharat Yatra Kendra”. It has also been submitted that the Deputy Superintendent of Police on the directions of the Superintendent of Police had submitted a supervision report on 25.12.2004 in which he had observed that the lands in question were legally purchased by the petitioners and no case is made out either under Section 420 or 420 I.P.C. and in accordance therewith he had directed for submissions of final report holding the case to be untrue against the petitioners. On the aforesaid premise, it has been submitted on behalf of the petitioners that the order of the learned Chief Judicial Magistrate apart from being illegal was not based on correct facts and in the impugned order he had merely discussed the supervision note and the Superintendent of Police as contained in Memo dated 6.6.1999 but failed to take into consideration the subsequent findings arrived at by the measurement of the lands in question and the report of the Deputy Superintendent of Police. It has also been submitted that the learned Magistrate while taking cognizance had merely placed reliance on certain paragraphs of the case diary which were the statements of the - 6 - henchmen of Md. Taslimuddin and a party alongwith the informant to the conspiracy against the petitioners and did not consider the subsequent measurement reports of the Anchal Amin and inquiry report of the Deputy Superintendent of Police. Although O.P.No.2 ,the informant has put in an appearance by filing a vakalatnama, no counter affidavit or show cause has been filed on his behalf and only oral submissions have been advanced in trying to justify the impugned order. Admittedly, the bone of contention appears to be the possession of the respective parties over the lands in dispute. The allegation of the informant is that the petitioners had forcibly occupied the lands meant for Kabristan and had planted tea saplings over the same and when protest was raised he was assaulted by the petitioners and his religious feelings were hurt. The complaint case of the informant appears to have been filed on 7.8.1998 for the alleged occurrence taking place in the afternoon of 6.8.1998 but prior thereto a Complaint Case No.700 of 1998 by the petitioner, Jagidsh Chand had been filed against the informant and others on 22.7.1998 alleging commission of offences under Sections 379, 447, 327, 328, 120-B and other allied Sections of the Penal Code in between 1.30 P.M. and 4.30 P.M. on 21.7.1998 on the allegation that on the orders of Md. Taslimuddin and others the accused persons assaulted the guards of the tea garden of the petitioners and had uprooted more than 100 tea plants, damaged the property valued at Rs.3500/- kept there for irrigation purposes and had forcibly fixed a sign board of “Bharat - 7 - Yatra Kendra” at the gate of the tea garden and a sum of Rs.5,00,000/- was demanded as payment by Md. Taslimuddin from petitioner no.1 herein who was the father of the complainant of that case. Apparently, the instant F.I.R. at the instance of O.P. No.2 appears to be a counter blast to the complaint case filed by petitioner no.3 and even otherwise the entire allegation hinges over possession over the lands in dispute. It also appears that the learned court below while taking cognizance had not perused the entire case diary including the measurement reports of the Anchal Amin and the enquiry report of Deputy Superintendent of Police which belies the case of O.P. No.2 and to the contrary has merely placed reliance on the earlier statements of the witnesses examined under Section 161 Cr.P.C. which as per the submissions of the learned counsel for the petitioners are the statements of the henchmen of Md. Taslimuddin and the supervision note of the S.P. Kishanganj notwithstanding the fact that the Apex Court as also this Court in a catena of decisions have deprecated the action of the Subordinate Courts to place reliance on supervision notes. Even otherwise, since the alleged dispute is in respect of possession over the lands in dispute the remedy therefor lies in seeking relief from a competent court of civil jurisdiction as the case from the circumstances appears to be of a civil nature. In view of the submissions made above, I am of the opinion that the prosecution of the petitioners, in the facts and the circumstances of the case wherein a civil cause of action has been - 8 - given a cloak of criminal trappings is an abuse of the process of the court which cannot be sustained in law. In the result, the application is allowed and the impugned order, so far as the petitioners are concerned, is hereby quashed. (Abhijit Sinha,J) Patna High Court, Patna. Dated: The 24th of June, 2009. Pradeep Srivastava/A.F.R.