Criminal Miscellaneous No.28714 OF 1998 In the matter of an application under Section 482 of the Code of Criminal Procedure --------- 1. Md. Rahimuddin S/O Md. Kalimuddin 2. Md.Najiruddin S/O Shadique 3. Md. Afaque S/O Md. Alam All residents of Mohalla- Ghughari Tanr, P.S. Civil Line, District-Gaya ------- Petitioners Versus 1. THE STATE OF BIHAR 2. Sheo Kumar Sinha S/O Maheshwari Prasad,resident of Mohalla- Ghughari Tanr, P.S. Civil Line, District- Gaya ---- Opp.Parties. ---------- For the petitioners: Mr. Nand Kishore Pd.Sinha,Adv. For the State : Mr. Chandrasen Prasad Sihgh,A.P.P --------- P R E S E N T THE HON'BLE SHRI JUSTICE RAKESH KUMAR Rakesh Kumar, J The three petitioners ,aggrieved with the order dated 25.9.1998 passed by the learned Judicial Magistrate, 1st Class, Gaya in Complaint Case No.C-595 of 1990/ Tr. No. 328 of 1998, have approached this Court, while invoking its inherent jurisdiction under Section 482 of the Code of Criminal Procedure. By the said order the learned Magistrate had rejected the petition filed on behalf of the petitioners under Section 245 of the Code of Criminal Procedure for their discharge. 2. Mr. Nand Kishore Prasad Sinha, learned counsel for the petitioners challenging the order of rejection of discharge petition submits that the order was passed contrary to the materials available on the record of the case. He submits that the land in 2 question, for which allegation was made that by making forgery a subsequent deed was prepared, was actually the land of one Md. Aziz, from whom petitioner no.1 had purchased the land and petitioner nos.2 and 3 are identifiers to the said deed. He further submits that the matter was also inquired by the Survey Settlement Officer and petitioner no.1 was found in peaceful possession over the land in question during the local inspection. On these grounds the learned counsel for the petitioners submits that allowing the prosecution on the said complaint to proceed further will amount to abuse of the process of the court and, as such, he has prayed for quashing of the order dated 25.9.1998. 3. Learned counsel for the petitioners has referred to Annexures 3, 4 and 5 to the petition. Annexures 3 and 4 are orders passed by the Survey Settlement Officer. Annexures 3 and 4 were passed after the filing of the complaint petition. Learned counsel for the petitioners placed Annexure-6 to the petition at the time of arguments and submits that it is the Raiyati Khatiyan , which shows that land in question was in the name of petitioner no.1. He further submits that the witnesses, who were examined before the charge, were hearsay witnesses and this stand was taken by the petitioners in their petition, which was filed under Section 245 of the Code of Criminal Procedure. Learned counsel for the petitioners submits that despite specific stand taken in the petition for discharge as well as evidence of witnesses ,who were completely hearsay witnesses, the learned Magistrate without examining those evidences, in a 3 mechanical manner, has passed the impugned order. 4. Learned Counsel for the State, while opposing the prayer of the petitioners, submits that the documents, which have been annexed by the petitioners along with the present petition are required to be looked into during the trial, particularly at the defence stage. He further submits that those documents may not be looked into by this Court, particularly while exercising power under Section 482 of the Code of Criminal Procedure. He further submits that the contents of the complaint petition itself gives a clear-cut picture for commission of offences as mentioned above. 5. I have also examined the materials available on the record as well as the impugned order. It is evident that in the present case immediately after the order of cognizance the petitioner had approached this Court vide Cr.Misc.No.11155 of 1991. However, when the petition was taken up for hearing at the time of admission, learned counsel for the petitioner sought leave of this Court to withdraw his petition with a liberty to raise all the points available to the petitioners at the time of framing of the charges. Leave was granted and, accordingly, vide order dated 19.8.1996 the petition was dismissed as withdrawn. 6. In view of the order dated 19.8.1996, whereby Cr.Misc.No.11155 of 1991 was dismissed as withdrawn with a liberty to raise all the points at the time of framing of the charges, the petitioners filed a detailed petition before the court below. I have also perused the discharge petition, which has been annexed as 4 Annexure-7 to the petition. On perusal of the impugned order, it appears that the learned Magistrate, while rejecting the discharge petition, had not dealt with the grounds taken by the petitioners in their discharge petition. It is true that while hearing a petition under Section 482 of the Code of Criminal Procedure, this Court may restrain itself from examining documents annexed with the petition, which have not been got proved, but at the same time in the peculiar facts and circumstances of a case, this Court is not divested with the power to look into such documents. In the present case, the specific stand was taken by the learned counsel for the petitioners that even before filing of the complaint petition, the complainant had filed an objection before the Superintendent of Survey in the year 1988 and, thereafter ,a proceeding was initiated vide Case No.391/88. In the said proceeding, local inspection was also conducted and during the said local inspection, petitioner no.1 was found to be in peaceful possession over the land in question. Subsequently Khatiyan was also prepared in the name of petitioner no.1. Besides merit of the case, the fact remains that the complaint was filed long back in the year 1990 and after rejection of discharge petition by order dated 25.9.1998 passed by the learned Judicial Magistrate, 1st Class, Gaya, the petitioners approached this Court and by the order dated 10.5.1999, this Court called for lower court records, which has already been received and kept on the record of this case. Subsequently, by the order dated 8.10.1999, this petition was admitted for hearing. While admitting the case, this Court had 5 directed that pending hearing of this application further proceeding in Complaint Case No.595 of 1990 pending in the court of Judicial Magistrate, Gaya, shall remain stayed and the stay is still continuing. 7. In view of the facts and circumstances mentioned herein above as well as keeping in view the fact that the proceeding is pending since long I am of the view that allowing prosecution of the petitioners in the present case before the learned Magistrate will amount to an abuse of the process of the court and, as such , in view of peculiar facts and circumstances of the case, the order dated 25.9.1998 rejecting the discharge petition stands quashed and also further proceeding in respect of the petitioners in complaint case no.C- 595 of 1990, Tr.No.328 of 1998 is hereby set aside . Petition stands allowed. Patna High Court,Patna Dated : the 31st March,2010 Nawal Kishore Singh/N.A.F.R (Rakesh Kumar,J)