CRIMINAL MISCELLANEOUS No.12612 OF 2002 ---- In the matter of an application under Section 482 of the Code of Criminal Procedure,1973. ---- 1. NARAIN TANKORIA @ NARAIN PD. TANKORIA, SON OF LATE KANHAIYALAL TANKORIA 2. PAVAN KUMAR @ PAVAN KUMAR TANKORIA 3. DILIP TANKORIA, @ DILIP KUMAR TANKORIA 4. PERDIP TANKORIA 5. KRISHNA TANKORIA @ SRI KRISHNA KUMAR TANKORIA ALL SONS OF NARAIN TANKORIA, ALL RESIDENT OF BAKHARI, P.S. BAKHRI, DISTRICT BEGUSARAI. ... ... PETITIONERS. Versus 1. THE STATE OF BIHAR 2. MANOJ KUMAR CHOURASIA, SON OF SRI RAM DARIK CHOURASIA, RESIDENT OF VILLAGE BAKHRI, DISTRICT BEGUSARAI. ... ... OPPOSITE PARTIES. ---- For the Petitioners : Mr. pramod Manbansh, 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. Five 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 29.1.2002 passed in Complaint Case No.1201C of 2001, whereby the learned Magistrate, after being satisfied that prima facie offence under Sections 147, 323, 420 and 406 of the Indian Penal Code was made out, had directed for summoning the petitioners. 2 2. Short fact of the case is that opposite party no.2 filed complaint in the court of Sub Divisional Judicial Magistrate, Begusarai, which was numbered as Complaint case No.1201C of 2001. In the complaint petition, it was disclosed that in the year 1986, father of the complainant had executed a sale deed in favour of petitioner no.1 on a consideration money of Rs.20,000/-. However, there was a condition in the sale deed that if by the month of May, 1987, the father of the complainant returns Rs.20,000/-, the petitioner no.1 Narain Tankoria @ Narain Pd. Tankoria will execute a deed for re- conveyance of the land in question in favour of father of the complainant. It was further disclosed that subsequently, within the prescribed period, the father of the complainant paid Rs.20,000/- to the petitioner no.1 and after receiving the said amount, the petitioner no.1 returned the sale deed after making an endorsement of receipt of the amount in question. It has further been disclosed that thereafter, the complainant came in possession of the land in question. However, after noticing that the 3 petitioner no.1 was contemplating to sell the said land to some one else and thereafter, the accused persons started creating disturbance over the land in question, on 28.8.2001, a proceeding under Section 145 of the Code of Criminal Procedure was initiated as per petition filed by the complainant and his brother Sunil Kumar Chaurasia. After initiation of proceeding under Section 145 of the Code of Criminal Procedure, it has been alleged in the complaint petition that accused persons persuaded the complainant that he will execute re-conveyance deed in respect of the land in question. Subsequently, the complainant went to the house of the petitioner no.1. It has been alleged that petitioner no.1 on some pretext took back the sale deed in his possession and thereafter, he never returned the same. It has further been disclosed that the accused persons abused and assaulted the complainant also. On the aforesaid allegation, the complaint petition was filed. After conducting enquiry, the learned Magistrate, by the impugned order, has taken cognizance of offences and summoned the petitioners. 4 3. By filing a supplementary affidavit on 16.9.2010, it was intimated that during the pendency of this petition, the petitioner no.1 died. In the supplementary affidavit, a photo copy of death certificate of petitioner no.1 has also been enclosed as Annexure-1. Keeping in view the fact that petitioner has already died, the case against petitioner no.1 stands abated. 4. Aggrieved with the order dated 29.1.2002 passed by the learned Judicial Magistrate, Ist Class, the petitioners approached this Court by filing the present petition, which was admitted on 12.3.2004. While admitting, this Court directed that during the pendency of this application, the interim order dated 3.12.2002 shall remain operative. The stay order is still continuing. 5. Shri Pramod Manbansh, learned counsel appearing on behalf of the petitioners, while challenging the order of cognizance as well as initiation of proceeding against all the petitioners, submits that from the contents of the complaint petition, itself, the allegation 5 appears to be not probable. Learned counsel for the petitioners has submitted that after the sale deed, the petitioners had come into peaceful possession over the land in question. It is true that as per agreement, it was required that if within specified period i.e. by the month of May,1987, the required amount i.e. amount of Rs.20,000/- would have been paid, then certainly, the petitioner no.1 was required to execute a deed for re-conveyance. Since the amount was not refunded within the time, it was considered that the sale deed had taken its finality after the expiry of period specified for re-conveyance. It has been submitted that it is also improbable that once the complainant had filed a petition for initiating a proceeding under Section 145 of the Code of Criminal Procedure, it was reasonable and necessary on the part of the complainant to at least make some indication in the petition that on earlier occasion a deed was executed by father of the complainant and thereafter, despite the fact that amount was refunded, the accused no.1 had not executed a deed of re-conveyance. 6 None mentioning of such facts in the petition i.e. Annexure-2 to the petition makes it clear that the sale deed executed by the father of the complainant had taken its finality and only with a view to create un- necessary dispute, the present complaint was filed. On the ground of improbability coupled with the stand taken by the complainant in Case No.194M of 2001, which was initiated under Section 145 of the Code of Criminal Procedure, it has been submitted that the order of cognizance is liable to be set aside. It has been alternatively argued that if for the time being, it is assumed that there is some truth in the complaint petition, each and every allegation was levelled against the petitioner no.1, who is now already dead. While referring to the contents of the complaint petition, it has been argued that neither any specific allegation nor whisper has been made against petitioner nos.2 to 5 regarding commission of any offence against them. Accordingly, it has been prayed to set aside the impugned order as well as entire proceeding. 6. Smt. Indu Bala Pandey, learned 7 Additional Public Prosecutor appears on behalf of the State. 7. In this case, despite the fact that opposite party no.2 had entered his appearance through an advocate, at the time of hearing, none appeared in his behalf. The case was firstly partly heard on 16.9.2010. Even on that date, none appeared. Today again, none has appeared on behalf of the opposite party no.2. 8. Besides hearing learned counsel for the petitioners and State, I have also perused the materials available on record. After going through the contents of the complaint petition, it is difficult for this Court to come to a conclusion as to whether the allegation suggests prima facie commission of any offence. On the contrary, the averment made in the complaint petition appears to be not probable. This is further corroborated from the averment made in the petition, which was filed by opposite party no.2 in the court of Sub Divisional Magistrate, Bakhri vide Case No.194M of 2001, whereby a prayer was made to initiate proceeding under Section 145 of the Code of 8 Criminal Procedure against all the five petitioners. Moreover, whatever allegation has been made was made against the petitioner no.1, who is no more. 9. Keeping in view the facts and circumstances of the present case, this Court is of the opinion that it is a fit case for exercising inherent jurisdiction in favour of the petitioners. 10. Accordingly, the impugned order dated 29.1.2002 in Complaint Case No.1201C of 2001 is hereby set aside and petition stands allowed. ( Rakesh Kumar,J.) PATNA HIGH COURT Dated 21.9.2010 N.A.F.R./N.H.