CRIMINAL MISCELLANEOUS No.17992 OF 2000 ------- In the matter of an application under section 482 of the Code of Criminal Procedure. ------- 1.RABINDRA CHOUDHARY 2.Arvind Choudhary Both sons of late Visheshwar Choudhary, resident of Bakhari, P.S.-Sursand, Dist.-Sitamarhi …… Petitioners Versus 1.THE STATE OF BIHAR 2.Suman Kishore Narayan Singh son of Jitendra Kishore Narayan Singh, resident of Malepur Pakari, P.S.& Dist.- Sitamarhi ….. Opp.Parties. ------- For the petitioners: Ajay Kumar Thakur No.2 For the state: Mr.Chandrasen Prasad Singh ------- 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 24.4.2000 whereby charges under sections 323, 504, 406 and 420 of the Indian Penal Code were framed against the petitioners by Sri M.M.Choudhary, learned Judicial Magistrate, Ist Class, Madhubani in T.R. No.695 of 2000 arising out of C.R. Case No.24 of 1999. 2. Short fact of the case is that the petitioners, who are maternal uncle (Mama) of opposite party no.2, were made accused on an allegation that the complainant on oral permission of his maternal grant father (Nana) had started a Saw Mill over the land of his maternal grand father. The complainant had purchased tools and machines for starting a Saw Mill and had started the same in full swing. Subsequently, both the petitioners persuaded the complainant to give them the Saw Mill on rent on a monthly rental of Rs.5,000/-. It was disclosed by the complainant that for 2 about two years the accused-petitioners regularly made payment of rent to him but thereafter by one reason or the other the payment of rent was stopped by the petitioners and dues came to about Rs.1,00,000/-. In the complaint petition the complainant further alleged that when he demanded his dues both the petitioners firstly abused him and thereafter the petitioners assaulted him as well as his father. On the aforesaid allegation the complaint petition was filed for the offences under sections 406, 420, 323, 504 and 506 of the Indian Penal Code in the court of Chief Judicial Magistrate, Madhubani vide C.R. No.24 of 1999. After completion of enquiry, the learned Magistrate by its order dated 8.3.1999 took cognizance of offences under sections 406, 420, 323 and 504 of the Indian Penal Code and subsequently by the impugned order dated 24.4.2000 charges were also framed against the petitioners for the same offences i.e. under sections 406, 420, 323 and 504 of the Indian Penal Code. 3. Aggrieved with the order of framing of charge both the petitioners approached this court by filing the present petition. On 18.12.2000, while issuing notice to opposite party no.2, this court directed that in the meanwhile further proceeding in the court below as against the petitioners shall remain stayed. Thereafter, on several occasions steps were taken for getting the notice served on opposite party no.2 but all went in vain. However, after the direction of the court for substituted service, the notice was published in the news paper and finally on 19.5.2004 this petition was admitted for hearing. It was directed that during pendency of this application the interim order dated 3 18.12.2000 shall continue to remain in operation and the same is still operative. Again after the case was admitted, notices were directed to be issued and finally the report was accepted as valid service. Despite service of notice, the opposite party no.2 has not preferred to appear in the present case. 4. Sri Ajay Kumar Thakur No.2, learned counsel appearing on behalf of the petitioners, while challenging the impugned order, has submitted that on perusal of the entire complaint petition no offence is made out. It was submitted that on the basis of complaint petition it can be said that the dispute in between the petitioners and the complainant was civil in nature. So far as allegation of assault is concerned, on that point it was submitted that the same allegation was exaggerated and it was only ornamental. It was also submitted that the petitioners were none else but own maternal uncle (Mama) of the complainant and it was only a family dispute. Learned counsel for the petitioners has also referred to a judgment of this court reported in 2008(1) BBCJ 22 (M/s Marksman Pharma Ltd. & Ors. Vs. State of Bihar & Anr.). It was submitted that time without number it has been held that if the dispute is of civil nature, no party should be allowed to use a criminal proceeding as a tool for recovery of dues. On the aforesaid ground, learned counsel for the petitioners has submitted that the impugned order as well as entire criminal proceeding is liable to be set aside. 5. Mr.Chandrasen Prasad Singh, learned Additional Public Prosecutor appearing on behalf of the State even in absence of opposite party no.2 has opposed the prayer of the petitioner. It 4 was submitted that at least offence in respect of assault is evident on perusal of the complaint petition itself which was supported by the enquiry witness which is evident from the order of cognizance itself. Accordingly, he has submitted that this petition may be rejected. 6. Besides hearing learned counsel for the petitioners and the State, I have also perused the materials available on the record. This court is of the opinion that in a case where charge has already been framed, this court should refrain from interfering with such order and that too while hearing a petition under section 482 of the Code of Criminal Procedure. However, in view of the fact that in the present case dispute was between the family members and the whole dispute is centered with an allegation of non-payment of rent by the petitioners to opposite party no.2, this court is persuaded to examine the materials even after framing of charge. On the basis of contents of the complaint petition, this court is satisfied that it cannot be said that either of the offences under sections 406 or 420 of the Indian Penal Code is made out. The reason for this is that the complaint himself had admitted in the complaint petition that the land on which he had started a Saw Mill was the land of his maternal grand father (Nana) which was taken by the complainant on his oral permission. The complainant had accepted that the Saw Mill was given to the petitioners and the petitioners were required to pay monthly rent of Rs.5,000/- which was initially paid to him and thereafter dispute arose in between the parties. For such a dispute a criminal proceeding was not required to be initiated. So far as allegations of commission of 5 Patna High Court The 20th July,2010 Md.S./NAFR offences under sections 323 and 504 of the Indian Penal Code is concerned, in view of the facts and circumstances of the present case, it appears that the same allegation was exaggerated by the complainant. Moreover, the record shows that repeatedly steps were taken to serve notice on opposite party no.2 and finally after affecting substituted service notice could be served on opposite party no.2 but even then he has chosen not to appear before this court. Moreover, by order dated 18.12.2000 criminal proceeding was stayed against the petitioners and the stay order is still continuing. On the aforesaid situation particularly in view of nature of allegation this court is of the opinion that, for the ends of justice, it is necessary to interfere with the impugned order and the criminal proceeding. 7. Accordingly, impugned order dated 24.4.2000 as well as entire proceeding in C.R. Case No.24 of 1999( T.R. No.695 of 2000) is hereby set aside and the petition stands allowed. (Rakesh Kumar,J.)