IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.1025 of 2009 ASHOK KUMAR SINGH Versus STATE OF BIHAR & ORS ----------- 3. 30.4.2010 This petition has been filed for quashing the order dated 26.11.2008 passed by the learned Sessions Judge, Saran at Chapra, in Cr. Revision No. 237 of 2008. By the above order the learned Sessions Judge while allowing the revision petition directed the accused persons, i.e., opposite parties no. 2 to 5 to be discharged from the trial being conducted vide Tr. No. 3187 of 2008 arising out of Manjhi P.S. Case No. 8 of 2006. It appears that a complaint petition was filed by the petitioner before the learned Chief Judicial Magistrate, Chapra, a copy of which was forwarded to the Police Station under Section 156(3) of the Cr. P.C. for investigating the allegations. Accordingly, the F.I.R. of Manjhi P.S.Case No. 8 of 2006 was drawn up. The police after investigation did not find the allegations true and submitted a final report disclosing the civil dispute. But, the learned Chief Judicial Magistrate differed with the opinion of the Investigating Officer and took cognizance and passed the summoning order directing that the Opposite parties 2 to 5 be put on trial for the offences under Sections 420,504,379/34 of the Penal Code. That order of cognizance and summoning was not challenged but, subsequently, after appearing before the learned 2 Judicial Magistrate, Chapra, all the accused filed a petition under Section 239 of the Cr.P.C. requesting the court to discharge them from the trial as no offence was made out or appeared committed by them. The learned trial Magistrate passed the order dated 29.7.2008 refusing the prayer of the accused persons for being discharged and directed the charges to be framed on 12.8.2008. Out of the array of five accused only Ambika Singh( O.P.No. 5) preferred the criminal revision petition before the learned Sessions Judge and that resulted in the impugned order by which the accused persons were directed to be discharged. The facts of the case were that the accused persons and the complainant were Pattidars in between them but their houses were situated separately from each other almost contiguously. The complainant stated that he along with his family was residing in Chapra and was carrying on some businesses there. He had put some Mahua trees under the management of one Jagmohan who used to hand over to him the sale proceeds which could be accruing out of those Mahua trees to the complainant. However, in the months of June/July, 2004, Opposite Party No.2 Manan Singh, in absence of the complainant and without his consent along with his two sons who are also opposite parties Anil Singh and Manoj Singh as also in league with one of his co-villagers, namely, opposite party no. 5 Ambika Singh, sold one of the trees for Rs. 12,000/- 3 and allowed that to be cut and removed. Accused Manan Singh retained the sale proceeds of the trees himself and did not share that money with the complainant. The complainant made several requests and reminders which were initially responded by holding out promises that he would pay up, but lastly accused Manan Singh did not pay up, rather, held out serious threats to the complainant as a result of which the complainant and his family members got frightened and informed the administration about it. The accused persons learning abut the information by the complainant to the Officers of the administration became very hostile to the complainant and started abusing him and threatened that nothing could be done by them against the accused persons to help him.. The complainant stated that he attempted to resolve the dispute but that did not work out and ultimately the complainant had to file the complaint petition. While dismissing the petition filed under Section 239 of the Cr. P.C. by the accused persons, the learned Magistrate referred to some of the paragraphs of the case diary and held that the materials contained in those paragraphs indicated the complicity of the accused in commission of the offences. While considering the propriety of that particular order in criminal revision petition, the learned Sessions Judge also referred to the case diary to reach a conclusion that it was purely a dispute of civil nature in respect of partition of the properties and no offence appeared made out because none of the witnesses 4 supported the allegation of theft. In that connection, the learned Sessions Judge has referred to the statements of some of the witnesses, probably, whose statements were recorded in the case diary. Shri Bindhyachal Singh, learned counsel appearing for the petitioner challenged the order passed by the learned Sessions Judge, firstly, on the ground that the learned Sessions Judge did not have the powers as this Court has under Section 482 of the Cr. P.C. so as to quashing the entire proceedings even against those who had not applied for it before him by being a party to the above criminal revision petition. It was next contended that in the light of the decision of the Supreme Court reported in A.I.R. 2000 S.C. 1869 M/s Medchi Chemicals and Pharma Pvt. Ltd. Vs. M/s Biological E. Ltd. and others., ( 2000) 9 S.C.C. 547 Maratt Rubber Ltld. Vs. J.K.Marattukalam and lastly 2010(1) B.B.C.J 289(S.C.) Md. Ibrahim & ors. Vs. State of Bihar & anr., even if the facts of a case could have a ting of civil dispute, a criminal liability could not be said to vanish on that ground and the criminal case shall proceed for trial of the accused persons. It was also contended that it was simply curious to find out that without challenging the order of cognizance before the appropriate court, the accused persons were seeking an order of discharge before the learned Magistrate and, again, they did not prefer any revision petition and, as such, the learned Sessions Judge was going out of his jurisdiction to 5 allow the prayer by setting aside the whole of the trial proceeding. It was also contended that for discerning the constitution of an offence, the defence of an accused or any prospect of the case ending in acquittal could never be the ground to be considered by the court and treating the allegation made in a petition of complaint or in the F.I.R .to be true, the court has to judge as to whether any offence is made out and if that could not have been the position then only the court could discharge the accused persons. Shri Awadhesh Kumar, learned counsel appearing for opposite party no.2 has supported the order passed by the learned Sessions Judge by submitting that now the matter is before this Court and this Court has been asked to act under Section 482 of the Cr. P.C. and even assuming for the sake of argument that the learned Sessions Judge did not have the powers to pass the order, this Court has to take a holistic view on the nature of the criminal proceeding which was initiated and if it finds that the order which was passed by the learned Sessions Judge was required under the facts and circumstances of the case, then this Court must confirm it without going into the jurisdictional wrangle as was posed by learned counsel for the petitioner. It was contended that this has been the law enunciated by this Court in 1987 P.L.J.R. 946 Jagdish Pandey Vs. Ramdeo Rai alias RamdeoAhir. It was contended that the facts of the case even accepted to be true on their face value 6 gives out a clear picture of civil dispute and the criminal proceedings appears erroneously initiated by the learned Magistrate. Shri Umesh Lal Verma, learned Additional Public Prosecutor appearing for the State adopted the argument advanced by the opposite party. Shri Singh was not wrong in pointing out the correct proposition of law that for discerning the commission of any offence or constitution thereof, the facts stated in the F.I.R. or in the complaint petition have to be treated to be true on their face value and on that basis the courts have to judge the proceedings which could be initiated by the summoning order passed by the learned Magistrate. What I want further to add to the above position is that the admitted facts could not be ignored by the courts so as to discerning the factual position of the case and then to proceed to judge the merits of the prayer. The details of such facts may be coming out of some report or complaint or may be shown to the court at that particular level of particular proceedings if there could be some reference about those documents in the complaint petition or anywhere which could be the material related to that complaint or the F.I.R. If it is indicated from the record of the case that there is a fact which is admitted, then the court could never ignore that fact and it has to take into account that admitted fact also so as to judging the order of summoning or an order of the nature as passed by the learned Sessions Judge. 7 In the very first paragraph of the complaint petition it was stated that the parties were pattidars. The other statements in the complaint petition indicate that the dispute between the parties was for partition. This is how the allegations were being brought in paragraphs 3,4 and 5of the complaint petition that the accused sold out the standing Mahua tree for Rs. 12,000/- and retained the sale proceeds with him and further that the complainant was asking for his share in the sale proceeds of the tree from the accused, who had initially promised on some occasions to pay the same to the complainant. If this could be the position in the complaint petition then Shri Singh, learned counsel for the petitioner could not be allowed to argue that the property was not joint. As soon as I hold that the property was joint, then the offence of cheating which is punishable under Section 420 of the I.P.C. or that of misappropriation, which was inserted in the complaint petition or even an offence under Section 379 I.P.C. could not be said to be constituted. As soon as it is found, as I find presently, from the admitted facts which appear from the complaint petition that the accused was acting under a bona fide belief that the property belonged to him as well and that he could be within his civil rights to deal with the property in the manner as he wanted and whatever legal or illegal steps were taken by him under that belief could not be said to be an offence. The complainant could get his share by filing a suit seeking partition and putting down the facts in 8 respect of his share in the sale proceeds of the property claiming it as a partible joint property.. As regards the jurisdictional error which was allegedly committed by the learned Sessions Judge, the submission of Shri Singh that he ought not have quashed the proceedings in respect of all the accused persons who were not parties before him was not available to him. Could not it be said by implication that if a proceeding could be bad against one accused person, it could be bad against all the accused. If the court could hold that no offence was made out against one accused, could it say on the same facts and evidence or materials that case was made out against the others. It could be the most unfortunate situation in the justicing system that the courts will be making two orders under the same factual position in respect of two accused persons. Could Equality before law and equal protection of law be not extended to a person who is not before the court and who faces the same plight or allegation in the same criminal proceedings? If a court finds that the person who was covered by the same set of facts could also get the same benefit. There could not be any illegality or absurdity if the court proceeds to grant the relief to such an accused on the same facts and evidence who has not approached it if it grants it in proceeding brought about by any of such accused persons of the same proceedings. The learned Sessions Judge has held that the case appeared of civil nature and discharged the opposite parties. 9 This Court reached the same conclusion that the proceeding which was initiated by the trial Magistrate was an abuse of the process of the court and if the proceeding of one accused was quashed then the whole proceeding has to be quashed against all the accused persons. After all, the Sessions Judge also enjoys powers of suo motu revision, and may exercise it in absence of a properly framed and filed petition to set aside the order or to terminate a proceeding if it comes into his knowledge if he finds it necessary to do further in the ends of justice. What I find in the light of the above discussions is that the order passed by the learned Sessions Judge appears correct and passed after proper appreciation of the facts as also the admitted facts. The petition is dismissed. Let the order of the learned Session Judge take its effect before the court of the learned Magistrate. Any observation made herein shall not impede or obstruct the jurisdiction of a civil court which could be hearing the civil proceedings, which the petitioner may prefer in due course of time. Kanth/A.F.R. ( Dharnidhar Jha, J.)