IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.18913 of 2007 1. RAM SWARATH SAH, Son of late Prayag Sah, 2. Deeplal Sah @ Deep Narayan Sah, Son of late Prayag Sah 3. Ram Karan Sah, Son of Late Prayag Sah 4. Ram Krit Sah, Son of Late Prayag Sah All are residents of village Parsauni Khirodhar, P.S. Parsauni, District Sitamarhi …… Petitioners Versus 1. STATE OF BIHAR 2. Sitaram Sah, Son of Late Dhanpat Sah, R/o village Parsauni Khorodhar, P.S. Parsauni, District Sitamarhi ….. Opp. Parties. ----------- For the petitioner : Mr. Ajit Kumar Singh, Advocate For the State : Mr. Jharkhandi Upadhaya, A.P.P. For O.P. No. 2 : Mr. Dilip Kumar Mishra, Advocate O R D E R Four out of the five FIR named accused of Belsand P.S. Case No. 74 of 2004 have preferred this application for quashing of the order dated 4.5.2006 passed therein by the learned Chief Judicial Magistrate, Sitamarhi, whereby he has taken cognizance against all the five accused including the petitioners under sections 323, 465, 420 and 504 IPC as also the subsequent order dated 26.3.2007 passed by the learned Sessions Judge, Sitamarhi, whereunder he has summarily dismissed at the admission stage Cr. Revision No. 183 of 2006 preferred by the petitioners against the order dated 4.5.2006 having given them the liberty to raise all these issues / pleas at the time of the framing of charges. The informant, one Sitaram Sah impleaded herein as O.P. No. 2, initially preferred complaint case bearing No. 1461 of 2003 which was transmitted to the concerned P.S. under section 156(3) Cr.P.C. and on the - 2 - basis thereof the instant Belsand P.S. Case came to be registered under sections 323, 465 and 420 IPC. The prosecution case in brief is that consolidation case being Misc. Case No. 4 of 1979 was filed for correction of khatian and orders having been passed in favour of the father of the complainant, khesra no. 792 came to be registered in his name. It is said that O.P. no. 2, Prayag Sah, did not challenge the said order in a higher forum , had became final and the complainant has been paying rent for the same. It is said that in the year 2003 when the complainant went to collect his rent receipts of revisional survey no. 792 he found that the aforesaid plot had already sold by accused Prayag Singh through a sale deed dated 2.11.1995 to one Upendra Rai. A panchayati was convened at the instance of the complainant for highlighting the alleged sale but the accused started to abuse him and also threatened to get the lands purchased possessed by the vendee. The submissions on behalf of the petitioners is that they are innocent and have been falsely implicated in this case. In this connection it has been submitted that Ramdhari Sah, the common ancestor had two sons Shrawan Sah and Gena Sah of whom Gena Sah died issueless and Shrawan had one son Prayag Sah. The raiyati khatian, raiyati parchas, rent receipt of plot no. 792 are in the name of two brothers Shrawan and Gena. Prayag Sah had 4 sons who are the petitioners herein. It is submitted that in course of the investigation the police examined a large number of witnesses all of whom stated before the police that there is long standing enmity over land dispute between the - 3 - complainant and the petitioners. They have also stated that the land in question comprises of khata no. 247 kheshra no. 792 appertaining to an area of 14 decimals and is registered in the name of Shrawan Sah and Gena Sah in the khatiyan and as Shrawan and Gena were own brothers and Gena died issueless the entire lands of Gena fell to the lot of Shrawan and Prayag being the only son of Shrawan became the owner of the lands in question. It is also submitted that being the full owner of all the lands Prayag had the right to sell the lands in question and the complainant Sitaram Sah was unnecessarily causing harassment and hazards to the peaceful existence and to usurp the lands in question by getting the said lands registered in his father’s name by filing a frivolous consolidation case before the Consolidation Officer who curiously without hearing the legal and rightful owner had passed orders. Referring to paragraph 28 of the case diary the learned counsel for the petitioners sought to submit that the investigating officer had requested the complainant to show him the khatiyan and after perusal of the same he came to be conclusion that Prayag Sah was the actual owner of the disputed lands and the complainant was making a false claim over the same. Finally it was submitted that no case under sections 420 and 465 IPC can be said to have been made out as the entire episode and the narrations in the complaint petition revealed a civil dispute for which no criminal proceeding lay. In this connection he submitted that the learned Chief Judicial Magistrate had erred in his judicial assumption and had taken cognizance. On the other hand the learned counsel for O.P. No. 2 sought - 4 - to defend the impugned order and submitted that after the Consolidation Officer had rectified his order as disputed lands of khesra no. 792 was recorded in the name of the complainant’s father the complainant by virtue of the said order had obtained right, title and interest over the same and as such he was at liberty to sell the lands to any one he liked but when Prayag Sah and the petitioner notwithstanding the order of the Consolidation Officer sold the lands which had been recorded in the name of the father of the complainant they had definitely resorted to offence under sections 420, 465 and 504 IPC. He also sought to submit that a particular act of commission or omission can give rise to a civil dispute or a criminal offence or both and in this particular case it is clear from the averments that there was a definite intention in Prayag Sah and the petitioners to sell the lands belonging to the complainant knowing full well that the Consolidation Officer had made a correction in the khatiyan and had ordered for recording the name of the father of the complainant against the land in the disputed plots and as such had invited criminal liability and the learned Magistrate had rightly taken cognizance against them under the provisions of the Penal Code. It is apparent on consideration of the rival contentions raised by the parties that disputed and controversial facts have been raised by the parties which cannot be made the basis for the exercise of jurisdiction under section 482 Cr.P.C. and have to be thrashed out at a full dressed trial. The law is well settled that the revisional or inherent power of quashing the proceedings or orders at the initial stage should be exercised sparingly and only where the allegations made in the - 5 - complaint or the FIR, even if taken on their face value and accepted in entirety do not prima facie disclose the commission of an offence. That unfortunately is not the situation here. Due regard being had to the facts and discussions made in the foregoing paragraphs I am not inclined at this stage to interfere with the impugned order. Accordingly I do not find any merit in this application which is dismissed. Patna High Court, Patna. Dated : The 26th of February, 2009 Sanjay Pd./A.F.R. (Abhijit Sinha, J.)