CRIMINAL MISCELLANIOUS No.12610 OF 2005 In the matter of an application under section 482 of the Code of Criminal Procedure. 1. RANJANA PURVEY @ RANJANA KUMARI, Head Mistress of Krishan Ballabh Sahay High School, Sherullahpur Shekhpura, P.S. – Shastri Nagar, District – Patna. 2. Dharmendra brahmchari, Assistant Teacher of Krishna Ballabh Sahay, High School, Sherullahpur Shekhpura, P.S. – Shekhpura, District – Patna. --------------Petitioners. Versus 1. THE STATE OF BIHAR 2. Vijay Kumar Singh, son of Late Krishna Murari Singh, Resident of Shekhpura, P.S. Shastri nagar, District – Patna, Founder and life member of Middle, High and Inter College, Shekhpura, P.S. – Shastri Nagar, Patna, District – Patna. -----------Opposite Parties. ******* For the Petitioners : Mr. Rana Pratap Singh, Sr. Adv. Mr. Binay Kumar, Adv. Mr. Manoj Madhav, Adv. For the State : Mr. Nirbhay Kr. Singh, APP ***** P R E S E N T THE HON'BLE MR. JUSTICE AKHILESH CHANDRA ****** Akhilesh Chandra, J. Heard learned counsel for the petitioners and learned Additional Public Prosecutor for the State. None turned on behalf of the opposite party no.2 inspite of appearance and filing of the counter affidavit followed by supplementary counter affidavit. 2. This is an application under section 482 of the Criminal Procedure Code seeking quashing of the order dated 10.08.2004 passed by Sri Om Prakash Srivastava, Judicial Magistrate, 1st Class, Patna in complaint case no. 373(C) of 2004 taking cognizance for the offence under sections 379 and 149 of the Indian Penal Code. 3. The relevant facts of the case is that opposite party no.2 filed the complaint case for the offence under section 2 452,380, 307,147, 148, 149 of the Indian Penal Code and 27 of the Arms Act in the court of Chief Judicial Magistrate, Patna on 12.02.2004 alleging that on previous evening at about 7 P.M., the two accused persons who are petitioners here along with 15 – 20 unknown persons took away the articles belonging to Shri K.B. Sahay Inter College, kept in its office and laboratories and got the same loaded on truck when on information complainant went there inspite of his protest the same act continued and at the instance of petitioner no.1, petitioner no.2 unsuccessfully shot at him who had to leave the place but when after departure of the petitioners from place of occurrence with the articles, complainant arrived there again, got the details of the articles so taken away. 4. It is also stated that complainant opposite party no.2 has got three educational institutions opened in the name of Krisnha Ballabh Sahay, the then Chief Minister of Bihar, such as Middle School, High School and Inter College in the year 1968-84. He was one of the live member of the Managing Committee. Initially Middle School was established in the year 1968, three years thereafter High School was established in the year 1971 but Inter College was opened in the year 1984 and for the purpose running of such three institutions Middle School was allotted 5 kathas of land, High School was allotted one acre and Inter College was allotted 15 Kathas of land at same places under one common boundary. 5. Subsequently, High School was taken over by the government, Middle School was recognized as government 3 aided school whereas Inter College also got affiliation from the government to proceed. After nationalization in the year 1994 when the Principal of the High School started taking steps for removal of the Inter college from the premises one Title Suit bearing no. 18/1994 was filed wherein order of ad interim injunction against the authorities was also passed. However, subsequently the suit was dismissed for non-prosecution but one miscellaneous appeal no. 57/2003 is pending int eh court of District Judge for restoration. 6. It is also contended that in fact brother of the opposite party no.2 who was earlier Headmaster of the High School when was ordered to be transferred, Title Suit 18/1994 was filed with an ulterior motive. No doubt, initially Inter College was permitted to continue by the authorities but only for three years on certain terms and conditions in the year 1987 but subsequently, when the conditions imposed could not be fulfilled it has been recalled and the complainant in connected civil proceeding alleging disobedience of the injunction order also admits in his deposition that for the last 6-7 years College is not running and just to put pressure and harass the lady Principal and others associated with the High School criminal case has been filed alleging theft in a non-existing college. Learned Additional Public Prosecutor, while supporting the impugned order submitted that offence is made out from the very reading of the complaint petition and the court below has rightly taken cognizance for the offences, impugned order needs no interference. 4 7. During the pendency of the case, on behalf of opposite party no.2 counter affidavit and its supplementary both have been filed whereas on behalf of the petitioners reply to such counter affidavits have been filed and both the sides have produced some more documents. 8. From the materials available it is now undisputed that Title Suit 18/1994 relating to main controversy, was dismissed for default earlier has already been restored and there was a proceeding against the petitioners under order 39 rule 2A C.P.C. bearing Miscellaneous Case No. 6/2004 initiated by filing petition on 10.03.2004 has been dismissed on merit on 02.04.2006 but Miscellaneous Appeal No. 56 of 2006 against such order is pending disposal. 9. It is also undisputed as reveals from Annexure – 5 at page 81 of the application that vide letter no. 662 dated 20th July 1987 on certain conditions Inter College was permitted to run in morning shift in the building of K.B.Sahay High School, which was from time to time appears extended (vide para 7 and 8 of plaint of Title Suit no. 18/1994 Annexure – 4) and vide Annexure – 6 at page 82 letter no. 179 dated 18.03.2004 affiliation of the college accorded by letter no. 341 dated 13.09.1994 was finally revoked by Intermediate Council. 10. During pendency of Miscellaneous Case No. 6/2004 opposite party no.2 appears examined as a witness copy of his deposition is on record as Annexure – 10 and my attention was drawn towards para 22 of his statement which appears also referred in the order passed in said miscellaneous 5 case, from where it appears that for 6-7 years the College is not running. It is irrelevant whether college is running or not but in same statement in para 13, opposite party no.2 has specifically stated that he has yet not vacated the school building wherein Inter College was permitted to continue, of course, on certain conditions in the morning shift. 11. Now this much remains undisputed that there are three institutions opened in the name of Late Shri K.B. Sahay and somehow or the other the institutions are litigating with each other with respect to the lands said to have been allotted to them as further appears from the copy of the plaint of Title Suit No. 18/1994 on record as Annexure – 4 as well as also finds mention in the complaint petition. 12. The materials available are sufficient to prima facie establish that K.B.Sahay Inter College was in existence which finally lost its affiliation through letter dated 18.03.2004 of the Intermediate Council and it was running in the building of K.B. Sahay High School but there is nothing on record to show the College has vacated the building or shifted to any place at any point of time. The occurrence of theft as alleged took place on 11.02.2004 so in face of existence of the college, non- vacation of the building, allegation of theft levelled by the complainant opposite party no.2 cannot be overruled merely on the ground of pendency of Title Suit and dispute between the parties relating to the land allotted for different institutions etc. 13. Leaving aside all other materials from the bare perusal of the complaint petition it appears that between the 6 parties there is civil dispute also and the dispute is prima facie in between the two institutions and authorities representing them. In such type of cases if any complaint is lodged the court having jurisdiction to take cognizance of the same needs to go through the contents and decide to select either of the option to proceed as provided under section 202 of the Criminal Procedure Code which reads as such: 202. Postponement of issue of process – (1) Any Magistrate, on receipt of a complaint of an offence of which he is authorized to take cognizance or which has been made over to him under section 192, may, if he thinks fit, postpone the issue of process against the accused, and either inquire into the case himself or direct an investigation to be made by a police officer or by such other person as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding: Provided that no such direction for investigation shall be made – (a) where it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Sessions; or (b) where the complaint has not been made by a Court, unless the complainant and the witnesses present (if any) have been examined on oath under section 200. (2) In an inquiry under sub-section (1), the Magistrate may, if he thinks fit, take evidence of witness on oath: Provided that if it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Sessions, he shall call upon the complainant to produce all his witnesses and examine them on oath. (3) If an investigation under sub- section (1) is made by a person not being a police officer, he shall have for that investigation all the powers conferred by this Code on an officer in charge of a police station except the power to arrest without warrant. 14. And ultimately decide whether in such type of cases, Examination of a few witnesses during inquiry before 7 them would be adequate to ascertain the truth or they need thorough investigation. 15. In the instant case, taking into consideration the nature of dispute and allegation, it could have been proper for the court below to adopt the recourses of getting the allegation properly investigated by the police and for the same transmit the case in exercise of powers under section 156(3) of the Criminal Procedure Code but non-adopting adequate option by the court below speaks improper application of judicial mind. In that view of the matter, the impugned order is not sustainable but needs a fresh order from the court below in the light of observations made above. 16. Accordingly, this application stands disposed of and the matter is remitted to the court below to pass appropriate order in the light of observation made above. Patna High Court Date : The 26th August, 2010 Rajeev/ (Akhilesh Chandra, J.)