IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.17326 of 2009 Bibi Noor Fatima, widow of Late Ghulam Mohammad Mustafa Khan, resident of Mohalla- Bhikhanpur, P.S. Ishaqauechak, District- Bhagalpur. …………Petitioner. Versus 1. The State of Bihar. 2. Md. Rizwan, son of Late Md. Suleman Khan, resident of Mohalla- Bhikhanpur, P.S. Ishaquechak, District- Bhagalpur. ……………………….Opposite Parties. For the petitioner :- Mr. Abu Haider, Advocate. For O.P.No. 2 :- Mr. Syed M. Ashraf, Advocate. For the State :- Mr. Damodar Pd. Tiwary, A.P.P. ----------- 5. 30.11.2010. Heard. This criminal miscellaneous petition is directed against the order dated 27. 08. 2007, passed by Shri Ghulam Gaus, Judicial Magistrate, Ist Class, Bhagalpur, in Complaint Case No. 444/06 by which he has rejected the petition under Section 239 of Code of Criminal Procedure for discharging from the charges levelled against her. In the complaint, the prosecution case is that both the accused persons impressed upon the complainant that their financial condition is bad and they want to sale their homestead land bearing Khata No. 1131, Khesra No. 1349, area 0470 hectors which they have got to sale for consideration of Rs. 3,00,000/- . Rs. 25,000/- was paid as zerbeyenama in cash to the accused Gulam Mohammad Mustafa Khan as consideration for contract to sale with an endorsement 2 that rest of the amount will be paid at the time of execution of the sale deed. It is further alleged that heirs of khatiyani raiyat learned about the zerbeyenama then they made objection. It is further alleged that accused Gulam Mohammad Mustafa Khan in breach of agreement surrendered and executed sale deed of 3 khatas and 3 and half dhurs of land in favour of one Ali Imam. It is alleged that Rs. 2,57,500/- has been paid to the accused but the accused (petitioner's husband) returned only Rs. 1,28, 750/- and rest amount Rs. 1,28,750/- has not been returned. The Pleader notice was sent to the accused Gulam Mohammad Mustafa Khan for Rs. 1,28,750/-. It has further been alleged that on 05.03.08, when the complainant went to the house of the accused Gulam Mohammad Mustafa and asked him to return the rest of amount , then complainant was abused and assaulted and it is also alleged that petitioner's husband took his wrist watch and it is also alleged that wife of the accused was also abused and assaulted by fist and slaps. However, on the complait cognizance was taken under Sections 406, 420, 323 and 504/34 of the Indian Penal Code. in the case by order dated 05. 12.2006 However, during the pendency of the case, 3 Gulam Mohammad Mustafa khan died and petition along with death certificate was filed before the lower court about the death of Gulam Mohammad Mustafa Khan. . However, a petition under Section 239 Cr.P.C. filed by the petitioner, wife of Gulam Mohamand Mustafa Khan, but the petition under Section 239 Cr.P.C. was rejected by order dated 27. 08. 2007, then this criminal miscellaneous has been filed for quashing the impugned order dated 27. 08. 2007. Learned counsel for the petitioner has however, contended that whatever allegation is made in the complaint petition is against Gulam Mohammad Mustafa Khan and not against petitioner Bibi Noor Fatima, wife of Late Gulam Mohammad Mustafa Khan. Learned counsel for the petitioner however, contended that there is allegation about the agreement of sale. It is alleged that agreement of sale deed executed by Gulam Mohammad Mustafa Khan in favour of Md. Riwan, complainant and money was also taken by Gulam Mohammad Mustafa Khan and there is no allegation even in complaint/F.I.R against this petitioner. However, even there is allegation makes out a case of breach of contract. However, even if there is breach of contract then the complainant has remedy in civil side as it is a claim for specific performance of 4 contract then it is a civil dispute and hence criminal prosecution is not permitted. It has further been contended that whatever allegation made even regarding payment of money in pursuance of contract for sale is with regard to Gulam Mohammad Mustafa and not against this petitioner and in the entire complaint there is no allegation of payment of any amount to this petitioner nor the petitioner agreed to sale and there is no whisper about the conspiracy and only allegation at the fag end of the appeal that the petitioner has assaulted the complainant when the complainant went to demand money then Gulam Mohammad Mustafa abused and assaulted and in that genuineness there is allegation that this petitioner also abused and assaulted, but the allegation against this petitioner is quite vague and in the impugned order while rejecting the petition for discharge under Section 239 of Code of Criminal Procedure, there is no mention at all what was the material against this petitioner for making out a case against this petitioner by which disposing the petition under Section 239 of Cr.P.C. Learned counsel for the petitioner further contended that there is no allegation against this petitioner regarding receipt of amount for contract for sale except at the fag end the petitioner also abused and assaulted 5 which is quite vague and omnibus. Learned counsel for the State however, contended and relied upon decision reported in 2001 (1) PLJR page 42 that once the charge could be framed the trial must be proceeded without unnecessary interference by the superior court but there is specific observation that save and except in interest of justice and to prevent abuse of process Court. However, under the facts and circumstances of the case, it has been pointed out by the learned counsel for the petitioner two fold submissions have been submitted that even taking of entire allegation and the complaint petition itself it is true that there is no allegation against this petitioner whatever alleged is about breach of contract for sale and if there is breach of contract, it is a civil dispute and filing a specific remedy for specific performance of contract. Moreover, it is alleged that Gulam Mohammad Mustafa Khan executed a sale deed and even notice was issued against him. Further allegation that when he went to assure to return the amount then the allegation of abuse and assault, but the allegation of abuse and assult is vague and omnibus itself appears to be patiently absurd and the allegation against this petitioner is itself quite vague and not specific. Moreover, the petition under Section 6 239 Cr.P.C was disposed of by the trial court without mentioning any fact about the allegation or material against the petitioner. However, having regard to the facts that taking the entire allegation it reflects of civil dispute and whatever allegation about assault appears to be patiently absurd. However, allegation has been made is against Gulam Mohammad Mustafa who has already been died and the allegation against this petitioner is quite vague and not specific. However, it is apparent that learned lower court while disposing of the petition under Section 239 Cr.P.C. did not take into consideration the fact and material against her and passed order without due application of mind with regard to the facts and circumstances of the case and hence, allowing impugned order subsists against interest of justice and hence impugned order is set aside and the case is remanded to consider the petition under Section 239 Cr.P.C. afresh and to dispose of specific order taking into consideration with the evidence and material on record with due application of mind by a specific order. With the above observation the impugned order is set aside and the petition is allowed. m.p. ( Gopal Prasad, J.) 7