CRIMINAL MISCELLANIOUS No.39247 OF 2006 In the matter of an application under Section 482 of the Code of Criminal Procedure. MD.KHURSHID ALAM @ MD.NASHIM SAD, SON OF LATE ABU SHAGIL AHMED ESMAIL RESIDENT OF VILLAGE BISHAMBHARPUR ALIOTH, P.S. AILOTH, P.S.- MUSHRIGHARARI, DISTRICT – SAMASTIPUR. ------------Petitioner. Versus 1. THE STATE OF BIHAR 2. QUAZI MOHAMMAD NAJMUL TARIQUE @ TARIQUE ANWAR, SON OF LATE QUAZI MOHAMMAD NAJMUL HODA, RESIDENT OF VILLAGE AND MOHALLA DHARAMPUR NEW COLONY WARD NO.1, P.S.- SAMASTIPUR, DISTRICT – SAMASTIPUR. --------Opposite Parties. For the petitioner : Mr. Alamdar Hussain, Adv. Mr. Subodh Kumar No.1, Adv. For the opp. Party : Mr. Md. Rashid Alam, Adv. For the State : Mr. Damodar Pd. Tiwary,APP ***** P R E S E N T THE HON'BLE MR. JUSTICE AKHILESH CHANDRA ***** Akhilesh Chandra, J. Heard learned counsel for the petitioner, learned Additional Public Prosecutor for the State and learned counsel for the opposite party no.2. 2. This is an application under Section 482 of the Code of Criminal Procedure seeking quashing of order dated 16.05.2006 passed by Shri R.K. Choudhary Judicial Magistrate, 1st Class, samastipur, taking cognizance in complaint case no. 1596(C) of 2004 on the basis for the offence under Sections 420, 464, 465, 468 of the - 2 - Indian Penal Code in pursuance of order dated 28.02.2006 in Criminal Revision No. 461 of 2005. 3. The relevant facts of this case is that opposite party no.2 filed the complaint petition against 7 persons including the petitioner and his wife stating therein that during continuation of partition suit between his wife and mother-in-law at one hand and other co-sharers at other hand. The complainant could come to know that right from 1991, some transaction were done with respect to the properties in question by wife of petitioner in personating herself in place of Sahin Bibi. 4. Initially the court below after inquiry dismissed the complaint petition under Section 203 of the Criminal Procedure Code giving rise to criminal revision no. 461 of 2005 which was allowed and cognizance was taken giving rise to instant application. Meanwhile, against the order of Revisional Court one Criminal Miscellaneous No. 14430 of 2006 was filed but in view of order taking cognizance, it was dismissed as - 3 - withdrawn vide order dated 11.08.2006, with a liberty to file a fresh application (present one). 5. It is submitted on behalf of petitioner that complaint petition itself is vague and from taking into entire statements true no offence is made out, civil suit seeking partition is pending since before, so criminal case has been initiated just to put undue pressure even said Sahin Bibi who is allegedly impersonated has neither been described as witness nor examine in inquiry nor there is anything in the complaint petition as regard to her connection with the transactions. In support of the contentions, learned counsel placed reliance on the decision of the Apex Court in a case of Devendra and others V. State of Uttar Pradesh and another reported in (2009)7 SCC 495 paragraph 24 as said: “ ….. It is now well settled that the High Court ordinarily exercise its jurisdiction under Section 482 of the Code of Criminal Procedure if the allegations made - 4 - in the first information report, even if given face value and taken to be correct in their entirety, do not make out any offence. When the allegations made in the first information report or the evidences collected during investigation do not satisfy the ingredients of an offence, the superior courts would not encourage harassment of a person in a criminal court for nothing.” It is further held in paragraph 27 that “ ……… when dispute between the parties constitute only a civil wrong and not a criminal wrong, the courts would not permit a person to be harassed although no case for taking cognizance of the offence has been made out.” 6. Learned counsel for the opposite party no.2 as well as Additional Public Prosecutor in spite of trying their level best could not be able to show anything - 5 - rebutting the assertions and on going through the entire averments made in the complaint petition. I find that no criminal offence is made out for which the proceeding before the court below be permitted to continue. 7. Considering the facts and circumstances, impugned order taking cognizance is quashed in its entirety. Patna High Court Dated : The 3rd November 2010 Rajeev/ N.A.F.R. (Akhilesh Chandra, J.)