CRIMINAL MISCELLANEOUS NO.23301 of 2001 ---- In the matter of an application under Section 482 of the Code of Criminal Procedure,1973. ---- 1. SHAMA ALAM 2. AFTAB ALAM @ KARMCHARI 3. TUNTUN ALAM 4. MANNU ALAM ALL SONS OF MD. ALAM 5. SAGIR ALAM SON OF ILTAF MIAN 6. NANHAY @ NAZIR ALAM SON OF SAGIR ALAM 7. ANIS ALAM SON OF SHAMA ALAM 8. SUTTU MIAN SON OF SALMAN MIAN ALL RESIDENT OF VILLAGE SARYA NARANDER, P.S. BARAULI, DISTRICT GOPALGANJ. 9. ISTAKHAR @ MUNNA MIAN RESIDENT OF VILLAGE MAYA HALIM TOLA, P.S. BARHARIA, DISTRICT SIWAN. ... ... PETITIONERS. Versus 1. THE STATE OF BIHAR 2. MANAN SHARMA SON OF LATE NAULI SHARMA, RESIDENT OF VILLAGE SARYA NARANDER, P.S. BARAULI, DISTRICT GOPALGANJ. ... ... OPPOSITE PARTIES. ---- For the Petitioners : M/S Farooque Ahmad Khan, Adv. Sufiyan, Adv. For O.P. No.2 : Mr. Ashok Kumar Jha, Adv. ---- P R E S E N T THE HON’BLE MR. JUSTICE RAKESH KUMAR ---- Rakesh Kumar,J. The present petition under Section 482 of the Code of Criminal Procedure has been filed by nine petitioners against the order dated 27.7.2001 passed by Sub Divisional Judicial Magistrate, Gopalganj in Complaint Case No.477 of 2000, Tr. No.1096 of 2001, whereby the learned Magistrate has rejected the discharge 2 petition filed on behalf of the petitioners. 2. Short fact of the case is that opposite party no.2 filed a complaint in the court of Chief Judicial Magistrate, Gopalganj, which was numbered as Complaint Case No.477 of 2001 against aforesaid petitioners for committing offence under Sections 468, 471 and 477 of the Indian Penal Code. It was disclosed by the complainant that on 7.11.2001, all the accused persons formed an unlawful assembly and came to the plot appertaining to Khata No.156, Survey No.2032, measuring 2 katha 3 dhur with a view to grab the land and started to remove hut of the complainant. After hearing, son of informant also arrived at the place of occurrence. The accused persons were armed with lathi, bhala etc. The son of the informant tried to restrain the accused persons. Thereafter, Accused No.1 (petitioner no.1) and his two sons started assaulting the complainant and his son by fist and slaps and threw the planee (hut) and also removed bamboos and bricks. The complainant 3 suffered a loss of about Rs.20,000/-. The complainant, in respect of the said occurrence, filed a case in the court of Chief Judicial Magistrate. The learned Chief Judicial Magistrate, under Section 192(1) of the Code of Criminal Procedure, transferred the record of the case to the court of learned Sub Divisional Judicial Magistrate for its enquiry and disposal in which learned Sub Divisional Judicial Magistrate, by its order dated 25.11.2000, took cognizance of offence under Sections 147, 148, 323, 379 and 427 of the Indian Penal Code and summoned the accused persons. Thereafter, on 1.2.2001, all the accused persons produced a certified copy of sale deed dated 22.1.1926, which was purported to be executed by grand father of complainant namely, Kishun Lohar in the name of Sheikh Amin Mian. It was alleged by the complainant that the accused persons, with a view to fraudulently grab the properties of the complainant, had filed forged certified copy in the court and as such on the prayer made by the complainant, the said certified copy was seized by the 4 court. Thereafter, the complainant sent his advocate Shri Arun Kumar Sinha to registration office Chapra for bringing certified copy of the said document. On 13.2.2001, learned advocate of the complainant Shri Arun Kumar Sinha filed an application vide Application No.1978 dated 13.2.2001 for obtaining certified copy of the said document. However, same was returned after making endorsement on the said application that perusal of the cover shows the document as doubtful and as such no certified copy can be issued. On perusal of the cover of the Volume-3, Pages 278 to 279, it appears that some documents prepared in the script of Urdu was got removed by using ink remover and as such it was alleged by the complainant that all the accused persons, after committing forgery, had produced certified copy of the document in the court. The complainant further alleged in the complaint petition that this fact has come to the notice that accused persons, after making payment of huge money to some of the employees of the registration office, had brought the said 5 volume out of the office and by using ink remover in place of writing in Urdu script, after removing the same, it was written in Hindi (Kaithi). Even signature put within the seal was also got removed by using ink remover and was written as Kishun Lohar, which was apparent by the naked eyes. The learned Sub Divisional Judicial Magistrate had summoned Book No.1, Vol.-3 and same was got exhibited. It was alleged that the accused persons had intentionally committed forgery in the record and produced the same in the court. On aforesaid allegation, complaint was filed in the court of Chief Judicial Magistrate and the learned Chief Judicial Magistrate, under Section 192(1) of the Code of Criminal Procedure, transferred the said complaint to court of Sub Divisional Judicial Magistrate for its enquiry and disposal. During enquiry, the complainant’s statement on oath was recorded and besides this two witnesses were produced by the complainant in support of the complaint case. Amongst witnesses, one of the witnesses was handwriting and finger print expert. The learned Sub 6 Divisional Judicial Magistrate, after conducting enquiry, was prima facie, satisfied that offence under Sections 471 and 468 of the Indian Penal code was made out against accused persons and as such by order dated 31.3.2001 directed for summoning the accused persons. At the stage of trial, a petition for discharge was filed on behalf of all the petitioners. However, the learned Sub Divisional Judicial Magistrate, by its order dated 27.7.2001, was satisfied with the material for framing of the charge for offence under Sections 468 and 471/34 of the Indian Penal code and rejected the discharge petition and fixed the date to 16.8.2001 for charge. 3. Aggrieved with the order dated 27.7.2001, the petitioners approached this Court by filing the present petition. On 24.1.2002, while issuing notice to opposite party no.2, this Court directed that till the next date of hearing, further proceeding in Complaint Case No.477 of 2000 pending in the court of Sub Divisional Judicial Magistrate, Gopalganj shall remain stayed. Thereafter, on 9.5.2003, the case 7 was admitted for hearing and it was directed that in the meantime, interim order dated 24.1.2002 shall continue and order of stay is still continuing. 4. Mr. Farooque Ahmad Khan, learned counsel appearing on behalf of the petitioners, at the very outset, has argued that in the facts and circumstances of the present case, either the Registrar, Chapra was entitled to file complaint or the learned Sub Divisional Judicial Magistrate, Gopalganj was competent to file a complaint. Since the allegation was mainly purports to have been committed in the registry office at Chapra and it was filed in the court of Sub Divisional Judicial Magistrate at Gopalganj, it was either the Sub Divisional Judicial Magistrate or the Registrar, Chapra Registry Office was competent to file a complaint for an offence committed in a proceeding before the court of learned Sub Divisional Judicial Magistrate at Gopalganj. It was further submitted that petitioners cannot be held guilty for an offence of producing a certified copy of the sale deed in the 8 court due to the reason that the said document shall be presumed as genuine in view of Section 79 of the Evidence Act. On the aforesaid fact, it was submitted that continuance of proceeding in the present case is an abuse of the process of the court and as such it is a fit case for exercising inherent jurisdiction in favour of the petitioners. 5. Shri Ashok Kumar Jha, learned counsel appearing on behalf of opposite party no.2, has strongly opposed the prayer of the petitioners. It was submitted by Shri Jha that a forged certified copy of sale deed was produced by the aforesaid accused persons in a proceeding i.e. in a complaint case, which was filed by the opposite party no.2 against the petitioners. The said forged certified copy was produced before the Sub Divisional Judicial Magistrate in a criminal proceeding and immediately after noticing that said document was prima facie doubtful and forged, a prayer was made by the opposite party no.2 for seizure of said document, which was allowed by the learned 9 Sub Divisional Judicial Magistrate and thereafter, matter was got enquired and the fact surfaced that even in Register Vol.3 at Pages 278 to 279 of the registry office, Chapra, interpolation was made and as such the complainant filed the present complaint before the court of Chief Judicial Magistrate and the learned Chief Judicial Magistrate transferred the case to the same court where the accused persons had produced forged document. After conducting thorough enquiry, the learned Magistrate took cognizance of the offence and when the case reached to the stage of charge, with a sole object to delay commencement of trial, petition was filed for discharge. The learned Magistrate, by the impugned order, has rightly rejected the discharge petition and fixed the case for charge. In this case, order of cognizance was passed on 31.3.2001. Accordingly, the learned counsel for opposite party no.2 has prayed to reject the present petition. 6. Besides hearing learned counsel for the parties, I have perused the materials available on record. The plea of 10 territorial jurisdiction, which was raised by Mr. Khan, learned counsel for the petitioners is not sustainable and is fit to be rejected in view of the fact that the petitioners, in the present case, had produced a forged certified copy of sale deed in the court of Sub Divisional Judicial Magistrate to strengthen their defence in a criminal case initiated on the complaint filed by the opposite party no.2. Immediately after noticing the fact that a forged document was filed, the complainant got the matter enquired and he came to know that even in the record of the registry office interpolation was made by some of the accused persons and thereafter, the forged certified copy was produced. The court is of the opinion that in such situation, the learned Sub Divisional Judicial Magistrate, before whom such forged document was filed, has rightly proceeded with the case. The initiation of proceeding, in the facts and circumstances of the present case, cannot be interfered on the ground that complaint was not filed by the Registry office of the Chapra 11 Registry where interpolation was made. In the present case, case would have been initiated either at the Chapra court or the court where proceeding is pending i.e. Gopalganj. So far as argument of Mr. Khan regarding presumption of a certified copy of a document as genuine is concerned, in the present case, there is allegation by the complainant that accused persons had paid heavy amount to some employees of the registry office of Chapra for bringing out the register from the registry office and outside the office interpolation was got done at pages 278 to 279 in Vol.3. At the moment, this Court is not recording any finding regarding the merit of the case, but prima facie the court is of the opinion that circumstances are enough to establish that the court of learned Sub Divisional Judicial Magistrate, Gopalganj is having jurisdiction to proceed with the present complaint i.e. Complaint Case No.477 of 2000. 7. In view of the facts and circumstances, the court is of the opinion that the present case is not a case, which 12 can be categorized as an exceptional or rarest of rare case warranting exercise of inherent jurisdiction in favour of the petitioners. Time without number, it has been held that at the stage of charge, only a prima facie case is to be seen. At this stage, it is also not permissible to conduct a roving enquiry. 8. In view of the facts and circumstances, I do not find any ground for interference with the order dated 27.7.2001 passed by learned Sub Divisional Judicial Magistrate, Gopalganj in Complaint case No.477 of 2000, Tr. No.1096 of 2001 and as such the petition stands rejected. 9. In view of rejection of this petition, interim order of stay stands automatically vacated. 10. Let a copy of this order be sent to the court below forthwith. PATNA HIGH COURT Dated 7th September,2010 N.A.F.R./N.H. ( Rakesh Kumar,J.)