IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.16635 of 2007 1. MD. SALIM , son of Late Md. Idris 2. Munna, son of Md. Shahid Both are residents of village-Shrifganj, P.S.Katihari(M),District-Katihar ------------------- Petitioners Versus 1. THE STATE OF BIHAR 2. Md. Majjaque , Son of Md. Suleman,resident of village-Shrifganj Kant Nagar, P.S.Katihar and District-Katihar ----------- Opp.Parties. ----------- For the petitioners : M/S Bhola Prasad and Swapnil Kr.Singh, Advocates For the State : Mr. Jharkhandi Upadhaya, A.P.P. For Opp.Party no.2 : None. ------------ O R D E R The two petitioners arrayed as accused in Complaint Case no.1795 of 2004 have prayed for the quashing of the entire criminal proceeding arising therefrom including the order dated 3.7.2005/4.7.2005 passed therein by Sri Md. Gayasuddin, Judicial Magistrate, First Class, Katihar, whereby he has taken cognizance against the petitioners for commission of offence punishable under Section 420 I.P.C. and has summoned them. The prosecution case is founded on the complaint petition filed on 3.9.2004 by the complainant, one Md. Hajjaque, impleaded herein as Opp.Party no.2, stating therein, inter alia that 1.31 acres of land appertaining to Khata no.924(M) , Plot no.413 (M) was initially recorded in the name of one Md. Samtullah of Sarifganj who died leaving behind two sons: Md. Idris , the father of petitioner no.1, and - 2 - Md. Suleman, the father of the complainant, and in due course an amicable partition took place between the two brothers and each of them came in possession of 65 ½ decimals of land left behind by the deceased father. It is alleged that Md. Idris sold about 34 ¼ decimals of land to different persons and out of the remaining lands measuring 31 ¼ decimals an area of 21 decimals owned and possessed by the complainant’s father, the co-sharer, had been sold by the father of accused no.1 by executing sale deed no.2689 dated 25.2.2003 in favour of his son, accused no.1, Md.Salim, in which petitioner no.2 was the attesting witness. It is also alleged that the said sale deed also contained the signature of the father of the complainant, Md. Suleman, which was apparently false and fabricated since Md. Suleman was ailing for the past 2 ½ years and was not in a condition to go to the Sub-registration office. It is also alleged that at about 8.30 A.M. in the morning of 24.8.2004, the accused persons along with lathials tried to dispossess the complainant by cutting the bamboo clumps owned and possessed by the complainant on the basis of the sale deed executed on 25.2.2004. The complainant claimed that he had been cheated by the accused persons who had committed a substantive offence and deserved to be punished. It appears that on consideration of the materials coming forth on record in course of the enquiry under Section 202 Cr.P.C , the learned Magistrate concluded that a prima facie case was made out against the petitioners Denying the purported story of amicable partition between - 3 - the brothers having taken place in respect of the ancestral lands, it was submitted that the lands in question remained recorded in the Khatiyan in the name of the father, Md. Samtullah. On the contrary, it was alleged that in fact it was the father of Opp.Party no.2, Suleman Mian who sold 8.4 Kerry of land out of his portion in favour of Md. Shamshul Haque and others on 31.3.2001 for which there is no any dispute between the parties and, as a matter of fact, after execution of sale deed in favour of petitioner no.2 rent receipts were granted in favour of petitioner no.1 after verification by the Circle Officer. Several other points have been raised by the learned counsel for the petitioners, none of which appear to be relevant for the purpose. It was finally submitted that if the allegations made in the complaint petition are taken at their face value, no case of criminal liability is made out. Although the Opp. Party no.2 was duly served with notice, he has chosen not to appear and contest the application nor has any show cause/ counter affidavit been filed on his behalf. From a plain understanding of the submissions advanced by the learned counsel for the petitioners it appears that valiant efforts were attempted to prove that the lands in question were validly and legally transferred in the name of petitioner no.2. The bona fide of such transfer cannot be judged in a proceeding under Section 482 Cr.P.C. and has to be proved at a full dressed trial by leading cogent evidence in that regard. Admittedly, on the filing of the complaint petition, an enquiry was held under Section 202 Cr.P.C.. No doubt, one of the - 4 - objects behind an enquiry under Section 202 Cr.P.C. is to enable the Magistrate to scrutinize carefully the allegations made in the complaint with a view to prevent a person named therein as accused from being called upon to face an obviously frivolous complaint. There is also another object behind this provision and that is to find out what materials are available to support the allegation made in the complaint. It is the bounden duty of the Magistrate while making an enquiry to elicit all facts not merely to protect the interest of an absent accused but also with a view to bring to book a person or persons against whom grave allegations are made. Whether the complaint is frivolous or not has at that stage, necessarily to be determined on the basis of the materials placed before him by the complainant. Whatever, the defence, the accused may have, can only be inquired into at the trial. As held in the case of Chandradeo Vrs. Prokash Chandra (AIR 1963 SC 1430), at the enquiry under Section 202 Cr.P.C., the Magistrate has to satisfy himself that there is sufficient ground for proceeding against the accused. In order to come to this conclusion, he is entitled to consider the evidence taken by him or recorded by him at the enquiry but he is not entitled to rely upon any material besides this. In the instant case, the complainant has made out a plausible case of being cheated inasmuch as lands falling within his share had been sold out by petitioner no.1 in favour of his son, petitioner no.2, by fabricating documents and adopting fraudulent means. As held in - 5 - the case of Kamladevi Agrawal Vrs.State of West Bengal reported in (2002) 1 SCC 655 the revisional or inherent power of quashing the proceedings at the initial stage should be exercised sparingly and only when the allegations made in the complaint or the F.I.R., even if taken at their face value and accepted in its entirety do not prima face disclose the commission of an offence. Disputed and controversial facts cannot be made the basis for the exercise of the jurisdiction under Section 482 Cr.P.C. Even otherwise, if the submissions advanced by the learned counsel for the petitioners is accepted in its entirety, the same would be a plausible defence which again cannot be tested on the touchstone of truth at this stage. That being the position and in view of the discussions made above I find no merit in this application which is accordingly dismissed. ( Abhijit Sinha, J ) Patna High Court, Patna Dated : the 26th February,2009 Nawal Kishore Singh/A.F.R.