1 CRIMINAL MISCELLANEOUS No.7823 OF 2001 ------- In the matter of an application under section 482 of the Code of Criminal Procedure. ------- NAHID USMANI wife of Md. Nehal, daughter of Hannan Mallick, resident of village-Adsar, P.S.-Jamui, Dist.-Jamui ….. ……Petitioner Versus 1.STATE OF BIHAR 2.Sudama Devi wife of late Baiju Paswan, resident of Adsar, P.S. & Dist.-Jamui …… …..Opp.Parties -------- For the petitioner: Mr.Alamdar Husain Mr.Subodh Kumar Mr.Firoz Shamim For Opp.Party No.2 : Mr.Amar Prakash For the State: Mrs. Indu Bala Pandey, A.P.P. ------- P R E S E N T THE HON'BLE MR. JUSTICE RAKESH KUMAR -------- Rakesh Kumar,J. The sole petitioner, while invoking inherent jurisdiction of this court under section 482 of the Code of Criminal Procedure, has prayed for quashing of an order dated 20.12.2000 passed by Judicial Magistrate, Ist Class, Jamui in Complaint Case No.220C of 1999. By the said order, the learned Magistrate has rejected the discharge petition filed on behalf of the petitioner. 2. Short fact of the case is that opposite party no.2 filed a petition in the court of Chief Judicial Magistrate, Jamui which was registered as Complaint Case No.139C of 1998 alleging therein that the petitioner in connivance with one Satyawan Paswan got the land of the complainant executed in her favour. The description of the land was mentioned at the foot of the complaint petition. For disposal of the present petition, it is not necessary to give details of the land. After filing of the complaint petition it 2 appears that the dispute in between the parties was settled outside the court and, as such, a petition was filed on behalf of opposite party no.2, which has been annexed as annexure-5 to the petition, in the court of Judicial Magistrate, Ist Class, Jamui wherein it was stated that the complainant was not interested to proceed with the case and, accordingly, on 14.9.1998 the complaint petition was dismissed under section 203 of the Code of Criminal Procedure. A typed copy of the order dated 14.9.1998 has been brought on record as annexure-6 to the petition. Subsequent to rejection of earlier complaint petition, the complainant-opposite party no.2 again filed a petition before the Chief Judicial Magistrate, Jamui which was registered as Complaint Case No.220C of 1999. In the case after conducting enquiry, the learned Magistrate took cognizance of the offences and the complainant was examined before charge. Subsequently, a petition was filed on behalf of the petitioner for her discharge which was rejected by the impugned order i.e. order dated 20.12.2000 passed by Sri Udai Bhan Dwivedi, Judicial Magistrate, Ist Class, Jamui. 3. Aggrieved with the order of cognizance, the petitioner approached this court by filing the present petition which was admitted on 29.4.2003. Before admission of the present petition, on 4.12.2001 while issuing notice to opposite party no.2, this court directed that till the next date of hearing, further proceeding in Complaint Case No. 220C of 1999 pending in the court of Judicial Magistrate, Ist Class, Jamui, shall remain stayed and order of stay is still continuing. 3 4. Mr.Alamdar Hussain, learned counsel for the petitioner, while challenging the order of rejection of discharge petition as well as for quashing of the entire proceeding, submits that the petitioner had genuinely purchased the land in question from co-sharer of the complainant-opposite party no.2. It was further submitted that while filing complaint petition at initial stage i.e. Complaint Case No. 139 of 1998 the complainant in a designed manner had suppressed the fact that the petitioner had purchased the land in question from her co-sharer. It was submitted that suppression of this fact was sufficient to reject the complaint petition itself. Any how after good sense prevailed, the complainant filed a petition in Complaint Case No.139 of 1998 whereby the complainant intimated that with the help of villagers the dispute was settled and she desired not to pursue the case. Subsequently, the complaint petition was rejected on 14.9.1998. It was submitted that once for the same charge and same allegation a complaint was rejected by the learned Magistrate, on the same and similar charge, second complaint was not required to be entertained. Learned counsel for the petitioner has emphasized that in any event on an allegation of purchasing the land from co-sharer of the complainant, the petitioner cannot be held responsible for commission of any of the offences for which complaint was filed. It was further submitted that though it was alleged in the complaint petition that the petitioner had committed forgery in getting the sale deed executed in her favour through accused no.2 in the year 1996, till date the complainant had not take any step to get the sale 4 deed declared void by filing any suit before the court of civil jurisdiction. Learned counsel for the petitioner submits that the present case can be considered to be a dispute of civil nature and for which the complainant was not entitled to approach the court of criminal jurisdiction. Learned counsel for the petitioner has heavily relied upon a judgment of the apex Court reported in 2009(4) PLJR (SC) 99 (Md.Ibrahim and others Vs. State of Bihar and Anr.), which says that criminal court should ensure that proceedings before it are not used for settling scores or to pressurize parties to settle civil disputes. Learned counsel has referred specifically paragraph 7 of the judgment. It would be better to quote the same which is as follows: “Paragraph-7: This court has time and again drawn attention to the growing tendency of complainants attempting to give the cloak of a criminal offence to matters which are essentially and purely civil in nature, obviously either to apply pressure on the accused, or out of enmity towards the accused, or to subject the accused to harassment. Criminal courts should ensure that proceedings before it are not used for settling scores or to pressurize parties to settle civil disputes. But at the same, it should be noted that several disputes of a civil nature may also contain the ingredients of criminal offences and if so, will have to be tried as criminal offences, even if they also amount to civil disputes (See: G. Sagar Suri Vs. State of U.P. 2000(2) SCC 636, and Indian Oil Corporation Vs. NEPC India Ltd, 2006(6) SCC 736).” 5 5. Learned counsel for the petitioner submits that so far as petitioner is concerned, no offence is made out in either of the sections for which order of cognizance was passed. Learned counsel has referred to a judgment of Hon’ble Supreme Court reported in (2009)7 SCC 495 (Devendra and Others Vs. State of U.P. and Another). He referred paragraphs 14, 16 and 27 of the said judgment. It is better to quote the said paragraphs: “Paragraph 14: It was, however, submitted that by reason of execution of a deed of sale claiming title over the property, which the appellants were not entitled to, the respondent complainant had been cheated. It is difficult to accept the said contention. The appellants had not made any representation to respondent no.2. No contract and/or transaction had been entered into by and between the complainant and the appellants. “Paragraph 16: In V.Y.Jose v. State of Gujarat this court opined : (SCC p.83, para 14) “14. An offence of cheating cannot be said to have been made out unless the following ingredients are satisfied: (i) deception of a person either by making a false or misleading representation or by other action or omission; (ii)Fraudulently or dishonestly inducing any person to deliver any property; or to consent that any person shall retain any property and finally intentionally inducing that person to do or omit to do anything which he would not do or omit. For the purpose of constituting an 6 offence of cheating, the complainant is required to show that the accused had fraudulent or dishonest intention at the time of making promise or representation. Even in a case where allegations are made in regard to failure on the part of the accused to keep his promise, in the absence of a culpable intention at the time of making initial promise being absent, no offence under section 420 of the penal Code can be said to have been made out.” It is, therefore, evident that a misrepresentation from the very beginning is a sine qua none for constitution of an offence of cheating, although in some cases, an intention to cheat may develop at a later stage of formation of the contract.” “Paragraph 27: Mr. Das submits that a wrong committed on the part of a person may be a civil wrong or a criminal wrong although an act of omission or commission on the part of a person may give rise to both civil action and criminal action. A distinction must be made between a civil wrong and a criminal wrong. 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. Accordingly, it has been submitted that no offence is made out as alleged in the complaint petition. 7. Learned counsel for the petitioner has further referred to a judgment of Hon’ble Supreme Court reported in (2009)3 SCC 78 (V.Y.Jose and another Vs. State of Gujarat and 7 another). Learned counsel has particularly referred to paragraphs 23 and 28 of the judgment which are as follows: “Paragraph 23: Section 482 of the Code of Criminal Procedure saves the inherent power of the court. It serves a salutary purpose viz. a person should not undergo harassment of litigation for a number of years although no case has been made out against him. “Paragraph 28: A matter which essentially involves dispute of a civil nature should not be allowed to be the subject-matter of a criminal offence, the latter being not a short cut of executing a decree which is non-existent. The superior courts, with a view to maintain purity in the administration of justice, should not allow abuse of the process of court. It has a duty in terms of section 483 of the Code of Criminal Procedure to supervise the functionings of the trial courts.” 8. Learned counsel for the petitioner emphasizing on the aforesaid paragraphs submitted that the case in hand is a fit case for exercising power under section 482 of the Code of Criminal Procedure. 9. On the aforesaid grounds it has been prayed to quash the order of rejection of discharge petition. 10. Mr.Amar Prakash, learned counsel appearing on behalf of opposite party no.2, has vehemently opposed the prayer of the petitioner. Learned counsel has argued that the petitioner is wife of a very influential and powerful person of the locality. It was submitted that while earlier complaint petition was filed by the 8 complainant the accused persons pressurized the complainant to withdraw the complaint petition and also gave false assurance for settling the dispute and, thereafter, a petition was filed by the complainant for withdrawal of the complaint petition and the complaint petition was rejected. After rejection of the complaint petition, the accused persons refused to act upon this earlier assurance and, thereafter the complainant was constrained to file second complaint petition. It was submitted by learned counsel for the opposite party that in law there is no restriction in filing of a second complaint even on same and similar allegation. In the present case situation warranted to file second complaint petition. He has submitted that the complainant had categorically stated that this petitioner had asked the complainant that if she withdraws the complaint petition, her land will be re-conveyed to the complainant and due to said false assurance given by the petitioner the complainant had withdrawn the earlier complaint petition. Learned counsel has further referred to the statement of the complainant recorded on solemn affirmation in the present case wherein she had categorically stated that the accused persons are very powerful and they had threatened the complainant not to produce any witness and not to proceed with the case. It was also stated that the accused persons had stated that if the complainant proceeds with the case, she will face consequences. It was also submitted that the complainant is a poor widow lady and her co-sharer namely, Satyawan Paswan in connivance with the petitioner had transferred the land of the complainant to the petitioner. Accordingly, it has 9 been prayed to reject the present petition. 11. I have also heard Mrs. Indu Bala Pandey, learned Addl. Public Prosecutor appearing on behalf of the State. 12. So far as application of section 420, 467 and 468 of the Indian Penal Code is concerned, the materials indicate that the complainant had alleged that accused no.2 though was not having any title or possession over the land of the complainant had transferred the same to the petitioner and, as such, if accused n0.2 had committed an offence for transferring the land in question to the petitioner, the petitioner cannot be absolved from the charges leveled against the vendor. Moreover, this is not the stage for this court to examine those things. The application of penal provisions can be considered at the time of framing of charge. If the charge is framed which is not based on record, the same can be questioned at an appropriate stage. In the present case, discharge petition has been rejected by the learned Magistrate. In respect of judgment in the case of V.Y.Jose (supra), this court is of the view that it is not in dispute that power under section 482 of the Code of Criminal Procedure is available to prevent the abuse of process of the court. It is also true that if on an allegation there are two remedies available to the aggrieved person i.e. civil and criminal, both can be availed. In a case reported in (1999)8 SCC 686 (Trisuns Chemical Industry Vs. Rajesh Agarwal and others), the Hon’ble Supreme Court has held that criminal prosecution cannot be throttled merely because civil proceeding is also maintainable. 13. Besides hearing learned counsel for the parties, I 10 Patna High Court The 12th August 2010 Md.S./NAFR have also perused the materials available on the record. It is true that in this case second complaint was not required to be filed on same and similar allegation but keeping in view the fact that the case has already reached to the stage of charge and the learned Magistrate, after examining the discharge petition in detail, has rejected the discharge petition, it would not be proper for this court to interfere with the impugned order, that too, while hearing a petition under section 482 of the Code of Criminal Procedure. Time without number it has been reiterated that power under section 482 of the Code of Criminal Procedure is to be exercised in exceptional and rarest of the rare cases. This court is of the view that the present case is not an exceptional case and, as such, it is advisable for this court to refrain from interfering with the impugned order. 14. In the result, this petition stands rejected. 15. In view of rejection of this petition, interim order of stay dated 4.12.2001 stands automatically vacated. 16. Let a copy of this order be sent to the court below forthwith. (Rakesh Kumar,J.)