CRIMINAL MISCELLANIOUS No.36962 OF 2004 In the matter of an application under section 482 of the Code of Criminal Procedure. 1. TUGNESHWAR NATH KEDIA, son of Late Kedar Nath Kedia, resident of Hospital Road, Belbunwa, Motihari, East Champaran. 2. Dilip Kumar Kedia, son of Late Bhola Nath Kedia, resident of Hospital Road, Belbunwa, Motihari, East Champaran. 3. Sambhu Nath Kedia, son of Raj Kumar Kedia, resident of Hospital Road, Belbunwa, Motihari, East Champaran. 4. Ram Babu Singh, son of Ramchandra Singh 5. Ramchandra Singh, son of Late Raghunandan Singh. Petitioner nos. 4 & 5 resident of Village – Ibrahimpur, P.S. Paharpur, Anchal Paharpur, District – East Champaran. 6. Birendra Singh, son of Late Ram Ratan Rai, Resident of village – Kotwa, P.S. & Anchal – Motihari, District – East Champaran. ----------------- Petitioners. Versus 1. THE STATE OF BIHAR 2. Dr. Md. Safique Alam, Principal, Munsi Singh Mahavidyalaya, Motihari, East Champaran. -------------Opposite Parties. For the petitioners : Shri Y.V. Giri, Sr. Adv. Shri Raju Giri, Adv. Shri Snjeev Kumar, Adv. Shri Vikas Ratan Bharti, Adv. Shri Pranav Kumar, Adv. For the State : Shri 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 petitioners and learned Additional Public Prosecutor for the State. None turned up on behalf of the opposite party no.2 the complainant before the court below. 2. By filing supplementary affidavit, the petitioners have produced copy of plaint of Title Suit No. 338/2004 filed in 2 the court of 3rd Sub-Judge, Motihari on behalf of complainant against the some of the petitioners. 3. This application under Section 482 of the Criminal Procedure Code has been filed seeking quashing of the order dated 28.09.2004 passed by Sri S.K. Singh, Judicial Magistrate, 1st Class, Sadar Motihari, in Complaint Case No. 170/2004 bearing Trial No. 1912/2004 by which cognizance has been taken for the offences under Sections 147, 148, 380 and 427 of the Indian Penal Code. 4. The opposite party no.2 filed a complaint petition bearing case no. 170/2004 on 29.01.2004 against 7 persons alleging therein that the subject matter of the proceeding of an old building containing eight rooms was used as Post Graduate Hostel of Munsi Singh College, Motihari, right from 1956. On 04.12.2003 at about 2 P.M. complainant the Principal of the college informed by an orderly huge gathering of about 50 persons have been demolishing the roof and taking away the windows, doors etc. and they have kept some of the staff of the college as captive and they also used firing etc. Police was informed but nothing was done and right from 04.12.2003 till 08.12.2003 such illegal work was continued. University authorities and local authorities were informed but all in vain. It is further contended that college authorities recently could know that some forge and fabricated documents have been brought into existence on 01.12.2003 and 04.12.2003 whereas it is in 3 everyone’s knowledge that subject matter of the proceeding i.e. three Kathas of land of Plot no. 30, Khata No. 14, the land of college and such documents have been created just to grab the land of the college. 5. During inquiry, a few witnesses were examined and the court below took cognizance for the offences aforementioned giving rise to the instant case. 6. It is submitted on behalf of the petitioners that the land in question along with the building originally belong to ancestor of petitioner nos. 1 to 3 who had given the lease of land to Motihari Club in the year 1946 for thirty years and thereafter they came in possession and further transferred the same to other petitioners. They denied committing any sort of illegal act as alleged in the plaint. It is also contended that complainant has already filed a Title Suit for declaration of title for recovery of possession etc. including relief of mesne profit. The controversies between the parties are of civil nature so no criminal proceeding should continue. 7. As stated, there is none on behalf of the complainant opposite party no.2. However, learned Additional Public Prosecutor representing the State while supporting the impugned order submitted that there appears no dispute at least on going through the plaint that question of Title etc. is involved, controversies is of civil nature, but at the same time, the learned Additional Public Prosecutor contended that the 4 petitioners had no right to take forcible possession and while taking law in their own hands took away the articles belonging to the complainant. 8. The complaint petition was filed on 29.01.2004 i.e. roughly after two months of the alleged occurrence. No doubt, it is stated that the local authorities as well as authorities of University were informed but the police in spite of getting all information did nothing. At the same time, it is also stated in para 5 onwards that some documents appears to have been executed by the accused persons in order to grab the properties of the institution but in spite of knowing everything the complaint petition is silent about the source of claim over the subject matter of the proceeding by the institution whereas much before passing of the impugned order Title Suit No. 338/2004 appears to have been filed on 06.09.2004 indicates that the institution admits major portion of submission made on behalf of the petitioners such as ownership of ancestor of petitioner nos. 1 to 3 and leasing out to the Club with further assertion that as per terms and conditions of the lease except running of the Club nothing could be done therein. Further the plaint reveals that the institution claimed on the basis of verbal handing over of the Club by the lessee to the college in the year 1956 during the period of lease and even after expiry of the period under lease the College continued its hostel, so as per the plaintiffs complainant, they had perfected their title by virtue 5 of adverse possession etc. and suit was filed seeking the relief for recovery of possession, compensation against the loss of properties besides mesne profit etc. 9. Had all such details been placed before the court holding inquiry? It could have been in position to ascertain the truth by putting related questions to the complainant or other witnesses examined but the complainant for reasons best known to him kept the court in dark and deprived to avail the opportunities to ascertain the truth. 10. Even the averments made in the complaint are sufficient to indicate that by inquiry under section 202 of the Criminal Procedure Code, it was not easy to arrive at actual happenings. In such type of cases wherein repeatedly it is alleged that police authorities right from local to higher, were informed, it was incumbent upon the court either to send the case to concerned police station in the exercise of power under section 156(3) or seek a report from the police under section 210 of the Criminal Procedure Code and thereafter proceed accordingly, but nothing was done. Had all such steps be taken? The truth might have come and appropriate order could have been passed. 11. Considering the facts and circumstances and nature of controversies between the parties, impugned order is hereby quashed and court below is directed to seek copy of the plaint of Title Suit No. 338/2004 from the complainant and on 6 such filing/production, pass appropriate order in the light of observations made above. Accordingly, this application stands disposed of. Patna High Court Date : The 16th August, 2010 Rajeev/ (Akhilesh Chandra, J.)