IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.43327 of 2007 1. BIJAY KRISHNA PRASAD, SON OF LATE YEEVI PRASAD. R/O VILLAGE-PAHIHARA, P.S. GURUA, DISTRICT-GAYA. 2. SARYU PRASAD, SON OF LATE SUKHLAL MAHTO. 3. REENA KUMARI, W/O ARUN KUMAR. 4. ARUN KUMAR @ MAHTO, S/O SARYU PRASAD. 5. BHAGWAN PASWAN, S/O LATE SARDAR PASWAN. 6. MAHESH THAKUR, S/O VISHESHWAR THAKUR. ALL R/O VILLAGE-JHIKATIA KALA, P.S. EMAMGANJ, DISTRICT-GAYA. …………………………………………………………PETITIONERS. Versus 1. THE STATE OF BIHAR. 2. ASHOK KUMAR SINGH, S/O RAM LAL MAHTO, R/O VILLAGE- JHIKATIA, P.S. IMAMGANJ, DISTRICT-GAYA. …………………………………………………OPPOSITE PARTIES. ----------- For the Petitioners : M/s. Sanjeev Kumar and Vishwanand Upadhyay, Advocates. For the State : Dr. Mayanand Jha, A.P.P. For O.P. No.2 : M/s. Surendra Kumar Singh, Senior Advocate & Praveen Prakash, Advocate. -------------- O R D E R Six out of the seven persons arrayed as accused in Complaint Case No.113 of 2003 have preferred this application for quashing of the order dated 13.8.2007 passed in Criminal Revision No.104 of 2003 by the learned Sessions Judge, Gaya, whereby he has been pleased to set aside the order dated 30.7.2003 passed by Sri B.B. Mishra, Judicial Magistrate, First Class, Gaya, in the aforesaid complaint case which he had dismissed under Section 203 Cr.P.C. The facts giving rise to the present application is that Ashok Kumar Singh, impleaded as O.P. No.2 herein, had filed the complaint - 2 - case inter alia alleging that accused nos.1 and 3 are his agnates and that Khirodhar Mahto, his grand father, had purchased 2 acres 43 decimals of land appertaining to khata no.40 through a registered sale deed on 3.3.1936. It was stated that he came in peaceful possession over the same and he was granted rent receipts by Zamindar also. It was alleged that the aforesaid plot no.229 had been carved out in different plots and survey purchas have been granted in favour of his father and uncle who after the death of Khirodhar Mahto came in peaceful possession over the land in question. It was alleged that family property was partitioned between the two sons of Khirodhar Mahto, namely, Sukhlal and Ramlal and subsequently the same was partitioned amongst the four sons of Sukhlal Mahto also. It was alleged that the father of the complainant, Ramlal Mahto, got 1 acre 28 ½ decimals of plot no.229 and 1 acre 29 ½ decimals of land was allotted to Sukhlal Mahto which was partitioned amongst his four sons equally and they came in possession over their respective shares. It is further alleged that accused no.1 with the help of other co-sharers fraudulently and with bad intention got executed a registered sale deed in favour of accused no.3, his daughter-in-law, on 11.12.2002 in respect of plot nos.855 and 857 of old plot no.229. It was alleged that accused no.1 had only 41 decimals of land in his share in plot no.855 and had no share in plot no.857. It is alleged that the complainant learnt about it on 31.1.2003 and on making inquiry about the matter he got confirmed information from the Sub Registry Office at Tekari regarding the transfer whereupon he went to the local police who did - 3 - not cooperate in registering a case. The learned Magistrate having held an inquiry under Section 202 Cr.P.C. dismissed the complaint under Section 203 Cr.P.C. as the same, in his opinion, appeared to be civil in nature and the criminal court was not in a position to grant any relief to him. The complainant challenged the order of the magisterial court in Criminal Revision No.104 of 2003 and the learned Sessions Judge by order dated 13.8.2007 set aside the order of the learned Magistrate on a finding that the evidence led on behalf of the complainant was to the effect that in spite of separation in the joint family the accused/O.P. in clear cut violation of such family configuration and extent of share so allotted to their fathers went to the extent of creating a sale deed of the land already allotted in the share of the complainant to his own daughter-in-law so much so that even the three brothers of O.P./accused also supported such factum of partition and the evidence so led on behalf of the aggrieved complainant by producing three full brothers of O.P. who have fully supported the factum of family partition which would be manifest from the genealogy so furnished in the complaint petition by the complainant and so in that view of the matter there was no occasion and reason for the learned court below to have disbelieved such statement of those three brothers of O.P. No.2, Arun Kumar, when they have no interest to depose against their full brother and in favour of their cousin brother. The learned Sessions Judge further held that such move on the part of the accused/O.P. No.2 was itself indicative of the fact that he had evil design from the - 4 - beginning and that is why he went on to create the document in respect of the land which admittedly did not belong to him in the family partition in favour of his own daughter-in-law which was wholly unwarranted in view of the fact that no consideration amount could be supposed to have been passed or paid by the deponent , daughter-in-law to her own father-in-law nor there was any occasion for the father-in-law to execute such sale deed. This by itself, according to the learned Sessions Judge, reveals evil design on the part of the accused but the learned Magistrate simply dismissed it treating it as a civil dispute. I have had the occasion to peruse the respective order of the learned Magistrate as also of the learned Sessions Judge and I am of the confirmed opinion that the order of the learned Sessions Judge does not suffer from any illegality or impropriety so as to call for any interference by this Court. The learned Sessions Judge having dealt with the matter in detail has rightly come to the conclusion that there were traces of evil design or mens rea on the part of accused no.1 in getting a sale deed prepared in favour of his daughter-in-law in respect of lands which had not fallen into his share in the family partition. Where mens rea to cheat or evil design in doing an act is clearly made out a criminal prosecution for the same is maintainable notwithstanding the fact that the dispute appears to be civil in nature. It is the mens rea or evil design of the accused which assumes prime importance in computing whether there is any criminal liability involved although the matter may be of civil dispute and where such - 5 - mens rea to cheat or evil design is prevalent the court is entitled to fasten criminal liability. The law in this respect is well settled by several decisions of the Apex Court as also this Court. Accordingly, I find no illegality or impropriety in the impugned order passed by the learned Sessions Judge and uphold the same. Accordingly, there being no merit in this application, the same is dismissed. (Abhijit Sinha,J) Patna High Court, Patna. Dated: The 23rd of January, 2009. Pradeep Srivastava/A.F.R.