Criminal Miscellaneous No.26489 OF 1999 ------ In the matter of an application under section 482 of the Code of Criminal Procedure. ------ JITENDRA PRASAD son of Nandu Prasad, Resident of Jamaluddinchak, P.S.-Danapur, District-Patna .…… .….. Petitioner Versus 1.STATE OF BIHAR 2.Lalita Devi wife of Brijnandan Rai, Resident of village-Chaurasi, P.S.-Maner, Dist.-Patna, presently residing at 113, Medical Colony, Khagaul, Dist.- Patna …… …. …Opp.Parties. ------ For the petitioner; Mr. Sidhdharth Harsh For the State: Mr. Lala Kailash Bihari Prasad,Addl.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 order dated 1.12.1998 passed by Shri A.J. Srivastava, Judicial Magistrate, Ist Class, Danapur in Complaint Case No.134 (C) of 1995/Trial No.396 of 1999 whereby the learned Magistrate has allowed the petition filed by the complainant under Section 319 of the Code of Criminal Procedure and directed for summoning the accused to face trial along with other two accused persons. 2. Short fact of the case is that on 19.5.1995 a complaint petition was filed by opposite party no.2 vide Complaint Case No.134 (C) of 1995 against three accused persons including this petitioner for the offences under Sections 406, 120B, 167, 468 and 420 of the Indian Penal Code. It was alleged in the complaint case that opposite party nos.1 and 2 in - 2 - presence of this petitioner had taken an advance of Rs.1,25,000/- for transferring two kathas of land of Plot No.469 to opposite party no.2. The land was earlier in the name of Bimla Devi wife of Dasrath Mahto. Both Bimla Devi and Dasrath Mahto have been arrayed as accused nos.1 and 2 in the complaint case. It was alleged in the complaint petition that while the agreement for sale was being entered into between the complainant and the accused Bimla Devi, the petitioner was also present and actively participated at the time of agreement to sell. It was alleged in the complaint petition that after taking advance money, accused Bimla Devi never executed sale deed in favour of complainant. It was further disclosed that repeatedly the complainant persuaded the accused Bimla Devi for executing the sale deed but she on one pretext or the other delayed the matter. Subsequently, the complainant came to know that accused Bimla Devi had already transferred the land in question in favour of the petitioner. Thereafter, the complaint petition was filed against three accused persons including the petitioner. In support of the complaint, during enquiry, witnesses were examined. However, the learned Magistrate vide order dated 16.8.1995 took cognizance of the offence under Sections 406, 465 and 420 of the Indian Penal Code against accused Bimla Devi and Dasrath Mahto. However, the learned Magistrate did not proceed against this petitioner. After number of witnesses were examined during the trial, a petition was filed on behalf of opposite party no.2/complainant on 18.8.1998 under Section 319 of the Code of Criminal Procedure praying therein to summon this petitioner to face trial along with two accused persons. By order dated 1.12.1998, the learned Magistrate allowed the petition and directed for - 3 - summoning the petitioner to face trial along with two accused persons. 3. Aggrieved with the order dated 1.12.1998, the petitioner approached this Court by filing the present petition. The present petition was admitted on 2.3.2000. While admitting the case, this Court had directed that pending disposal of this application, further proceeding in Complaint Case No.134 (C) of 1995/Trial No.396 of 1995 pending in the court of Sri A.J. Srivastava, Judicial Magistrate, Ist Class, Danapur shall remain stayed and order of stay is still continuing. 4. Mr. Sidharth Harsh, learned counsel appearing on behalf of the petitioner, while challenging the order dated 1.12.1998, submits that the order of summoning the petitioner is not sustainable in the eye of law as there was no material indicating commission of offence by this petitioner and, according to the learned counsel for the petitioner, the impugned order is liable to be set aside. Learned counsel has further argued that since after filing of the complaint case and during enquiry, the learned Magistrate was not satisfied for proceeding against this petitioner, by order dated 19.5.1995, the case of the petitioner was dropped by the learned Magistrate. He submits that once the case of the petitioner was dropped by a judicial order, the concerned court was not entitled to further proceed against this petitioner at subsequent stage. Learned counsel for the petitioner has further argued that under Section 319 of the Code of Criminal Procedure, only those persons can be summoned to face trial, who were never made accused. It was argued that since the petitioner was already made accused in the complaint petition and his case was dropped, the petitioner cannot be summoned while exercising power under Section 319 of the Code of - 4 - Criminal Procedure. While referring to the complaint petition, the learned counsel for the petitioner has argued that the petitioner had simply purchased the land in question from the accused no.1 and as such it cannot be said that the petitioner had committed offences under Section 406 or 420 of the Indian Penal Code. It was submitted that neither any amount was entrusted to the petitioner nor he had cheated the complainant and as such the petitioner cannot be prosecuted along with other accused persons for the offence as alleged in the impugned order. Accordingly, he has prayed for quashing of the order dated 1.12.1998 passed by Judicial Magistrate, 1st Class, Danapur in Complaint Case No.134C of 1995. 5. Mr.Lala Kailash Bihari Prasad, learned senior counsel appearing on behalf of the State has opposed the prayer of the petitioner. He, while referring the contents of the complaint petition, submits that there are sufficient materials to indicate that this petitioner actively participated in the crime of cheating. He further submits that during the trial materials were collected to indicate that even prior to entering into an agreement with the complainant, the vendor i.e. opposite party nos.1 and 2 had already entered into an agreement to sell the land in question to the petitioner and, as such, he submits that in a well designed manner the complainant was cheated by all the three accused persons. He further submits that under section 319 of the Code of Criminal Procedure the court has unbridled power and the court after being satisfied that subsequent materials indicating the involvement of any person as an accused, the court is well competent to summon him to face trial along with other accused persons. Learned counsel has argued that while summoning the petitioner to face trial on the basis of materials - 5 - available on the record, the learned Magistrate has committed no error. Accordingly, he has prayed that this petition may be rejected. He further submits that in this case direction is required to be issued to conclude the trial expeditiously. 6. Besides, hearing learned counsel for the parties, I have also examined the materials available on the record particularly on perusal of the impugned order it is evident that during trial sufficient materials were collected warranting issuance of summons to the petitioner to face trial along with the two accused persons. While passing the impugned order, the learned Magistrate has committed no error. I am of the opinion that the impugned order suffers from no illegality or irregularity. 7. In the result, the petition stands rejected. 8. In view of rejection of this petition, the interim order of stay dated 2.3.2000 stands automatically vacated. Let a copy of this order be communicated to the court below forthwith. Patna High Court The 12th May, 2010 NAFR/Md.S. (Rakesh Kumar,J.)