IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.19869 of 2007 1. Shobha Kant Ojha ,Son of Late Ramawtar Ojha 2. Vijay Ojha @ Vijay Kumar Ojha, Son of Shobha Kant Ojha 3. Madhu Devi wife of Shobha Kant Ojha 4. Raman Ojha, Son of Vijay Ojha 5. Punita Devi wife of Vijay Ojha 6. Pappu Ojha 7. Pinku Ojha, both sons of Shree Kant Ojha 8. Urmila Devi wife of Shree Kant Ojha 9. Shree Kant Ojha, son of Late Nand Ojha, All residents of Village Siswa Pathak, P.S.Choutarwa , District-West Champaran -------------------- Petitioners Versus 1. THE STATE OF BIHAR 2. Hari Naresh Ojha, Son of Late Rama Ojha,resident of Siswa Pathak, P.S. Choutarwa, District-West Champaran ---------------------- Opp.Parties. ----------- For the petitioner : Mr. Ganpati Trivedi, Advocate For the State : Mr.Jharkhandi Upadhaya, A.P.P. For Opp.Party no.2 : Mr. Dhananjay Kumar, Advocate ------------- O R D E R All the nine persons arrayed as accused in Complaint Case no.C 337 of 2006 for alleged commission of offences under Sections 147,148,323,379/34 I.P.C. and Sections 26 and 27 of the Arms Act and against whom cognizance has been taken only under Sections 147,323 and 380 I.P.C. by order dated 13.3.2007 passed therein by Sri D.K.Singh, Judicial Magistrate, Bagha , have prayed for the quashing of the said order taking cognizance. One, Hari Naresh Ojha, the complainant, impleaded herein as Opp.Party no.2 , filed the aforesaid complaint on 13.6.2006 inter alia alleging that at about 5-6 P.M. on 11.6.2006 all the accused came to his residence for forcible occupation /possession of his gharari - 2 - (homestead ) lands and in course thereof injured his wife Sushila Devi and sons Bholi Ojha and Amit Ojha by means of lathi and at the point of country-made pistol and farsa took away clothes worth Rs.4000/- , 3 pieces of gold ornaments worth Rs.30,000/- and 20 tolas of silver worth Rs.4000/- as also cash to the tune of Rs.7000/- from the box. The occurrence is said to have been seen by the witnesses. It is submitted that the instant complaint, false and mischievous as it is, had been filed only with the ulterior purpose of pressurizing the petitioners to withdraw the petition for cancellation of a collusive settlement of land in favour of the complainant which was in respect of 5 decimals of gairmazarua malik land appertaining to plot no.888 , khata no.388 over which the petitioners already had their residential house. In this connection, it has been submitted that on the basis of a collusive report the complainant had got 4 decimals of land of the said plot settled in the name of his wife Shushila Devi vide order dated 19.10.2004 of the Block Development Officer, Bagha of which the petitioners had no knowledge or information. Accordingly, an application was filed before the Anchal Adhikari , Bagha , for cancellation of the said settlement as the previous report did not give a correct picture regarding possession. It is said that out of a total area of 13 dhurs , the complainant was in possession of 3 dhurs and the petitioners were in possession of 8 dhurs. Copies of the application were also sent to the District Magistrate, West Champaran, D.C.L.R, West Champaran and S.D.O, Bagha. The S.D.O. is said to have sent the said application to the Anchal Adhikari for taking necessary - 3 - action and the Anchal Adhikari directed the Halka Karamchari and Circle Inspector to submit their local inspection report and on receipt of the report the Anchal Adhikari directed for issuance of notice in respect of the cancellation of the settlement . The instant complaint was lodged soon thereafter as a counter blast. On this premise it was submitted that the instant criminal prosecution was an abuse of the process of the court. Although no show cause has been filed by Opp.Party no.2 , his learned counsel sought to defend the impugned order as being fully justified in the facts and circumstances of the case. He also sought to point out that the learned counsel was introducing extraneous matters which could only be looked into in course of the trial. Admittedly, the cognizance has been taken following an enquiry under Section 202 Cr.P.C.. It is by now well settled that the Magistrate holding the enquiry cannot look into any other matter besides the evidence that has come in course of the enquiry to find out if a prima facie case has been made out for proceeding against the accused. Reference may be made to the case of Chandradeo Vrs. Prokash Chandra ( AIR 1963 SC 1430). There is another aspect of the matter. The submissions advanced by the learned counsel for the petitioners involves looking into disputed questions of facts which cannot be done in a proceeding under Section 482 Cr.P.C. and has to be decided in a full dressed trial following leading of cogent evidence by the parties. - 4 - The instant case also cannot be said to be a matter purely civil in nature since the entire dispute does not revolve round the application for cancellation of settlement. Overt acts are said to have been committed by the petitioners in course of forcible occupation of the lands of the complainant. Criminal liability is created thereby. I find no apparent reason to interfere with the impugned order. The application is accordingly dismissed. ( Abhijit Sinha, J ) Patna High Court, Patna Dated : the 6th February,2009 Nawal Kishore Singh/ A.F.R.