CRIMINAL MISCELLANEOUS No.2485 OF 2002 In the matter of an application under Section 482 of the Code of Criminal Procedure. -------- ARUN KUMAR SINGH, Son of Late Ram Kripal Singh, resident of Village-Rakiya, P.O. Rakiya, P.S. Bihra, District-Saharsa --------------- Petitioner Versus 1. THE STATE OF BIHAR 2. Madan Kumar Singh, Son of Indradeo Singh, resident of Village-Rakiya, P.O.Rakiya, P.S. Bihra, District-Saharsa 3. Nandan Sah, father’s name not known to petitioner, at present working as Panchayat Sewak, Prakhand Sattar Kataiya, P.S. Bihra, District-Saharsa ------ Opp.Parties. --------- For the petitioner: S/Sri Lala Sachindra Kumar, and Ashok Kumar Sinha No.2, Advocates. For the State: Smt. Indu Bala Pandey, A.P.P. For Opp.Party nos.2 and 3: Sri Bijay Kumar Singh “Gandhwaria”, Advocate ---------------- P R E S E N T THE HON'BLE MR. JUSTICE RAKESH KUMAR Rakesh Kumar, J. The petitioner, who was the complainant before the court below, has approached this Court while invoking its inherent jurisdiction under Section 482 of the Code of Criminal Procedure, with a prayer to quash the order dated 25.09.2001 passed by Sri V.K.Singh, Judicial Magistrate, 1st Class, Saharsa in Complaint Case No. 135C of 2001. By the said order, the learned Magistrate has rejected the complaint petition under Section 203 of the Code of Criminal Procedure. The petitioner has also prayed for quashing of the order dated 14.12.2001 passed by the learned 1st Addl. Sessions Judge, Saharsa in Cr. Revision No.212 of 2001. By the said order, the learned 2 Revisional Court has affirmed the order of rejection of the complaint petition passed by the learned Magistrate. 2. Short fact of the case is that the petitioner had filed a complaint in the court of the learned Chief Judicial Magistrate, Saharsa against Opp.Party nos. 2 and 3 for commission of offences under Sections 119, 466, 120B, 467, 468, 471 of the Indian Penal Code. In the complaint petition, three types of allegations were made. Firstly, it was alleged that Opp.Party no.1 in collusion with some fictitious persons had got a sale deed executed in his favour in respect of the land of complainant. It was further alleged that while the complainant filed a suit for declaring the sale deed as void vide Title Suit No.15 of 1999, opp.party no.2 in connivance with Opp.Party no.3 made a forged amendment in the Voter list with a view to use the same in Title Suit No.15 of 1999, which was filed by the complainant. The third allegation was that in Jamabandi Proceeding No.178 of 1999 when the notice was issued to the complainant, his signature was forged in the notice. On the aforesaid grounds, a complaint was filed and the complainant in support of his case had produced four witnesses at the stage of enquiry. However, the learned Magistrate was of the view that since the suit was pending before the court of civil jurisdiction in respect of declaring the sale deed as void , the prosecution was barred by Section 195 (1b)(2) of the Code of Criminal Procedure . The learned Magistrate was also of the view that so 3 far as other allegations are concerned, that was related to the offence committed by accused no.3, who was a Panchayat Sewak. The learned Magistrate of the view that sanction under Section 197 of the Code of Criminal Procedure was required and thereafter the learned Magistrate rejected the complaint petition under Section 203 of the Code of Criminal Procedure. 3. Aggrieved with the order of rejection of complaint petition, the complainant/ petitioner filed a revision vide Cr. Revision No.212 of 2001, which too stood rejected by the learned 1st Addl. Sessions Judge, Saharsa. The petitioner thereafter approached this Court by filing the present petition. 4. Sri Lala Sachindra Kumar, learned counsel appearing on behalf of the petitioner submits that it is true that for declaring the forged sale deed as void, the petitioner had filed Title Suit No.15 of 1999, but at the same time he was entitled to initiate a criminal prosecution against the accused persons for forging the sale deed. It was submitted that for the purposes of prosecuting the accused persons for forging sale deed, there was no point for rejecting the complaint petition on the ground that the prosecution was barred under Section 195 of the Code of Criminal Procedure. It was submitted that besides the allegation of forging the sale deed in the complaint petition, the complainant had alleged that the accused had made forged signature on the notice, which was sent to the petitioner in a Jamabandi proceeding . It was argued that for commission of 4 forging signature also, the learned Magistrate was not required to reject the petition on the ground that it was barred under Section 195 of the Code of Criminal Procedure. So far as application of Section 197 of the Code of Criminal Procedure in respect of accused no.2 is concerned, it was submitted that Opp.Party no.3 was not occupying a post from which he was required to be removed by the State Government. It was submitted that for the purposes of prosecuting the Opp.Party no.3, there was no requirement for obtaining sanction for prosecution. Moreover, it was submitted that question for prosecution sanction was required to be examined during the trial. On the aforesaid grounds, learned counsel for the petitioner has prayed for quashing of both the orders, i.e. order dated 25.9.2001 passed by the learned Judicial Magistrate, 1st Class, Saharsa and order dated 14.12.2001 passed by the learned 1st Addl.Sessions Judge, Saharsa. 5. Sri Bijay Kumar Singh “Gandhwaria”, learned counsel appearing on behalf of Opp.Party nos.2 and 3 has vehemently opposed the prayer of the petitioner. It was submitted that once the petitioner had filed Title Suit No.15 of 1999, he was not authorized to approach the court of criminal jurisdiction for initiating criminal proceeding against Opp.Party nos.2 and 3. It was further submitted that the learned Magistrate has rightly held that the prosecution of Opp.Party no.2 and 3 was barred under Section 195 of the Code of Criminal Procedure. 5 Accordingly, it has been prayed to reject the present petition. 6. I have also heard Smt. Indu Bala Pandey, learned Addl. Public Prosecutor appearing on behalf of the State. She has submitted that from the complaint petition itself, it appears that accused persons had repeatedly committed offence of forgery. 7. Besides hearing learned counsel for the parties, I have also perused the materials available on record, particularly the contents of the complaint petition. After going through the contents of the complaint petition the Court is of the opinion that the learned Magistrate had committed an error, while rejecting the complaint petition on the ground that the prosecution was barred under Section 195 of the Code of Criminal Procedure. Once it was alleged in the complaint petition that sale deed was forged by committing fraud, the sale deed was forged and prepared, the petitioner/complainant was entitled to avail both the remedies, i.e. to file a case for declaring the said sale deed as void, which he had already availed and secondly he was entitled to take steps for prosecuting the accused for committing offence for forging the sale deed. The Court is of the view that similarly, the learned Addl. Sessions Judge has not appreciated the entire facts and the allegation made in the complaint petition in right perspective and , as such, both the orders are liable to be set aside. 8. Accordingly, order dated 25.9.2001 passed by Sri 6 V.K.Singh, Judicial Magistrate, 1st Class, Saharsa in Case No.135 C of 2001 as well as order dated 14.12.2001 passed by the learned 1st Addl. Sessions Judge, Saharsa in Cr.Revision No.212 of 2001 are hereby set aside and the matter is remitted back to the court of the learned Magistrate for proceeding with the case in accordance with law. The petitioner stands allowed. Patna High Court,Patna Dated : the 1st September,2010 Nawal Kishore Singh/ N.A.F.R. ( Rakesh Kumar, J.)