CRIMINAL MISCELLANEOUS No.35051 OF 2007 -------- In the matter of an application under section 482 of the Code of Criminal Procedure. -------- 1.LALAN PRASAD son of late Jadu Bardayal, resident of village-Parsa, P.S.-Kutumba, Dist.-Aurangabad, at present residing at Mohalla-Kadarpur Ambikapur, P.S.-Ambikapur, Dist.-Sarguja (Chhatish Garh) 2.Ishwari Singh son of late Ram Deni Singh 3.Jai Shankar Thakur alias Jai Ram Thakur son of Late Jadu Thakur 4.Janeshwar Singh son of late Halkhori Singh 5.Ravindra Singh son of Ishwari Singh All resident of village-Parsa, P.S.-Kutumba, District-Aurangabad(Bihar) ….. …….Petitioners Versus 1.STATE OF BIHAR 2.Santan Prasad son of late Raghubar Dayal, resident of village-Parsa, P.O.-Narinkhap, P.S.-Kutumba, Dist.-Aurangabad (Bihar)…… ……Opp.Parties -------- For the petitioners: Mr. Nand Kishore Pd. Sinha For Opp. Party No.2: Mr. Yogendra Kumar Singh For the State : Mrs. Pushpa Sinha No.1. -------- P R E S E N T THE HON'BLE MR. JUSTICE RAKESH KUMAR ------- Rakesh Kumar,J. The petitioner no.1, who is cousin of the complainant (opposite party no.2) and four others, have approached this court with a prayer to quash an order dated 5.7.2007 passed by the Chief Judicial Magistrate, Aurangabad in Complaint Case No.104 of 2007. By the said order learned Magistrate has taken cognizance of the offence under sections 420, 465 and 323 of the Indian Penal Code. 2. Short fact of the case is that earlier opposite party no.2 filed a complaint in the court of Chief Judicial Magistrate, Aurangabad, which was numbered as Complaint Case No.240 of 2006, alleging therein that petitioner no.1 had 2 sold the ancestral house and land to accused no.2/petitioner no.2 and petitioner nos.3, 4 and 5 had signed the deed as witnesses. The complainant alleged that the accused persons had also abused the complainant. The complaint petition was referred to the police for its registration and investigation under section 156(3) of the Code of Criminal Procedure and, thereafter, first information report vide Kutumba P.S. Case No.34 of 2006 was registered. Subsequently, during investigation allegation in respect of abuse and assault was found completely untrue. It was further found that petitioner no.1 had come into possession over the land in question from the year 1965 on the basis of deed of gift. The allegation made in the complaint petition was found untrue and, as such, final report was submitted on 12.10.2006. In the meanwhile, a protest petition was filed by opposite party no.2 which was treated as complaint case vide Complaint Case No.104 of 2007. After conducting enquiry, the learned Magistrate by the impugned order has taken cognizance of the offences under sections 420, 465 and 323 of the Indian Penal Code. 3. Aggrieved with the order of cognizance, the petitioners have approached this court by filing the present petition. 4. Mr. Nand Kishore Prasad Singh, learned counsel appearing on behalf of the petitioners, while questioning the order of cognizance as well as initiation of the proceedings on the basis of protest-cum-complaint petition filed by opposite 3 party no.2, submits that even on the basis of complaint petition no offence is made out. It was submitted that the land in question was sold by petitioner no.1 on the basis of deed of gift which was gifted to him in the year 1965. It has been submitted that petitioner no.1 and opposite party no.2 are cousin and earlier they were joint. Subsequently, petitioner no.1 started to live in Ambikapur, Madhya Pradesh. It was submitted that petitioner no.1 was desirous to dispose of the land of his share and opposite party no.2 was also interested to purchase the land. Since petitioner no.1 sold the land in question to petitioner no.2, this irritated the complainant and, as such, the present complaint was filed by opposite party no.2. It was submitted that in view of the facts and circumstances of the present case, no offence is made out. Moreover, the statutory investigating agency had conducted the investigation thoroughly and, thereafter, final report was submitted. Accordingly, it has been submitted to set aside the impugned order. 5. Mr.Yogendra Kumar Singh, learned counsel appearing on behalf of opposite party no.2 has vehemently opposed the prayer of the petitioners. It was submitted by Mr. Singh that the land in question which was sold by petitioner no.1 was actually the land of opposite party no.2. The said land was purchased by opposite party no.2 and subsequently without any authority or title petitioner no.1 has sold the land to petitioner no.2. Mr. Singh submits that from the complaint petition it appears that there were some clerical errors. Instead of word 4 ‘ancestral land’ in paragraph 1 at internal page 2 of the complaint petition, ‘self acquired property’ should have been typed. It has further been submitted that even in a case where there is two possibilities i.e. commission of offence as well as civil liability, there is no restriction to proceed with criminal case. In support of the stand he has referred to a Single Bench judgment of Bombay High Court reported in 1991(1) Cr.L.J.298 (Babulal Mishrimal Vardhan & Ors. Vs. Sudershan Wadia and Another) and 2009(2) PLJR 290 (Baliram Prasad Vs. The State of Bihar & Ors.). Accordingly, it has been prayed to reject the present petition. 6. I have also heard Smt. Pushpa Sinha No.1, learned Additional Public Prosecutor appearing on behalf of the State. 7. Besides hearing learned counsel for the parties, I have also perused the materials available on the record. After going through the complaint petition, it is evident that petitioner no.1 and petitioner no.2 are grand son of one Girja Sahay. Even in complaint petition, it has been admitted that the land in question was ancestral land. If for the time being it is assumed that petitioner no.1 had transferred some ancestral land, it cannot constitute an offence. It can hardly be considered as dispute of civil nature and on such allegation criminal proceeding cannot be allowed to proceed. So far as case law which was cited by learned counsel for opposite party no.2 is concerned, it is not in dispute that in such a situation one can avail both remedies i.e. 5 civil and criminal. In the facts and circumstances of the present case particularly in view of the fact that the police after thoroughly investigating the case had submitted final report and in the final report it was noticed that the land in question was gifted to petitioner no.1 in the year 1965, it would not be appropriate to allow the prosecution of the petitioners on the basis of allegation made in the complaint petition. The court is of the opinion that it is a fit case to interfere with the order of cognizance. 8. Accordingly, the order dated 5.7.2007 passed by learned Chief Judicial Magistrate, Aurangabad in Complaint Case No.104 of 2007 is hereby set aside and the petition stands allowed. Patna High Court The 25th November,2010 Md.S./NAFR ( Rakesh Kumar, J.)