Criminal Miscellaneous No.2230 OF 1999 In the matter of an application under section 482 of the Code of Criminal Procedure ---------- RAMESHWAR JI PRASAD @ RAMESHWAR JI SAH, Son of Binda Lal Sah, resident of Village – Bagaora, Police Station- Daraunda, District-Siwan ----------- Petitioner Versus 1. THE STATE OF BIHAR 2. Satya Narain Tiwari S/O Late Kamla Tiwari, resident of Village-Abbui, P.S. Daraund, District-Siwan ------- Opp.Parties ------- For the petitioner :Mr. Yogendra Pd.Sinha,Adv. For the State :Mr.Suraj Pd.Singh, A.P.P. -------- P R E S E N T THE HON'BLE SHRI JUSTICE RAKESH KUMAR Rakesh Kumar, J. While invoking inherent jurisdiction of this Court under Section 482 of the Code of Criminal Procedure, the petitioner has made specific prayer for quashing of the order dated 3.8.1994 passed by Sri S.K.Verma, Judicial Magistrate, Siwan in Complaint Case No.458 of 1993, corresponding to Trial No.793 of 1994 . While taking cognizance, the learned Magistrate had ordered for issuance of summon to the petitioner. By the said order, the learned Magistrate had taken cognizance for the offences under Sections 420, 465,467,468, 471, read with Section 34 of the Indian Penal Code. 2. In paragraph 1 of the petition, the petitioner has made a prayer as follows: 2 “ That this is an application for quashing the order dated 3.8.94 by which Mr. S.K.Verma, Judicial Magistrate, Siwan has issued the summons against the petitioner under Section 420,465,467,468,471 read with Section 34 of the Indian Penal Code in complaint case No.458/1993 corresponding to Trial no.793/94.” 3. Similarly, in prayer portion of the petition, the petitioner has prayed as follows: “ It is, therefore, prayed that your lordships may graciously be pleased to admit this application, call for the record and after hearing the parties allow this application quashing away impugned order dt.3.8.98 passed by Mr. S.K.Verma, Judicial Magistrate, Siwan in C.Case No.458/1993 corresponding to trial no.793/94 as well as quashing away the entire criminal proceeding of the aforementioned case or pass such other order/orders as your lordships may deem fit and proper And It is further prayed that till the final disposal of this application the proceeding of C.Case no.458/1993 corresponding to Tr.no.793/94 may be stayed.” 4. Against the order of cognizance, it is evident from the petition as well as its enclosure that the petitioner filed a revision petition vide Cr. Revision No.279 of 1994. The said criminal revision stood rejected on 16.11.1998. Though the revision petition was rejected, against the said order of 3 cognizance, the petitioner has not challenged the order of revisional court before this Court. However, the present petition was admitted on 21.7.1999 and while admitting the case, this Court directed that “until further orders, further proceedings in the court below shall remain stayed.” Despite the fact that the case was admitted in the year 1999, the petitioner did not take any step for amending the prayer by way of questioning the order of revisional court. However, in the midst of hearing of the present case, learned counsel for the petitioner submitted that he may be allowed to make correction by filing petition. After lapse of such a long time, it would not be appropriate to allow such prayer. Accordingly the petition has to be decided on the basis of materials available on the record of the case. 5. It was alleged in the complaint petition that the complainant had mortgaged his land measuring an area of 8 Kathas 7 dhurs for an amount of Rs.5000/- by executing two time bound deeds on 1.7.1978. It was alleged by the complainant that he repeatedly approached the petitioner for redemption of the same but one way or the other it was not done and finally the complainant came to know that the mortgaged property was sold by the petitioner to someone else. Thereafter, the present complaint petition was filed. 6. From the records, it appears that a title suit was filed by the complainant vide Title Suit No.304 of 1993. 7. While pressing this petition, learned counsel 4 for the petitioner has argued that on the face of the complaint petition, it appears that the dispute was purely civil in nature and for such assertion the present prosecution may not be allowed to further proceed. He has taken a stand that before passing of the order of cognizance in the present case, the complainant died. He submits that in view of Section 256 of the Code of Criminal Procedure, the learned Magistrate in absence of the complainant was required to immediately acquit this petitioner, but contrary to the statutory provision the learned Magistrate proceeded with the matter. He has specifically mentioned in paragraph 9 of the petition that the complainant died on 6.3.1997. In the present case order of cognizance was passed on 3.8.1994. In view of assertion made by the petitioner in his petition itself, it is clear that the complainant died after the order of cognizance. Accordingly, the point argued by the petitioner relating to application of Section 256 of the Code of Criminal Procedure has got no force. So far as the submission of the learned counsel for the petitioner that for the same cause the complainant had filed civil suit so he cannot be allowed to proceed with the criminal case, I am of the view that this submission is only to be noticed for its rejection. From the complaint petition, it is evident that though the land in question was mortgaged, the petitioner sold the same, which is clear-cut act of commission of an offence. There is no bar, in the facts and circumstances of the present case, to proceed with the criminal proceeding pursuant to 5 the complaint case filed by the petitioner. 8. Accordingly, I do not find any merit in this petition and petition stands rejected. Patna High Court,Patna Dated : the 6th April,2010 Nawal Kishore Singh/N.A.F.R. ( Rakesh Kumar, J)