IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Miscellaneous No.18624 of 2008 1. Md. Hasim, son of Md. Yusuf. 2. Md. Illiyas. 3. Md. Abbas. 4. Abdul Jabbar. 5. Abdul Gaffar. All sons of Md. Hasim, resident of village-Bachanpur, P.S. Pupri, District-Sitamarhi. ……………………………………………….............Petitioners. Versus 1. The State Of Bihar. 2. Nurul Haque, son of Late Md. Isha, resident of village- Bachanpur, P.S. Pupri, District-Sitamarhi. …………………………………………….Opposite Parties. ---------------------------------- For the Petitioners : Mr. Ravindra Nath Dubey, Advocate. For the State : Mr. Jharkhandi Upadhyay, A.P.P. For O.P. No.2 : Mr. Mahendra Thakur, Advocate. ----------------------------------- O R D E R 6. 29.11.2011. The petitioners have approached this Court under Section 482 of the Code of Criminal Procedure to quash the order dated 31.8.2007 passed in Complaint Case No.281 of 2006 (T.R. No.1453 of 2007) by the Sub Divisional Judicial Magistrate, Pupri, Sitamarhi, summoning all the eight accused, named in the complaint petition, including the petitioners, on inquiry, finding prima facie case under Sections 420, 182, 204, 213, 466 and 352 of the Indian Penal Code. 2 2. The brief facts, leading to this application, are that the complainant-opposite party no.2, Nurul Haque, filed the complaint case, numbered as Complaint Case No.281 of 2006, against the eight accused persons, named in the complaint petition, including the petitioners with the contention that in the Revisional Survey, Survey Plot Nos.3525 and 3526 of Khata No.489 of village-Bachharpur, P.S. Pupri, were recorded as Masjid Asthan (Mosque Place). On 24.8.2005, the complainant-opposite party no.2, came to know on rumour that the accused-petitioners no.1 to 5 in collusion with accused nos.6 to 8, namely, Md. Rahbare Islam, Devendra Ram and Yogendra Singh, got entered their names in the aforesaid plots. Thereafter, on 25.8.2005, he filed an application before the Circle Officer, Pupri and the matter was enquired into by the Halka Karamchari and the Circle Inspector and it was found that the page of Jamabandi No.489 relating to the aforesaid plots is missing. While the recommendation was made to issue the receipt in the name of Masjid (Mosque), but in the meantime, through Bandobasti Case No.3/94-95, Jamabandi has been entered in the name of the accused-petitioner no.2, Md. Illiyas and due to fear of detecting the error, the related Jamabandi page, on which the name of the Masjid (Mosque) 3 was entered, was torn and the record of Bandobasti Case No.3/94-95 was also got missing. As such, the accused- petitioner nos.1 to 4 in collusion with accused nos.5 to 7 with an intention to grab the land of the Masjid (Mosque) had removed the page of Jamabandi No.489. It is also alleged that in the meantime, the accused-petitioner nos.1 to 4 started construction of the house upon the land of the Masjid (Mosque) and on protest, they were adamant to commit ‘Maar-Peet’. The further case of the complainant-opposite party no.2 is that he has initiated the legal proceeding to cancel the Jamabandi but the accused nos.5 to 7, under conspiracy, have removed the Jamabandi paper by torn from the government records due to which they had damaged the public feelings. 3. After filing of the complaint petition by the complainant-opposite party no.2, on inquiry, the Sub Divisional Judicial Magistrate, Pupri, Sitamarhi, summoned all the eight accused persons, named in the complaint petition, including the petitioners finding prima facie case under Sections 420, 182, 204, 213, 466 and 352 of the Indian Penal Code through the impugned order dated 31.8.2007. 4. Learned counsel appearing on behalf of the petitioners submitted that from the complaint petition itself, it 4 is clear that the name of the accused-petitioner no.2, Md. Illiyas, has been entered into and the legal proceeding is initiated by the complainant-opposite party no.2 regarding the land in dispute, as such, no offence is made out against the petitioners and on perusal of the complaint petition, the dispute appears to be of civil in nature. It has also been submitted that an application under Section 10(B) of the Consolidation Act was filed by the accused-petitioner no.2, Md. Illiyas, which was numbered as Case No.27 of 1987 and, on inquiry, the name of the accused-petitioner no.2, Md. Illiyas, was entered in respect to Survey Plot No.3525 measuring an area of two decimals as the Masjid (Masque) was found only on Survey Plot No.3526, which would appear from Annexure-‘3’ to this application and, accordingly, Parcha was issued by the Circle Officer, Pupri, which would appear from Annexure-‘2’ to this application. As such, summoning the accused, named in the complaint petition, on inquiry, is an abuse of the process of the court. On the other hand, learned counsel appearing on behalf of the complainant-opposite party no.2 made submission that the Sub Divisional Judicial Magistrate, Pupri, Sitamarhi, on perusal of the allegation, made in the complaint petition, 5 solemn affirmation of the complainant-opposite party no.2 and the statements of the witnesses has rightly passed the impugned order dated 31.8.2007 summoning the accused persons including the petitioners finding prima facie case under Sections 420, 182, 204, 213, 466 and 352 of the Indian Penal Code. 5. From the complaint petition, which is Annexure-‘1’ to this application, it appears that the complainant-opposite party no.2 has filed the complaint petition against the eight accused persons including the petitioners with allegation that the accused-petitioner nos.1 to 5 in collusion with accused nos.6 to 8 got entered the name of accused-petitioner no.2, Md. Illiyas, in respect to plots, which are in the name of Masjid (Mosque), in the Revisional Survey through Bandobasti Case No.3/94-95 and also removed the related page of Jamabandi No.489 regarding which legal proceeding has been initiated by the complainant-opposite party no.2. Annexure-‘3’ to this application shows that on the basis of the application of the accused-petitioner no.2, Md. Illiyas, filed before the court of Consolidation Officer, Pupri, Case No.27 of 1987 was registered and, on inquiry, order was passed to enter the name of accused-petitioner no.2, Md. Illiyas, in respect to Survey 6 Plot No.3525 measuring an area of 2 decimals as the Masjid (Masque) was found only over Suvery Plot No.3526. Accordingly, Parcha was issued in the name of the accused- petitioner no.2, Md. Illiyas, as appears from Annexure-‘2’ to this application. Moreover, even if the allegations, made in the complaint petition, are taken at their face value and are accepted in their entirety, the same do not prima facie constitute any criminal offence rather the dispute appears to be of civil in nature. As such the impugned order dated 31.8.2007 passed by the Sub Divisional Judicial Magistrate, Pupri, Sitamarhi, in Complaint Case No.281 of 2006 (T.R. No.1453 of 2007), summoning the accused-petitioners, which is impugned in the present application, appears to be an abuse of the process of the court. 6. Accordingly, the impugned order dated 31.8.2007 passed by the Sub Divisional Judicial Magistrate, Pupri, Sitamarhi, in Complaint Case No.281 of 2006 (T.R. No.1453 of 2007), with respect to the petitioners, is hereby quashed and the application is allowed. P.S. (Rajendra Kumar Mishra, J)