IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.14013 of 2008 1. LALAN SINGH SON OF BABBAN SINGH 2. LAKHAN SINGH @ LAKHANDEV SINGH SON OF BABBAN SINGH. 3. BHOLA SINGH SON OF BABBAN SINGH PETITIONER NO.1 TO 3 ARE RESIDENT OF VILLAGE- BASUDHARA, P.S. KARGAHAR, DISTT- ROHTAS. 4. RAMAKANT SINGH SON OF HARI SINGH, RESIDENT OF VILLAGE- LANJI, P.S. CHENARI, DISTT- ROHTAS .-----------PETITIONERS Versus STATE OF BIHAR . -------------OPPOSITE PARTY. ----------- 4 07.02.2011 Heard learned counsels for the petitioners, complainant and the State. The petitioners have challenged the order dated 26.09.2007 passed by the learned Additional District and Sessions judge, (F.T.C.-III), Rohtas at Sasaram whereby the order dated 18.10.2006 has been set aside which was passed by Judicial Magistrate, 1st Class in complaint Case No. 1355/05, whereby learned Magistrate dismissed the protest under Section 203 of the Cr.P.C. Consequently, in pursuance to revisional order vide order dated 16.02.2008 the learned magistrate issued summons against the petitioners. The accusation of the complainant is that the accused Kesra Devi sold the house of the complainant by registered sale deed to Lalan Singh, one of the petitioners. It 2 is claimed that in partition the disputed property fell in the share of the complainant. The complaint case was transferred under Section 156(3) of the Cr.P.C. to the police. The police, after investigation, submitted final form finding the accusation false and recommended for the prosecution of the complainant. The complainant filed protest petition. The protest petition was transferred to the Court of learned Judicial Magistrate 1st Class. Consequently, the protest complaint was dismissed on 18.10.2006. The complainant being aggrieved by the aforesaid order, filed a Criminal Revision 227/06. The learned Additional Sessions Judge perused the evidence on record and vide order dated 26th of September 2007 came to the conclusion that the persons put in accused category need to be summoned and quashed the order of the magistrate dated 18.10.2006 by which the complaint-cum-protest was dismissed. Consequently, the Magistrate issued summons. Learned counsel for the petitioners submits that while exercising the revisional jurisdiction, the learned Additional Sessions Judge was not required to reappraise the evidence on record and virtually by the impugned order, the learned Additional Sessions Judge has taken cognizance and 3 directed the Magistrate to issue summons which has no authority under Cr.P.C. It is also submitted that for the same grievance complainant had filed Title Suit no. 636 of 2003 on 30.09.2003 which was dismissed for non-prosecution. Learned counsel for the complainant submits that though the offence alleged appears to be of civil nature but the criminal complicity of the petitioners is apparent as complainant’s land has been sold by petitioner side by misleading the authorities. The petitioner no.1 is the purchaser and petitioner nos. 2 to 4 are family members of the petitioners. Apparently the accusation is based on the issue whether the complainant was authorized to sell the land to the petitioner and this question has to be decided by the competent Civil Court. The Apex Court in the case of Indian Oil Corp. Vs. NEPC India LTD. and Others reported in 2006(6) SSC, 736 has deprecated the misuse of the criminal forum for redressal of the civil dispute. Para 13 of the said judgment reads as follows:- “While on this issue, it is necessary to take notice of a growing tendency in business circles to convert 4 purely civil disputes into criminal cases. This is obviously on account of a prevalent impression that civil law remedies are time consuming and do not adequately protect the interests of lenders/creditors. Such a tendency is seen in several family disputes also, leading to irretrievable breakdown of marriages/families. There is also an impression that if a person could somehow be entangled in a criminal prosecution, there is a likelihood of imminent settlement. Any effort to settle civil disputes and claims, which do not involve any criminal offence, by applying pressure through criminal prosecution should be deprecated and discouraged. In G. Sagar Suri V. State of U.P. this Court observed; (SCC p. 643, para 8). It is to be seen if a matter, which is essentially of a civil nature, has short cut of other remedies available in law. Before issuing process a criminal court has to 5 exercise a great deal of caution. For the accused it is a serious matter. This Court has laid certain principles on the basis of which the high Court is to exercise its jurisdiction under Section 482 of the Code. Jurisdiction under this section has to be exercised to prevent abuse of the process of any court or otherwise to secure the ends of justice.” In view of the aforesaid ratio laid down by Apex Court, the complainant ought to have pursued his grievances before a civil forum but if the complainant allowed the title suit to be dismissed then he can not be allowed to misuse the criminal forum. The impugned order reflects that virtually learned Additional Sessions Judge has taken cognizance and directed the magistrate to issue summons. There is no doubt that revisional forum can be exercised for correcting the jurisdictional error committed by the subordinate courts and that can be done by perusing the materials on record, but revisional court can not usurp the power of magistrate under Section 190 of the Cr.P.C to take cognizance. Learned 6 Sessions Judge ought to have perused the record and transmitted the matter for passing a fresh order by the Magistrate but in stead of doing the same, the learned Additional Sessions Judge has remanded the matter for issuing of the summon which appears to be not permissible under the law. Considering the rival contentions of the parties, this Court comes to the conclusion that allowing to continue the proceeding of the present case will be sheer misuse of the process of the Court hence the impugned order dated 26.09.2007 passed in Revisional Case No. 227 of 2006 by learned Fast Track No. III, Rohtas including the entire prosecution of the Complaint Case No. 1355 of 2005 (Tr. No. 2652/08) pending in the Court of learned Chief Judicial Magistrate, Sasaram are hereby quashed. However, the quashing of the present criminal prosecution will not preclude the complainant to seek his remedies under the civil forum. Amrendra/ (Dinesh Kumar Singh,J.)