IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.18810 of 2007 1. Dr. Kameshwar Thakur alias Kameshwar Thakur, Son of Late Anant Thakur. 2. Krishna Devi wife of Kameshwar Thakur of Village Khirjan, Police Station Jagdishpur, District- Bhagalpur. 3. Jai Sri Devi alias Jaya Devi, Wife of Sri Bharat Narayan Mishra, of Mohalla Martachak(Mirjan) Police Station Majlishpur, District-Bhagalpur, at present Mohalla Sakaru Garh, Police Station Town Sahebganj, District-Sahebganj. …………Petitioners. 1. The State of Bihar. 2. Maheshwar Thakur, Son of Late Anant Thakur, Resident of Village Khirjan, Police Station Jagdishpur, District-Bhagalpur. …………... Complainant-Opposite Parties. ----------- For the Petitioners : Mr. Shiwesh Chandra Mishra, Advocate. For the State : Mr. Jharkhandi Upadhayay, A.P.P. ------------ O R D E R The petitioners who have been arrayed as accused in Complaint Case No.503 of 2000 have prayed for the quashing of the order dated 3.8.2000 passed therein by Sri Prem Kumar Prasad, Judicial Magistrate, First Class, Bhagalpur, whereby he has taken cognizance against them under Sections 120-B/420/467/468 and 471 I.P.C. as also the order dated 5.7.2004 passed by the learned Sessions Judge, Bhagalpur in consequential Criminal Revision No.334 of 2000 preferred by the petitioners against the order taking cognizance whereby the said revision has been dismissed for non-prosecution. According to the complainant, Maheshwar Thakur, impleaded - 2 - herein as O.P. No.2, who though served with notice, has chosen not to appear in this case, he has four brothers and on 2.11.1974, there was a family partition between the brothers during the life time of their parents. The mother of the complainant died in the year 1980 and the father died in the year 1990. It is further said that in the year 1975 the mother’s share in the land was gifted in favour of accused no.1 which was registered after doing some alteration of land which was against the law and they have threatened the complainant with dire consequences if anything is disclosed by him regarding forgery. It has been submitted on behalf of the petitioners that the complainant and the petitioner no.1 are own brothers and whereas petitioner no.2 is the wife of petitioner no.1, petitioner no.3 is the elder sister of petitioner no.2. It has further been submitted that on 2.11.1974, a registered partition agreement was prepared and all the four brothers, mother and father also signed the partition documents and as such altogether there were six co-sharers in the partition agreement which was registered on 16.11.1974. It is further submitted that on 4.7.1975 the mother gifted her share in the partitioned land in favour of petitioner no.1 and on 4.3.1986 the land was mutated by the Circle Officer vide Mutation Case No.128/85-86 and no objection was raised by the complainant at any time and Jamabandi was entered in the name of petitioner no.1 and the complainant did not take any action against this mutation. It has further been submitted that a proceeding under Section 144 Cr.P.C. bearing No.1329 of 1997, in which the complainant was first party and petitioner no.1 was the second party, was decided by the Sub Divisional Magistrate, - 3 - Bhagalpur, on 4.2.1998 in favour of the petitioner and again the complainant did not challenge the said order. The further submission on behalf of the petitioner is that prior to the filing of the complaint petition, complainant had filed criminal case being Jagdishpur P.S. Case No.162 of 1999 under Section 379 and other allied provisions of the Penal Code and in the said case the police submitted a final form since the case was civil in nature and the same was accepted by the Magistrate on 15.10.2000. The submission by the learned counsel for the petitioner is that since the instant case was civil in nature, therefore, the petitioners preferred Criminal Revision No.334 of 2000 before the Sessions Judge, Bhagalpur, against the order taking cognizance in the instant complaint case and the same was admitted on 28.8.2000 and notice was directed to be issued to the opposite party for which requisites were required to be filed but the said revision was dismissed on 5.7.12004 for non- compliance of the order dated 28.8.2000. I have perused the two orders of the courts below and I find no irregularity in any of them. So far as the submission advanced by the learned counsel for the petitioners is concerned, they are all their defence which cannot be looked into at this stage and that too in a proceeding under Section 482 Cr.P.C. There is another aspect of the matter. The learned Magistrate after holding an inquiry under Section 202 Cr.P.C. had found a prima facie case to have been made out against the petitioners. It is by now well settled by a catena of decisions both of the Apex Court as also this Court - 4 - that since the object of the inquiry under Section 202 Cr.P.C. is to ascertain whether the allegations made in the complaint petition are intrinsically true, the Magistrate acting under Section 203 Cr.P.C. has to satisfy himself that there is sufficient ground for proceeding. In order to come to the conclusion he is entitled to consider the evidence taken by him or recorded by him in an inquiry under Section 202 Cr.P.C. He is not entitled to rely upon any material besides this. Where there is prima facie evidence, even though an accused may have a plausible defence that the offence is committed by some other person, the matter has to be left to be decided by the appropriate forum at the appropriate stage and issue of process cannot be refused. Gainful reference may be placed on the decision of Chandradeo Vs. Prakash Chandra (AIR 1963 SC 1430). There is yet another matter which requires consideration and after due consideration has to be answered against the petitioners. Admittedly, Criminal Revision No.334 of 2000 was admitted for hearing on 20.8.2000 and while calling for the lower court records, petitioners were directed to file requisites for notice to the opposite party. That order of filing requisites does not appear to have been complied with by the petitioners for almost 4 years and eventually vide order dated 5.7.2004 the revision was dismissed for non prosecution. For this situation no one can be blamed save and accept the petitioners themselves. It is true that ordinarily revisions should not be dismissed without hearing the parties but when the revisionists themselves are lethargic and lackadaisical by conduct and do not comply with the directions of the court for almost 4 years, the court in such situation cannot be a passive onlooker and wait - 5 - indefinitely for the petitioners to take steps. For the reasons stated above, I do not find any merit in this application which is dismissed. (Abhijit Sinha,J) Patna High Court, Patna. Dated: The 30th of September, 2008. Pradeep Srivastava/A.F.R.