CRIMINAL MISCELLANEOUS No.7943 OF 2001 ------- In the matter of an application under section 482 of the Code of Criminal Procedure. ------ 1.SURESH PRASAD THAKUR S/o Sri Bharat Pd. Thakur 2.Bharat Prasad Thakur son of late JangbahadurThakur Both resident of village-Dhobgama, P.S.-Pusa District-Muzaffarpur, at present Mohalla-Kanhauli, P.S.-Mithanpura, Dist.-Muzaffarpur 3.Baidh Nath Rai son of Chaturbhuj Rai resident of village- Rambagh Chouri, P.S.-Miathnapura, Dist.-Muzaffarpur 4.Baidth Nath Tiwari son of Chaturbhuj Tiwary, resident of Village-Sherpur, P.S.-Sadar, Dist.-Muzaffarpur 5.Ram Krishna Singh son of Sri Kapildeo Singh, resident of village-Ram Bagh Chouri,P.S.-Mithanpura,Dist.-Muzaffarpur 6.Santosh Kumar Srivastava @ Santosh Kumar son of Shiv Nath Prasad Srivastava, resident of village- Registry Office, Muzaffarpur (Katib) Dist.-Muzaffarpur …… …….Petitioners Versus 1.THE STATE OF BIHAR 2.Chandeshwar Pandey S/o late Tirpit Pandey,resident of Village-Bhasari, P.S.-Sadar, Dist.-Samastipur …… ……Opp.Parties For the petitioners: Mr.Vindhya Keshari Kumar, Sr.Adv. Mr.Radhey Shyam Kumar Mrs.Ranjana Sinha For the State : Mrs. .Indu Bala Pandey, A.P.P. P R E S E N T THE HON'BLE MR. JUSTICE RAKESH KUMAR Rakesh Kumar,J. Six petitioners, while invoking inherent jurisdiction of this court under section 482 of the Code of Criminal Procedure, have prayed for quashing of an order dated 31.8.1999 passed by Sub.Divisional Judicial Magistrate, Muzaffarpur in T.R. No.892 of 2000 arising out of Complaint Case No.158 of 1997. By the said order, the learned Magistrate has taken cognizance of the offence under section 419, 420, 467, 468, 471 and 120B of the Indian penal Code. 2. Short fact of the case is that opposite party no.2 who is none else but the husband of sister of wife of petitioner no.2 (Sarhu) filed a complaint in the court of Chief Judicial Magistrate, Muzaffarpur which was numbered as Complaint Case No.158 of 2 1997. It was alleged in the complaint petition that petitioner no.2 in collusion with other accused persons got a will prepared in favour of his son, who is petitioner no.1. It was alleged that the will was forged and on that allegation the complaint was filed. After enquiry the learned Magistrate by the impugned order has taken cognizance for offences under sections 419, 420, 467, 468, 471 and 120B of the Indian Penal Code. 3. Mr. Vindhya Keshari Kumar, learned counsel appearing on behalf of the petitioners, while challenging the order of cognizance, submits that opposite party no.2 was having an evil eye on the property of his mother-in-law. However, his mother-in- law during her life time had prepared a will in favour of her grand son, who is son of petitioner n.2. It was submitted that after the death of mother-in-law of petitioner no.2 a petition was filed under section 276 of the Indian Succession Act in the court of Additional District Judge-VI, Muzaffarpur on 5.2.1997 which was numbered as Probate Case No.2 of 1997. After noticing the fact that a probate case was going to be filed the complainant has maliciously and without any basis filed the present complaint petition on the same day i.e. 5.9.1997 in the Court of Chief Judicial Magistrate, Muzaffarpur. During course of hearing learned counsel for the petitioners has filed a supplementary affidavit whereby it has been intimated that Probate Case No.2 of 1997 is still pending in the court of Additional District Judge-VI, Muzaffarpur. It was submitted that whatever allegation has been made in the complaint petition cannot be adjudicated without disposal of the probate case. Moreover, it was submitted that the allegation levelled in the present case was purely civil in nature and on such allegation the 3 learned Magistrate was not entitled to proceed with the case against the petitioners. 4. At the stage of hearing of the present petition none appeared on behalf of opposite party no.2. However I have heard Mrs Indu Bala Pandey, learned Addl. Public Prosecutor appearing on behalf of the State. 5. Besides hearing learned counsel for the petitioners and the State, I have also perused the materials available on the record. From the record it appears that the will was got prepared by the deed writer and that was also identified by an Advocate in presence of the witnesses. In the present case all these persons have been made accused by opposite party no.2. It is also not in dispute that the complainant and petitioner no.2 are Sarhu. In view of the facts and circumstances of the present case particularly pendency of the probate case, the Court is of the opinion that no purpose would be served by allowing criminal prosecution in Complaint Case No.158 of 1997 to proceed. 6. Accordingly, the order of cognizance dated 31.8.1999 passed by Sub.Divisional Judicial Magistrate, Muzaffarpur in T.R. No.892 of 2000 arising out of Complaint Case No.158 of 1997 is hereby set aside and the petition stands allowed. (Rakesh Kumar,J.) Patna High Court The 3rd September,2010 Md.S./NAFR