IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.12943 of 2007 KAMALA KANT DUBEY & ANR Versus STATE OF BIHAR & ANR ----------- For the petitioners : M/S K.N.Chaubey, Sr.Advocate and Ashok Kumar Pandey, Advocate For the State : Mr. Jharkhandi Upadhaya, A.P.P. For Opp.Party no.2 : M/S Dinesh Prasad Singh, Sr. Advocate and Satyendra Pandey,Advocate _________ O R D E R The two petitioners who along with others have been made to figure as accused in Complaint Case No.475(C) of 2006 have prayed for the quashing of the order dated 18.11.2006 passed therein by Sri Bashishtha Narain Singh, learned Presiding Officer, F.T.C.No.1, Kaimur at Bhabhua in Cr.Revision no.99 of 2006 / 28 of 2006, whereby the learned court has set aside the order dated 22.7.2006 passed by Sri Habibullah, Judicial Magistrate, Bhabhua in the aforesaid complaint case, whereby he had rejected the complaint petition under Section 203 Cr.P.C. Most. Prabhawati Kuer, complainant, impleaded herein as Opp.Party no.2 had filed the aforesaid complaint on 6.6.2006 inter alia alleging that accused no3, Kamla Kant Dubey was her brother and accused Nos.1 and 2 were his sons and that she was keeping in different health for quite sometime, for which she was getting treated by her father- in-law, Ramji Mishra and other family members and her brother and nephews used to come to see her occasionally. It is further alleged that in the morning of 21.4.2006 the accused persons came visiting the - 2 - complainant and surreptitiously mixed some intoxicating drugs with her medicines kept in the room for her consumption and even administered the intoxicating drugs to her which the complainant could not realize. It is said that the complainant is a widow and she, under the pretext of treatment, was taken by the accused persons to the Sadar Hospital , Bhabhua but instead of the hospital she was taken to the Registry Office where on the pretext of giving consent to the purported operation to be performed on her, the petitioners in connivance with others got executed a sale deed in favour of accused no.2, Rajnish Kumar Dubey, in respect of her lands measuring 5 acres , appertaining to Khata no.17 , Plot no.54 in Mauja- Maidad . It is further alleged that when she came to know about the sale deed, then she went to the Police Station who advised her to approach the court and file a complaint. It has been submitted on behalf of the petitioners that the allegations as made in the complaint petition , even if accepted on its face value , would not constitute any criminal offence and criminal prosecution for the same would be an abuse of the process of the court. It was further submitted that there were several contradictions in the statement of the complainant made before the court and in the complaint petition which falsifies the case of the complainant. In this context, it was sought to be pointed out that whereas the complainant in her S.A. stated that she came to know about the sale deed at Varanasi when servant of Radha Raman Mandir communicated the information to her but in the complaint petition, it has been stated that she came to know about the sale deed when the brother of her husband told her about it. It is also contended - 3 - that the learned Judicial Magistrate had rightly held that no offence had been made out against the petitioners and that the complainant had executed the sale deed with full knowledge, appeared before the court of Registrar, put her signature on the sale deed and photograph and also put her thumb impression on the sale deed. It was also submitted that after completion thereof the sale receipt had also been delivered to the petitioners. The learned counsel also sought to point out that for the same matter, Suit No.145 of 2006 had been filed for cancellation of the sale deed, which is pending in the court of Subordinate Judge-I, Kaimur at Bhabhua. The learned counsel also sought to bring to the notice of the court that the petitioners had no intention or motive to cheat the complainant. The Revisional Court while setting aside the dismissal order passed by the learned Magistrate observed that there was no reference to any consideration money having been paid in lieu of the execution of the sale deed and the learned Magistrate had also found that the complainant in her statement on S.A. had fully supported the complaint case and having considered all other matters , the order of the Magistrate was set aside and the matter was remitted back to the Magistrate for fresh consideration. There are two aspects of the matter. Firstly, merely filing of a title suit does not mean that it provides a bar to a criminal case where a criminal offence does prima facie appear to have been made out. The second aspect is that if the materials came on record in course of enquiry under Section 202 Cr.P.C., the Magistrate conducting enquiry is only - 4 - required to see whether the allegations made in the complaint are intrinsically true and if he is satisfied thereby that there is sufficient ground for proceeding. In order to come to this conclusion, he is entitled to consider the evidence taken by him or recorded in the enquiry under Section 202 Cr.P.C. He is not entitled to rely upon any materials besides this .Where there is a prima facie evidence, 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 in this regard may be made to the decision of Chandra Deo –Vrs. Prakash Chandra, reported in 1963 SC 1430. In the instant case, the Magistrate did find that the complainant in her statement on S.A. had fully supported the case made out in the complaint petition and with minor discrepancy the witnesses had also supported the complainant’s case. Therefore, it appears that a prima facie case based on the complaint had been made out for issuance of process. In that view of the matter, the Revisional Court had rightly remitted the case back to the learned Magistrate for fresh consideration and I find no palpable reason to differ with the same. Accordingly, I find no merit in the application which is dismissed. However, the learned Magistrate is directed to act in accordance with the order of the Revisional Court. ( Abhijit Sinha, J) Patna High Court,Patna Dated : the 17th September,2008 Nawal Kishore Singh/ A.F.R.