IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.14389 of 2007 MD.MOHIUDDIN & ORS Versus STATE OF BIHAR ----------- 4 12.9.2008 Heard Mr. Iqbal Asif Niazi, the learned counsel for the petitioners and Mr. Jharkhandi Upadhaya, the learned A.P.P. for the State. Although notice was duly issued and served on O.P. No. 2 he has not chosen to appear to contest this application. Through this application the petitioners have prayed for quashing of the order dated 20.12.2006 passed by Sri V.N.Singh, Judicial Magistrate, 1st Class, Darbhanga in Complaint Case No. 1175 of 2006, whereby he has been pleased to take cognizance against the petitioners and another for offences under sections 465, 468, 471, 419 and 120B I.P.C.. A further prayer has been made for the quashing of the entire criminal proceeding against the petitioners arising out of the said complaint case. One Md. Jahangir filed complaint petition bearing C.R. No. 793 of 2003 before the learned Chief Judicial Magistrate, Darbhanga on 15.7.2003 inter alia alleging that on 25.3.1996 all the 11 named persons conspired together and got registered the complainant ‘s and his brother’s land bearing Muntazma No. 3331, Municipal Khesra No. 22526, 22528, 22529 measuring an area of 17 dhurs 75 dhurkis by presenting a fake lady as Sajda Khatoon. It is also alleged that on 20.5.2003 the complainant heard rumour in the - 2 - mater in mohalla and after an inquiry he came to know that the accused persons on the basis of a farzi panchnama had prepared forged documents with respect to the ancestral lands aforesaid of his brother and his share. It has also been alleged that accused no. 10 Sajda Khatoon does not belong to the complainant’s family but the accused persons after conspiracy prepared a fake sale deed with respect to his ancestral lands by placing the said accused no. 10 Sajda Khatoon as executant in favour of the accused nos. 6 and 7 who are petitioners no. 1 and 2 herein. The said complaint petition was transmitted to the concerned police station under section 156(3) Cr.P.C. and on the basis thereof Laheriasarai P.S. Case No. 209 of 2003 was registered under section 419, 420, 465, 466, 467, 468 and 471 I.P.C. against the 11 accused persons including the petitioners. After due investigation, as it appears, the police submitted a final report showing the case to be false. In the meanwhile a protest petition had been filed by the complainant and the same having been numbered as C.R. No. 1175 of 2006 was transferred to the Court of Sri V.N.Singh, Judicial Magistrate, 1st Class, Darbhanga under section 192 Cr.P.C. for inquiry and disposal where it was taken up as a complaint case and after recording the statement of the complainant on S.A. and examining 3 witnesses produced on his behalf at the inquiry, the learned Magistrate took cognizance for offences under sections 465, 468, 471 and 120B I.P.C. by the impugned order dated 20.12.2006. It has been submitted on behalf of the petitioners that it is - 3 - totally false to say that Sajda Khatoon does not belong from the complainant’s family. Referring to the genealogical table it was sought to be submitted that Junab Ali, the common ancestor, died living behind two sons namely Sahebjann and Md. Jaan and one daughter Rasoolan and Sahebjann died leaving behind four sons, namely, Md. Quasim, Md. Alam, Jahangir and Shah Jahan and two daughters Tetri and Bauki. Md. Jaan also died leaving heind two sons, namely, Abdul Rajjak and Md. Hasan and out of them Abdul Rajjak died leaving behind his two sons, namely, Gul Mohammad and Ful Mohammad and one daughter Maimun Nisha. Later on Ful Mohammad also died leaving behind his widow Most. Sajda Khatoon (accused no. 10) and four minor children. It is also submitted that in the year 1993 all the family members unanimously appointed seven respected persons of mohalla as ‘Panchan” for partition of their ancestral as well as purchased land and after measuring the entire plots through an Amin a Panchnama for family partition was prepared and accordingly the parties came over their respective allotted shares and since then they are coming in peaceful possession over the same. By virtue of the Panchnama the entire lands measuring 4 kathas 1 dhur 26 dhurkis appertaining to khesra nos. 22525, 22529, 22528, 22526 and 22540 which was acquired through five kewalas the complainant’s family got lands in only plot no. 22525 (10 dhurs) and 22529 (16 dhurs) but in the partition a common road of 4 dhurs 15 dhurksi has been shown from the entire plot in which 2 dhurs 25 dhurkies land from the share of both families - 4 - had been shown as lands given up for the road and as such the complainant’s family got their total remaining share of 11 dhurs 75 dhurkies. It is further submitted that since the children of Ful Mohammad were minor, his wife Sajda Khatoon got her husband’s share in the 17 dhurs 75 dhurkis and she was coming in peaceful possession over the same. It is stated that Sajda Khatoon wanted to get her daughter married for which she had to sell land and when this fact came to be known to her neighbour Amir Hasan he became ready to purchase the same and paid Rs. 10,000/- in advance. But when the date of marriage had been fixed and money was required Amir Hassan refused to give the balance amount and wanted to grab the land without paying the balance amount whereupon objections were raised by the villagers. A proceeding under section 144 Cr.P.C. was initiated which was eventually dropped and then the instant complaint case has been lodged at the instance of Amir Hassan. It has further been submitted that the entire case from bare recital of the complaint petition appeared to be civil in nature and the criminal proceeding would be an abuse of the process of the Court. Grievance was also raised over the delay in filing the complaint petition. It would appear from perusal of the recital in the complaint that the entire dispute was over execution of sale deed in favour of some of the petitioners and for the same a remedy lay before a competent court of civil jurisdiction and the criminal courts had no say in the matter. - 5 - I am in agreement with the submissions advanced by the learned counsel for the petitioners . In the result the application is allowed and the impugned order taking cognizance is hereby quashed. Spd/- (Abhijit Sinha, J.)