Patna High Court
Nurul Hoda & Ors vs State Of Bihar & Anr on 14 May, 2012
Author: Ashwani Kumar Singh
Bench: Ashwani Kumar Singh
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Miscellaneous No. 17632 of 2007
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1. Nurul Hoda, son of Ajijul Haque.
2. Ataur Rahman
3. Jiyaur Rahman.
Both sons of Nurul Hoda, residents of village-Jatwa Janerwa, P.S.-Banjariya,
District-East Champaran. .... .... Petitioners
Versus
1. The State of Bihar.
2. Devilal Prasad, son of Late Jagdish Prasad, resident of village-Banjariya, P.S.-
Banjariya, District-East Champaran.
.... .... Opposite Parties
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Appearance :
For the Petitioners : Mr. Dhananjay Kumar, Adv.
Mr. Sunil Prasad, Adv.
For the O. P. No.2 : Mr. K.B. Verma, Adv.
For the State : Mr. Matloob Rab, A.P.P.
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CORAM: HONOURABLE MR. JUSTICE ASHWANI KUMAR SINGH
C.A.V. JUDGMENT
Heard Mr. Dhananjay Kumar, learned counsel appearing on behalf of
the petitioners, Mr. K. B. Verma, learned counsel appearing on behalf of the
opposite party no. 2 and Mr. Matloob Rab, learned A.P.P. for the State.
The petitioners have invoked the inherent jurisdiction of this Court
under Section 482 of the Code of Criminal Procedure for quashing the order dated
5.1.2007passed in Tr. No. 839 of 2006 by which the learned Sub-Divisional Judicial Magistrate, Motihari rejected the application of the petitioners for discharge filed under Section 245 of the Code of Criminal Procedure.
Initially opposite party no. 2 filed Complaint Case No. 1199 of 1996 on 31.10.1996 in the court of the learned Chief Judicial Magistrate, Motihari, East 2 Patna High Court Cr.Misc. No.17632 of 2007 dt.14-05-2012 2/7 Champaran which was referred to the police for institution of F.I.R. and investigation in exercise of powers conferred under Section 156(3) Cr. P.C. Accordingly, Motihari Town P.S. Case No. 19 of 1997 dated 21.1.1997 was registered under Sections 323, 448, 379 and 153 of the Indian Penal Code and investigation was taken up. The police investigated the case and found the accusation against the petitioners false and, thus, on 30.5.1997 a final report was submitted stating therein that the dispute was of civil nature.
The complainant-opposite party no. 2 thereafter filed a complaint in the form of protest in the court of learned Chief Judicial Magistrate, Motihari in the aforesaid police case on 19.9.1997 alleging therein that the Investigating Officer went in collusion with the petitioners and submitted a final report holding the dispute to be of civil nature. In the said protest petition, he had stated that when he received notice from the court regarding closure of the police case, he is filing protest petition which may be kept on record. The learned Chief Judicial Magistrate after hearing the opposite party no. 2 and perusing the final report submitted by the police accepted the police report and by order dated 3.11.1998 directed the protest petition to be treated as a complaint and made over the case to the court of learned S.D.J.M., Motihari, East Champaran, under Section 192 of the Code of Criminal Procedure for inquiry and trial.
In the complaint case, the complainant was examined on oath and in course of enquiry under Section 202 Cr. P.C., inquiry witnesses were examined. The learned Magistrate after conducting the inquiry found a prima facie case to be made out under Sections 323, 447 & 379 of the Indian Penal Code and summoned the petitioners by order dated 26.4.2001.
At the stage of framing of charge, an application under Section 245 of the Code of Criminal Procedure was filed on behalf of the petitioners, stating 3 Patna High Court Cr.Misc. No.17632 of 2007 dt.14-05-2012 3/7 therein that in the facts and circumstances of the case, no criminal offence was made out against them and, thus, there was absolutely no ground for framing of charge. By the impugned order dated 5.1.2007, the said application of discharge filed under Section 245 of the Code of Criminal Procedure dated 29.5.2003 has been rejected. It is against that order, an application under Section 482 of the Code of Criminal Procedure was filed before this Court on 13.4.2007. By order dated 6.5.2009, the present application was admitted for hearing and further proceeding in the court below was ordered to be stayed.
In sum and substance, the complainant has alleged that he has got 2 Bigha, 14 Kathas and 8 Dhurs land, appertaining to Khesra No. 388, 395, 396, 397 and 398 over which he had planted bamboo trees. On 23.10.1996 at about 9.30 a.m., the accused persons cut 25-30 bamboos from the bamboo orchard of the complainant. When objected by the opposite party no. 2 and his sons, the petitioners assaulted them by fists and slaps. The complainant alleges that due to the theft committed by the petitioners, he sustained a loss of Rs. 1100/-. As stated above, initially the complaint was forwarded to the police under Section 156(3) of the Code of Criminal Procedure, the police registered an F.I.R. and on completion of investigation, submitted final report contending the dispute to be of civil nature. A protest petition was filed after the filing of the final report by the complainant pursuant to receipt of notice from the court. The complaint was, then, made over to the S.D.J.M., Sadar Motihari under Section 192 of the Code of Criminal Procedure for inquiry and trial.
It is submitted on behalf of the petitioners that the learned court below did not consider several important facts involved in the case and, thus, passed a wrong order by which the application for discharge was rejected. He submits that the court below failed to take into account that there was a long running battle 4 Patna High Court Cr.Misc. No.17632 of 2007 dt.14-05-2012 4/7 between the parties in relation to a piece and parcel of land where both the sides are claiming ownership and one or other complaint cases have come to be filed by each side and in view of the civil litigation, no case under Sections 323, 447 and 379 of the Indian Penal Code is made against the accused persons. He contends that the land in dispute was purchased by the petitioners through registered sale deed in 1979 and since then the accused are coming and continuing in possession thereof.
It has further been submitted that petitioner no. 1 Nurul Hoda had taken loan from Allahabad Bank creating mortgage of the disputed land. In consequence of the loan, Certificate Case No. 4/86-87 and 5/87-88 was filed against the petitioner no. 1 Nurul Hoda by the bank for realization of the loan amount.
It is also submitted that opposite party no. 2 (complainant) filed Title Suit No. 253 of 1995 against petitioner no. 1 and the bank in respect of the disputed land. He had also prayed for injunction in the suit which was dismissed by order dated 12.6.1996. Later on, the suit was also dismissed for want of jurisdiction and valuation. Thereafter, opposite party no. 2 (complainant) filed another suit, being Title Suit No. 264 of 1997.
Advancing his argument, it is submitted that though the prosecution claims that the land in dispute was purchased in the name of Smt. Anarkali Devi, wife of the opposite party no. 2 but actually there is no such deed in existence in the name of Anarkali Devi containing the plot nos. 395, 396, 397 and 398 of the area in question.
While summing up his argument, learned counsel for the petitioners submits that under the circumstances, there is apparently a bona fide land dispute between the parties and no dishonest intention can be inferred even if, the allegation made in the complaint is taken to be true. According to him, no case 5 Patna High Court Cr.Misc. No.17632 of 2007 dt.14-05-2012 5/7 under Section 379 IPC and/or any other provision of Indian Penal Code is made out. A plea has also been taken that the order taking cognizance is barred by law in terms of Section 468 of the Code of Criminal Procedure.
Learned counsel for the opposite party no. 2 vehemently opposes the prayer made on behalf of the petitioners. He submits that in Title Suit No. 252 of 1995 filed by the opposite party no. 2 involving some portions of 2 Bigha, 14 Kathas and 8 Dhoors of land of opposite party no. 2, the learned Munsif, Sadar Motihari passed an order on 13.1.1997 of injunction against the petitioner no. 1 restraining him from interfering with the possession of opposite party no. 2 over the suit land and also restrained him from damaging the bamboos and plant over the suit land till the disposal of the suit. Against the order dated 13.1.1997, petitioner no. 1 filed a miscellaneous appeal, which too was rejected by order dated 29.8.1998 by the learned 6th A.D.J., Motihari.
He further submits that earlier also in the year 1993, the petitioners had committed theft of bamboos from the bamboo orchard of the opposite party no. 2 for which a case was instituted by the Manager of the opposite party no. 2 against the petitioners. He submits that due to apprehension of breach of piece of land between the parties, proceeding under Section 107 of the Code of Criminal Procedure was also initiated between the parties. According to him, the court below rightly rejected the application of petitioners for discharge.
I have heard the parties at length and perused the record. Admittedly, the date of occurrence as per the prosecution case is 23.10.1996. A supplementary counter affidavit has been filed in this case on behalf of the opposite party no. 2. It is apparent from the arguments advanced in the court and paragraph 7 of the said supplementary counter affidavit that the learned Munsif, Sadar Motihari passed an order of injunction against the petitioner no. 1 on 13.1.1997, restraining him from 6 Patna High Court Cr.Misc. No.17632 of 2007 dt.14-05-2012 6/7 interfering with the possession of the opposite party no. 2 over the suit land and damaging the bamboos and plant over the suit land till disposal of the suit. Thus, from the record, it is crystal clear that the order of injunction was passed in favour of the opposite party no. 2 after more than 2 months of the date of occurrence.
It is an admitted fact that with respect to the land in question over which bamboo orchard is situated, a title suit is going on between the parties. The offence of theft consists in the dishonest taking of any moveable property out of the possession of another without his consent. Dishonest intention exists when the person so taking the property intends to cause wrongful gain to himself or wrongful loss to the other. It is settled law that where a bona fide claim of right exists, it can be a good defence to a prosecution for theft. An act does not amount to theft unless there be not only no legal right but no appearance or colour of a legal right. By the expression "colour of a legal right" what is meant is not a false pretext but a fair pretext, not a complete absence of claim but a bona fide claim, however, weak.
In case of Hamid Ali Baipari vs. Emperor, since reported in A.I.R. 1926 CAL 149. It has been held as under:-
"Does no theft if a person, acting under a mistaken notion of law and believing that certain property is his and that he has the right to take the same.......................... removes such property from the possession of another."
I find myself in complete agreement with the above proposition of law of the Calcutta High Court. In the present case, admittedly there is a bona fide land dispute between the parties which had not, till the date of occurrence, been decided by the civil court. There was no injunction order against the petitioners till the date of occurrence of the present case. There was, thus, a real dispute and a rival claim in respect of the land in dispute existed. The police investigated the case and 7 Patna High Court Cr.Misc. No.17632 of 2007 dt.14-05-2012 7/7 submitted final report holding the dispute to be of a civil nature, the police did not believe the allegation of assault made against the petitioners. There is no apparent injury caused to any one. In such type of cases there is always a chance of exaggeration and embellishment. In such circumstances, even if the allegation of cutting the petitioners bamboo plant or removing the same is believed to be true, the petitioners cannot be held liable for committing an offence punishable under Sections 379 and/or 427 of the Indian Penal Code. The occurrence relates to an incident which took place more than 15 years ago. The complainant admits that a suit is still pending adjudication between the parties in a court of competent jurisdiction.
Based on the aforesaid finding, I am of the view that even if the prosecution story is believed to be true the petitioners were exercising a bonafide claim of right and till that date there was no order of injunction against them. I find there is no sufficient ground to proceed against the petitioners and thus, allowing the prosecution to continue would be an abuse of the process of the Court.
In the result, the application is allowed. The order dated 5.1.2007 passed in Trial No. 839 of 2006 by the learned Sub-Divisional Judicial Magistrate, Sadar Motihari, is set aside, which would mean that the petitioners stand discharged from the case.
Patna High Court, Patna (Ashwani Kumar Singh, J) The 14th May, 2012 Sanjeet/AFR