Patna High Court
Eqbal Alam And Anr. vs State Of Bihar And Anr. on 17 September, 1999
Equivalent citations: 2000(1)BLJR54
Author: S.K. Katriar
Bench: S.K. Katriar
JUDGMENT S.K. Katriar, J.
1. This application at the instance of two accused-petitioners under Section 482 of the Code of Criminal Procedure, 1973, is directed against the order dated 12-4-94, passed by the learned Additional Sessions Judge, Nalanda, at Biharsharif, in Cr. Revision No. 621 of 1992, whereby the revision application has been dismissed, and the order dated 1-10-92, passed by the learned Chief Judicial Magistrate, Nalanda, in complaint case No. 404-C/92, has been upheld. The learned CJM by the said order dated 1-10-92, has taken cognizance of the alleged offences under Sections 120-B, 109, 406 and 420, I.P.C., and has summoned the petitioners herein to stand their trial.
2. According to the allegations in the petition of complaint, O.P. No. 2 herein, the complainant, is the second wife of her late husband, late Rafiqe Alam. Her husband was a prosperous businessman who died a premature death leaving behind a large corpus of properties. He left behind his first wife with seven children, and the present, wife with four children. Petitioner No. 2 is the father of late Rafique Alam and petitioner No. 1 is his full brother. The petitioners and O.P. No. 2 have been living in the same house on different floors.
2.(1) According to the further allegations, after the death of her husband, the petitioner showed concern for the wife and the children of Rafique Alam, and persuaded O.P. No. 2 to entrust the entire properties to the petitioners for effective management and perpetual income. O.P. No. 2 fell in the trap and handed over the entire assets left behind by her husband which included a truck and a tank lorry. The petitioner managed the property and gave some benefits to O.P. No. 2 for about two years or so, but have since then stopped giving all money benefits to her and have also arrogated the entire property entrusted by the opposite party to the petitioners.
3. With these allegations, the aforesaid Complaint Case No. 404-C/ 92 was registered in the Court of learned CJM, Nalanda, who passed the impugned order in the aforesaid manner.
4. Aggrieved by the said order of cognizance dated 1-10-92, the petitioners moved the learned Sessions Judge, Nalanda, in Cr. Revision No. 621/10 of 1992/93 Ekbal Alam v. State of Bihar, which was disposed of by the learned 1st Addl. Sessions Judge, Nalanda, at Biharsharif, by his order dated 12-4-94, whereby the same was rejected and the order of cognizance was upheld. Hence, the present quashing petition.
5. Before t enter into the merits of the matter, I would like to consider the preliminary objection raised by the learned Counsel for Opposite Party No. 2 as to the maintainability of the application. He submitted that this quashing petition is not maintainable in view of the dismissal of the criminal revision application before the learned Addl, Sessions Judge. He has relied on the judgment of the Supreme Court reported in 1990 Suppl. SCC 132 Rajan Kumar Machanda v. State of Karnataka, wherein it has been held that where a revision petition is dismissed by the Sessions Court, a second revision would not lie before the Court. Merely by saying that the jurisdiction of the High Court for exercise of its inherent power was being invoked, the statutory bar could not have been overcome. If that was to be permitted, every revision application facing the bar of Section 397 (2) of the Code would be labelled as one under Section 482 of the Code. On the other hand, learned Counsel for the petitioners submitted that the present quashing petition in the facts and circumstances of the present case is maintainable. He has relied on the judgment of the Supreme Court , Municipal Corporation of Delhi v. Ram Kishen Rohatgi. I am afraid, the proposition laid down therein is not relevant in the present context. The same did not deal with the question in hand, namely, whether, or not a revision application under the inherent powers of the Court would be maintainable before the High Court after the same cause of action has got defeated before the Sessions Judge in revisional jurisdiction. The said judgment dealt with a different question, namely, in view of the bar created by Sections 397 (2) of the Code to the effect that interlocutory orders cannot be challenged before the High Court in criminal revisional jurisdiction, can or cannot the same be agitated before the High Court under the inherent powers. The Supreme Court has held that in extraordinary circumstances, and in the interest of justice, such an application under the inherent powers of the Court would be maintainable even in the case of interlocutory orders faced with the bar created by Section 397(2) of the Code. I, therefore, conclude that the present application in substance being the second attempt on the part of the petitioners to challenge the aforesaid order of the cognizance dated 1-10-92, must be held as not maintainable.
6. Learned Counsel for the petitioners submitted that the dispute raised in the petition of complaint did not make out. a case within the meaning of penal provision under which cognizance has been taken. The same really constitutes a dispute of civil nature. He has, therefore, relied on the judgment of the Supreme Court Trilok Singh v. Satyadeo Tripathi. I am afraid, 1 am unable to accede to the contention of the learned Counsel for the petitioners On a plain reading of the petition complaint, a prima fade case is made out within the meaning of Sections 406, 420, 109 and 120-B, I.P.C. There are clear allegations in the petition of complaint, that O.P. No. 2 herein had entrusted her properties left behind by her late husband to the petitioners, and there is allegation of non-payment of the income of the property after same time. Further more, on the face of it, no case in made out exclusively of civil dispute. There are a large number of cases where the same set of allegations can simultaneously raise a dispute within the meaning of the penal provisions as well as one of civil dispute. The contention is, therefore, rejected.
7. Learned Counsel for the petitioners next submitted that the learned Magistrate ought to have taken greater care before passing the impugned order of cognizance. The petition of complaint sets out an exaggerated version of the entire situation, for example, the petitioners had driven out O.P. No. 2, but she did not sustain any injuries on her body. He has relied on the judgment of the Supreme Court , State of Haryana v. Bhajanlal and laid stress on proposition 7 of the Catalogue of examples mentioned therein entitling the High Court to quash prosecution. It has been laid down vide proposition 7 therein that where a criminal proceeding is manifestly attended with mala fide and/ or where the proceeding is maliciously instituted with the ulterior motive for wracking vengeance on the accused and with a view to spite him due to private and personal grudge.
I am unable to accede to the contention for the reason that the case of the petitioners for purposes of quashing is not covered by proposition No. 7 in Bhajanlal's case (supra). No case of mala fide or personal vengeance has been made out in the present case. In any case, this Court is not entitled to take into account the defence of the accused-persons while disposing of a quashing petition. This contention is, therefore, rejected.
8. Learned Counsel for the petitioners lastly submitted that in view of tire joint family of the parties, the partners are in substance in the position of partners, therefore, it may really be a case of accounting rather than an offence under the penal provisions of the Code. He relied on the judgment of the Supreme Court , Anil Snaran v. State of Bihar, I am unable to accede to the contention of the petitioners that the reported judgment was undoubtedly a case of litigation between two partners who were locked in a partnership firm. The factual position is fundamentally different herein. According to the allegations in the petition of complaint, the entire properties were the self-acquired of late husband of O.P. No. 2.
9. In the result, this quashing petition is dismissed, and the order dated 1-10-92, passed by the learned CJM, Nalanda, in Complaint Case No. 404-C/92, is hereby upheld. Since it is a fairly old case in which a widow in fighting against her in-laws, the trial Court is directed to conclude the trial within a period of six months from the date of receipt/ production of a copy of this order.
10. It goes without saying that the observations made hereinabove are solely for the purpose of disposal of this quashing petition and the trial Court shall conduct the trial completely unmindful of the observations made in this judgment.