Patna High Court - Orders
Rajendra Prasad Sharma & Ors. vs The State Of Bihar & Anr on 16 October, 2012
Author: Shivaji Pandey
Bench: Shivaji Pandey
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Miscellaneous No.8398 of 2011
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1. Rajendra Prasad Sharma , son of late Dwarika Singh
2. Madan Mohan Pd. Sharma, son of late Dwarika Singh
3. Krishnadeo Pd. Sharma, son of late Kedar Pd. Sharma
4. Karuna Abhay Krisha @ Kallu, son of Krishnadeo Pd. Sharma
5. Bhagirath Pd. Sharma, son of late Loknath Singh
6. Dilip Kumar, son of Bhagirath Prasad Sharma
7. Chunnu Singh, son of Rajendra Sharma
8. Pankaj Singh, son of Rajendra Sharma
9. Amit Kumar, son of late Anil Singh.
10. Rahul Kumar, son of late Anil Singh, all resident of Village-Pandarak,
Police Station- Pandarak, District- Patna.
.... .... Petitioner/s
Versus
1. The State Of Bihar
2. Lachho Singh, son of late Munshi Singh, resident of Village- Pandarak,
Police Station-Pandarak, District- Patna.
.... .... Opposite Party/s
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Appearance :
For the Petitioner/s : Mr. Manish Kumar No.2, Advocate.
For the Opposite Party/s : Mr.
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CORAM: HONOURABLE MR. JUSTICE SHIVAJI PANDEY
ORAL ORDER
3 16-10-2012Heard learned counsel for the petitioners and learned counsel for the State.
This application has been filed for quashing the order dated 25.6.2010 passed in Complaint Case No.157-C of 2010 by the Judicial Magistrate, Ist Class, Barh by which he has taken cognizance against the petitioners under Section 11 of the Prevention of Cruelty to Animal Act, 1960 and Sections 429 and 504 of the Indian Penal Code.
From the record it appears that the parties were in litigating term with regard to Khata No. 486, Kheshra No. Patna High Court Cr.Misc. No.8398 of 2011 (3) dt.16-10-2012 2 5805, area 36 decimals and Khata No.1664, Kheshra No.5804, area 25 decimals. There was a suit in between the parties and ultimately the matter came before this Court in Second Appeal vide S.A. No. 1619 of 1947 where this Court had finally decided the litigation in between the parties and this Court vide judgment and decree dated 30.8.1948 passed the consented judgment in the following terms:
" It is ordered and decreed by consent of parties that with the exception of respondent nos. 8-23, this appeal be and the same is hereby disposed of in terms of the compromise petition and the compromise petition along with the map annexed hereto shall for part of the decree."
The compromise petition is part of the decree. On perusal of the compromise petition it appears that the parties had agreed with regard to the land in dispute to the share of the petitioners of the present case. In pursuance of the consented decree, time to time rent receipts were issued by State of Bihar in favour of the petitioners. The dispute arose as both parties were claiming possession making effort for police protection. Both the parties had filed criminal writ petitions vide Cr.W.J.C. No. 708 of 2007 and Cr.W.J.C. No. 240 of 2009 and this Court vide order dated 17.9.2008 disposed off Cr.W.J.C. N0 708 of 2007 in the following Patna High Court Cr.Misc. No.8398 of 2011 (3) dt.16-10-2012 3 term:
" In view of the aforesaid discussions, this Court directs the petitioner to file a detailed representation to the SDO and the S.P. concerned for providing him necessary security for cultivation and enjoyment of his land in question. In case one such representation is filed along with a copy of the decree order passed in the aforesaid SA the respondents will provide necessary security to the petitioner as and when required."
In pursuance of the aforesaid order the parties approached to the Sub Divisional Officer and that was registered as Misc. Case No.349 of 2009. The S.D.O. Court in pursuance of the direction passed by this Court disposed of the matter vide order dated 6.10.2009 where he examined the documents filed by both the parties and passed the order in favour of the petitioners and found that there was no material evidence or judgment and decree of any court to support the claim of the opposite party and accordingly the S.D.O. court held that unless there would be some judgment from the court of competent jurisdiction it would not be possible to interfere with the possession of the petitioners. It also appears from the record that in order to execute the order passed by the S.D.O., the police force was deputed and the police force removed the cattle and brought the same at "Kani House" which is apparent from the report submitted Patna High Court Cr.Misc. No.8398 of 2011 (3) dt.16-10-2012 4 by the Police Inspector, Pandarak, police station on 31.3.2010. From this report it is apparent that it is the police who had removed the cattle and brought the same at "Kani House" situated at Mokama.
Learned counsel for the petitioners has submitted that similar type of case was filed by one Shashi Singh bearing Complaint Case No.229-C of 2010 where the same and similar allegation were made with regard to commission of cruelty with the animals and later on he had withdrawn the case on the ground of compromise and the court in view of the compromise petition had dropped the proceeding vide order dated 23.7.2010 and thereafter the present complaint petition has been filed where similar allegation has been made by the present complainant against the petitioners. He further submits that it is completely a malicious prosecution and cattle were removed by the police in execution of the order passed by the S.D.O. and as such allegation made by the complainant about removing and any way harming the cattle physically is completely false and fabricated statement and as such the order of cognizance and continuation of proceeding thereafter is an abuse of the process of the court.
Opposite party no.2, even after notice has not chosen Patna High Court Cr.Misc. No.8398 of 2011 (3) dt.16-10-2012 5 to appear and contest the case. In this view of the matter, this Court has to decide the case in absence of opposite party no.2.
From the record it appears that it is related to commission of cruelty with the animals and it is apparent that the land in question was decreed in favour of the petitioners and the court of the S.D.O. refused to interfere with the possession of the petitioners, so much so, it is the police who removed the cattle from the disputed plot and it is clear that this case has been filed on a misplaced fact and prima facie appears, this case is nothing but malicious prosecution.
Accordingly the order of cognizance dated 25.6.2010 and subsequent proceeding is quashed. Accordingly this application is allowed.
Vinay/- (Shivaji Pandey, J)