Patna High Court
Syed Ezaz Hussain Zaidi vs The State Of Bihar & Anr on 21 April, 2010
Author: Rakesh Kumar
Bench: Rakesh Kumar
Criminal Miscellaneous No.13549 OF 1999
In the matter of an application under Section 482 of the Code
of Criminal Procedure
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Syed Ezaz Hussain Zaidi, Son of Syed Irshad Hussain Zaidi ,
resident of Mohalla-Khalifabag, Police Station-Bhagalpur
Kotwali, District-Bhagalpur ---------- Petitioner
Versus
1. THE STATE OF BIHAR
2. Mossamat Sabitri Devi, Wife of Late Chhedilal Rajak,
resident of Mohalla- Khalifabag, Gurudwara Road, Police
Station-Bhagalpur Kotwali, District-Bhagalpur -- Opp.Parties
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For the petitioner : Mr. Braj Nandan Kumar Tiwary, Adv.
For Opp.Party No.2: Mr.Syed M.Ashraf , Advocate
For the State : Mrs. Indu Kumari Srivastava, Adv.
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PRESENT
THE HON'BLE MR. JUSTICE RAKESH KUMAR
Rakesh Kumar, J.The sole petitioner, while invoking inherent jurisdiction of this Court under Section 482 of the Code of Criminal Procedure, has prayed for quashing of the entire criminal proceeding in Complaint Case No.811 of 1998, pending in the court of Sri V.K.Singh, Judicial Magistrate, 1st Class, Bhagalpur as well as for quashing of the order dated 3.5.1999 passed by the learned Judicial Magistrate, 1st Class, Bhagalpur. By the said order, the learned Magistrate has taken cognizance of offences under Section 406 and 407 of the Indian Penal Code and Section 3 of SC/ST (Prevention of Atrocities) Act 1989.
2. Short fact of the case is that the Opp.Party no.2, who claims to be a Harijan , filed a complaint case vide Complaint Case No.811 of 1998 in the court of the learned Chief Judicial Magistrate, Bhagalpur alleging therein that the petitioner had committed a 2 criminal breach of trust as well as offence under Scheduled Castes & Scheduled Tribes (Prevention of Atrocities ) Act. It was disclosed in the complaint petition that the complainant was the owner of about 1800 Sq.ft of land appertaining to Khata No.31, Khesra No.507, situated at Gurudwara Road, Police Station-Kotwali , Bhagalpur . On persuasion of the petitioner, an agreement was entered into between the parties and the complainant was persuaded that if she executes the agreement, the accused will develop a building over the land in question and on the ground floor of the proposed premises, a room of 400 Sq.ft. would be given to the complainant. It was also agreed that out of proceeds from the constructed portion, 30 % share will be given to the complainant. As per the agreement, the building was to be constructed within a specified time. However, it was alleged by the complainant that by alluring the complainant , the agreement was got signed and thereafter her dilapidated house was dismantled, which is standing on the land in question and thereafter , despite the fact , the building was constructed the complainant was not given her share and, as such, it was alleged by the complainant that accused persons had committed offences as alleged above.
3. After filing of the complainant, the complainant was examined on S.A. and two witnesses were examined in support of the complainant. During the enquiry, some documents were also produced by the complainant. After examining the evidence as well as the materials available on record, the learned Magistrate by the impugned order has taken cognizance of offences as mentioned above. 3
4. Sri Braj Nandan Kumar Tiwary, learned counsel appearing on behalf of petitioner has challenged the initiation of criminal proceeding as well as order of cognizance on the ground that since both the parties had entered into an agreement, it can be hardly termed as breach of contract and not as a criminal breach of contract. He further submits that after execution of the agreement, while the petitioner started to construct the building over the land in question, the same was prevented due to reason that some of the family members of the complainant had filed a suit in the competent court. He further submits that over the land in question, Section 144 Cr.P.C. was initiated and this was also one of the reasons in delaying the commencement / completion of the work. He submits that the petitioner has not committed any offence. While referring to a Judgment of the Hon'ble Supreme Court, reported in A.I.R. 1999 SC 1480 ( Nageshwar Prasad Singh alias Sinha Vs. Narayan Singh & Anr.) ,learned counsel for the petitioner submits that since in the present case there was an agreement, the complainant may not be allowed to proceed with the criminal case against the petitioner. He submits that the facts and circumstances of the case categorically indicate that the dispute was completely of civil in nature and on those grounds the learned counsel for the petitioner has prayed for quashing of the order of cognizance as well as the entire proceeding in Complaint Case No.811 of 1998 pending in the court of the learned Judicial Magistrate, 1st Class, Bhagalpur.
5. Sri Syed M. Ashraf, learned counsel appearing on 4 behalf of Opp.Party no.2 has vehemently opposed the prayer of the petitioner. He submits that right from the inception the intention of the petitioner was to cheat the complainant. He further submits that the complainant is a poor Harijan lady and she was dispossessed from the old premises on the false assurance given by the petitioner. He further submits that in view of the facts and circumstances of the present case, the complainant was entitled to invoke both the procedures i.e. civil as well as present criminal case and criminal case in the present case is not barred due to the reason that it is a clear-cut case of criminal breach of trust as well as dispossessing a Harijan lady from her premises in a designed manner. He further submits that the petitioner has purposely not brought the entire thing on the record. He submits that besides complaint petition, during the statements recorded on S.A., the complainant had categorically described about the offences committed by this petitioner and allegation was also supported and corroborated by the two witnesses, who were examined on behalf of the complainant before the cognizance. He further submits that since there were specific materials available before the learned Magistrate, the learned Magistrate has rightly taken cognizance and ordered to proceed with the case of the complainant.
6. Besides hearing learned counsel for the parties, I have also examined the materials available on the record, particularly the complaint petition and the impugned order of cognizance. The complaint petition, I am of the view, discloses the commission of offences. The learned Magistrate, while taking cognizance, by its order 5 dated 3.5.1999 has committed no error. I do not find any merit in the present petition and accordingly the petition stands rejected.
7. In this case, while issuing notice to Opp.Party no.2 by an order dated 28.7.1999, this Court had directed that until further orders, further proceedings in Complaint Case No.811 of 1998 pending in the court of Sri V.K.Singh , Judicial Magistrate, 1st Class, Bhagalpur, shall remain stayed. Subsequently, on 8.10.1999 this case was admitted for hearing and while admitting this case, this Court had directed that pending hearing of this application interim order passed by this Court on 28.7.1999 shall continue. In view of rejection of the present petition, the order of stay stands automatically vacated.
Let a copy of this order be sent to the court below forthwith.
( Rakesh Kumar, J ) Patna High Court,Patna Dated : the 21st April,2010 Nawal Kishore Singh/ N.A.F.R.