Jharkhand High Court
Prabha Sharma vs The State Of Jharkhand on 2 July, 2024
Author: Sanjay Kumar Dwivedi
Bench: Sanjay Kumar Dwivedi
IN THE HIGH COURT OF JHARKHAND, RANCHI
Cr.M.P. No. 982 of 2017
1. Prabha Sharma
2. Ravi Shankar Sharma
3. Suman Kumar Bajpai ...Petitioners
Versus
1. The State of Jharkhand
2. Govind Prasad Dalmia ...Opposite Parties
---
CORAM: HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI
---
For the Petitioners : Mr. Pran Pranay, Advocate
For State : Mr. Jitendra Pandey, Advocate
For the opposite party no. 2 : Ms. Amrita Sinha, Advocate
---
03/02.07.2024 Heard the learned counsel for the petitioner as well as the learned counsel for the respondent State and the opposite party no. 2.
2. The prayer in the petition is made for quashing the entire criminal proceeding including the order taking cognizance dated 17.01.2017 passed in connection with G.R. Case No. 360 of 2016 arising out of Deoghar (Town) P.S. Case No. 140 of 2016 pending in the court of learned Chief Judicial Magistrate, Deoghar.
3. The complaint case was filed alleging therein "that which was sent for registration of F.I.R. under section 156 (3) of Cr.P.C. alleging that he is the owner of the 1361 sq. ft. of land situated in presently ward Jhaunsagarhi no. no. 28 within Mouja 582 through registered deed of relinquishment no. 6343/1965. It is also alleged that the accused no 1 in collusion with the other accused persons after playing fraud sold the land through Sale Deed No. 1110 of 2013 in favour of the accused no aforesaid no 4, namely Suman Bajpai. The accused persons applied for mutation before the Circle Office, Deoghar in Mutation Case no. 284/2015-16 and when the informant objected in that proceeding the learned Circle office rejected the mutation proceeding."
4. Learned counsel appearing for the petitioner submits that the Complaint Case No. 1174 of 2015 was registered which was sent to the police and police registered the First Information Report to investigate the matter. Pursuant to that the said P.S. Case was registered and the police investigated the matter and submitted the charge sheet saying that Page 1 of 6 Cr.M.P. No. 982 of 2017 the dispute is civil in nature. The final form is contained in Anenxure-2. He submits that the learned court differing with the final form has been pleased to take cognizance. He submits that, however, in the order taking cognizance it is recorded that protest petition has been filed. He submits that once the protest petition is filed the learned court is required to proceed for enquiring the matter by following the procedure prescribed in the Chapter XV of the Cr.P.C. and in absence to that the learned court has been pleased to take cognizance looking to the several paragraphs of the case diary. He further submits that the petitioner no. 3 has purchased the land, in question, and the petitioner no. 2 is the witness on the sale deed. He submits that the opposite party no. 2 has also instituted the title suit being Title Suit No. 43 of 2015 for the land dispute in question which is still pending and it is at the stage of hearing. He submits that the father of the accused no. 1 has purchased the said land in the name of Panna Lal Gour in the year 1950 and he further submits that the said Panna Lal Gour has subsequently relinquished the said deed in favour of the complainant. He submits that in this background, the learned court has been pleased to take cognizance which is not in accordance with law. He further submits that in that case the investigation was made and police submitted the final forms saying that the case is civil in nature. In this background, it is submitted that the entire criminal proceeding may kindly be quashed.
5. Learned counsel for the State submits that the police has investigated the matter and submitted the final form saying that the dispute is civil in nature.
6. Learned counsel for the opposite party no. 2 submits that the clear case of cheating is made out. In view of that the learned court has rightly taken the cognizance. She draws the attention of the Court to the counter affidavit filed on behalf of the opposite party no. 2 and submits that in the year 2011 the said Shyama Devi Sharma entered into an agreement to sell a part of the property to petitioner no. 3 namely Suman Kumar Bajpai. And the petitioner no. 3 has filed a petition before the Sub-Divisional Officer, Deoghar which was registered as RM Case No. 105 of 2011- 2012 with a prayer to demarcate the alleged land and also for delivery of Page 2 of 6 Cr.M.P. No. 982 of 2017 possession of the same. She further submits that the opposite party no. 2 duly appeared before the Sub-Divisional Magistrate and filed an objection to the same stating inter alia that the said Smt. Shyama Devi has no right title and interest over the property in question and is in possession of the said property since the date of purchase i.e. 1950. She submits that the opposite party no. 2 also sent a letter dated 21.03.2012 to Shyama Devi Sharma stating the entire facts in spite of such objection the said Shyama Devi Sharma with ill intention and in connivance with her children and the petitioner no. 3 sold the said property to petitioner no. 3 by executing the Sale Deed No. 1110 of 2013 and thus the criminalities is made out. She submits that the criminal case and civil case both can go simultaneously if criminality is made out and to buttress her argument she relied in the case of Amit Kapoor vs. Ramesh Chander and another reported in (2012) 9 SCC 460. Relying on the above judgment she submits that this Court may not interfere at this stage. And she further points out that the title suit has reached to the stage of argument. On this ground she submits that petition may kindly be dismissed as the relinquishment deed are found to be true.
7. Admittedly the complaint case was initially instituted which was sent under Section 156(3) Cr.P.C. to the police for registration of the First Information Report and investigation. Pursuant to that Deoghar (Town) P.S. Case No. 140 of 2016 was registered and the police investigated the matter and submitted the charge sheet saying that the dispute is civil in nature. The learned court has been pleased to take cognizance and in the order taking cognizance it is disclosed that on protest petition the learned court has taken cognizance. For the dispute in question one Title Suit No. 43 of 2015 is also pending which has been reached to the final argument as has been pointed out by the learned counsel appearing for the opposite party no. 2. How the dispute has arisen has been opened in the argument of the learned counsel appearing for the opposite party no. 2. It is an admitted position that the sale Deed No. 1110 of 2013 was executed in favour of the petitioner no. 3 and the petitioner nos. 1 and 2 are the witnesses on the said sale deed. The police has already investigated and submitted the charge sheet saying that the Page 3 of 6 Cr.M.P. No. 982 of 2017 matter is civil in nature. In the order taking cognizance a protest petition has been filed and thereafter proceeded for cognizance. Looking to the order taking cognizance, the court finds that the learned court has not followed the procedure prescribed under chapter XV of the Cr.P.C. in the light of section 200 and 202 of Cr.P.C. Once the learned court is taking cognizance on the protest petition the learned court is required to follow the procedure prescribed in the chapter XV of Cr.P.C. There is no doubt that the learned court can take the cognizance even if the final report is there and he may agree with the conclusion of the police and he may not agree with the conclusion of the police and accept the final form and dropped the proceeding. Further he may take cognizance under Section 190(1)(b) of the Cr.P.C. and issue process straightway to the accused without being bound by the conclusion of investigating agency where he satisfied that upon the facts discovered by the police there is sufficient cause to proceed. He may order for further investigation if it is satisfied that the investigation made in a perfunctory manner and further he may issue process and after enquiry witness in the original proceeding of the original complaint of the protest petition treating the same as complaint and proceed to act under Section 200 and 202 of Cr.P.C. and thereafter whether the complaint should be dismissed and process should be issued. The Court further finds that the learned court after looking into the several paragraphs of the case diary taken cognizance on the protest petition if the cognizance is being taken the procedure prescribed in the chapter XV of Cr.P.C. is required to be followed. The reference may be made to the case of Vishnu Kumar Tiwari vs. State of Uttar Pradesh, through Secretary Home, Civil Secretariat, Lucknow & Anr and another reported in (2019) 8 SCC 27 paragraph 8 and 36 of the said judgment are quoted herein:
"8. The order passed by the Chief Judicial Magistrate shows that there is consideration of the protest petition. Neither the Chief Judicial Magistrate nor the Additional Sessions Judge have failed to apply the correct principles of law. In this regard, it is apposite to notice the following observations made in the impugned judgment [Shiv Shanker Ojha v. State of U.P., 2017 SCC OnLine All 2895] of 5 the High Court:
(Shiv Shanker Ojha case [Shiv Shanker Ojha v. State of Page 4 of 6 Cr.M.P. No. 982 of 2017 U.P., 2017 SCC OnLine All 2895] , SCC OnLine All para
10) "10. In Pakhandu v. State of U.P. [Pakhandu v. State of U.P., 2001 SCC OnLine All 967 : (2001) 43 ACC 1096] , it is opined by the Court that in the case of final report the Magistrate has four options: (1) He may agree with the conclusion of the police and accept the final report and drop the proceeding. (2) He may take cognizance under Section 190(1)(b) CrPC and issue process straightaway to the accused without being bound by the conclusion of the investigating agency where he is satisfied that upon the facts discovered by the police, there is sufficient ground to proceed. (3) He may order for further investigation if he is satisfied that the investigation was made in a perfunctory manner. (4) He may without issuing process and dropping the proceedings under Section 190(1)(a) CrPC upon the original complaint or protest petition treating the same as complaint and proceed to act under Sections 200 and 202 CrPC and thereafter whether complaint should be dismissed or process should be issued."
36. A learned Single Judge of the High Court of Allahabad, in the aforesaid decision, had this to say in para 11: (Mohd. Yusuf case [Mohd. Yusuf v. State of U.P., 2007 SCC OnLine All 1283 : 2008 Cri LJ 493] , SCC OnLine All) "11. Where the Magistrate decides to take cognizance under Section 190(1)(b) ignoring the conclusions reached at by the investigating officer and applying his mind independently, he can act only upon the statements of the witnesses recorded by the police in the case diary and material collected during investigation. It is not permissible at that stage to consider any material other than that collected by the investigating officer. In the instant case, the cognizance was taken on the basis of the protest petition and accompanying affidavits. The Magistrate should have adopted the procedure of complaint case under Chapter XV of the Code of Criminal Procedure and recorded the statements of the complainant and the witnesses who had filed affidavits under Sections 200 and 202 CrPC. The Magistrate could not take cognizance under Section 190(1)(b) CrPC on the basis of protest petition and affidavits filed in support thereof. The Magistrate having taken into account extraneous material i.e. protest petition and affidavits while taking cognizance under Section 190(1)(b) CrPC the impugned order is vitiated."
Page 5 of 6 Cr.M.P. No. 982 of 20178. In view of the above this court come to conclusion that the learned court has not followed the procedure in view of the judgment of Vishnu Kumar Tiwari (Supra) the case of the petitioner is covered. There is no doubt if the criminality is made out the criminal case as well as the civil case both can go simultaneously. However at the same time if the criminality is not made out and the procedure is not followed as discussed herein above to allow the proceeding will amount the abuse of process of law.
9. The case relied by the opposite party no. 2 in the case of Amit Kapoor (Supra) the facts are otherwise in that case the charge sheet was submitted and there after the order was passed. The facts of the case are otherwise. In view of that the said judgment was not helping the opposite party no. 2.
10. In view of the above facts, to allow the proceeding to continue will amount to abuse of process of law. As such the entire criminal proceeding including the order taking cognizance dated 17.01.2017 passed in connection with G.R. Case No. 360 of 2016 arising out of Deoghar (Town) P.S. Case No. 140 of 2016 pending in the court of learned Chief Judicial Magistrate, Deoghar is hereby quashed. This petition is allowed and disposed.
11. It is made clear that so far as the title suit which is pending for the final argument that will be decided in accordance with law without being prejudiced of this order and this order has been passed only considering the parameters of criminal aspect of the matter.
(Sanjay Kumar Dwivedi, J.) MM/AFR Page 6 of 6 Cr.M.P. No. 982 of 2017