Patna High Court
Bishundeo Gope @ Bishundeo Yadav & Ors vs State Of Bihar & Anr on 2 March, 2012
Author: Aditya Kumar Trivedi
Bench: Aditya Kumar Trivedi
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Miscellaneous No.13453 of 2010
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Bishundeo Gope alias Bishundeo Yadav, son of Late Krishna Gope, resident of Mohalla-
Singar Hat-Baulipar, P.S.-Bihar, District-Nalanda. .... .... Petitioner.
Versus
1. The State of Bihar.
2. Anil Kumar, son of Chote lal Mahto, resident of Mohalla-Baulipar (Mogal Kuna),
P.S.-Bihar, District-Nalanda. .... .... Opposite Parties.
with
Criminal Miscellaneous No. 14240 of 2010
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1. Bishundeo Gope alias Bishundeo Yadav, son of Late Krishna Gope.
2. Indu Devi, wife of Bishundeo Gope alias Bishundeo Yadav, residents of Mohalla-
Singar Hat-Baulipar, P.S.-Bihar, Dist.-Nalanda.
3. Sarita Devi D/O Late Krishna Gope.
4. Bacchi Devi, wife of Brahmdeo Gope, both residents of village-Patuana, P.S.-Bihar,
Dist.-Nalanda.
5. Amarjeet Kumar, S/O Rambali Prasad, resident of village-Sampati Bigha, P.S.-
Islampur, Dist.-Nalanda. .... .... Petitioners.
Versus
1. The State Of Bihar
2. Anil Kumar, son of Chote lal Mahto, resident of Mohalla-Baulipar (Mogal Kuna), P.S.-
Bihar, District-Nalanda. .... .... Opposite Parties.
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Appearance :
(In Cr.Misc. No. 13453 of 2010)
For the Petitioners : Mr. Alok Kumar Sinha No.1.
Mr. Bhola Kumar
For the State : Mrs. Pushpa Sinha, A.P.P.
For the Opposite Party No.2 : Mr. Anil Kumar No.1.
(In Cr.Misc. No. 14240 of 2010)
For the Petitioners : Mr. Alok Kumar Sinha No.1.
Mr. Bhola Kumar
For the State : Mr. Binod Kumar, A.P.P.
For the Opposite Party No.2 : Mr. Anil Kumar No.1.
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CORAM: HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI
C.A.V. JUDGMENT
Date: 02-03-2012
A.K. Trivedi, J.Criminal Miscellaneous No.13453 of 2010 and Criminal Miscellaneous No. 14240 of 2010 with the consent of the parties have been heard analogously and are being disposed of by a common order.
In Criminal Miscellaneous No.13453 of 2010 Bishundeo -2- Gope alias Bishundeo Yadav happens to be the sole petitioner who has prayed for quashing of order dated 02.01.2010 passed by learned Chief Judicial Magistrate, Nalanda at Bihar Sharif in connection with Bihar P.S. Case No.342 of 2009, G.R. No.3071 of 2009 whereby and where under petitioner has been summoned to face trial for an offence punishable under Section 341, 323, 448, 389 of the I.P.C. In Criminal Miscellaneous No. 14240 of 2010 there are altogether five petitioners, namely, Bishundeo Gope alias Bishundeo Yadav, Indu Devi, Sarita Devi , Bacchi Devi and Amarjeet Kumar. The same has been filed for quashing of order dated 09.11.2009 passed by learned Chief Judicial Magistrate, Nalanda at Bihar Sharif in Bihar P.S. Case No.292 of 2009, G.R. No.2504 of 2009 whereby and whereunder petitioners have been summoned to face trial for an offence punishable under Section 448, 452, 379, 386/34 of the I.P.C.
Both the cases have been instituted by Opposite party no.2, Anil Kumar.
Shorn of unnecessary details, the facts of both the cases are independently dealt with.
(a) Criminal Miscellaneous No.13453 of 2010.
Anil Kumar (Opposite party no.2) filed written report on 26.11.2009 disclosing therein that on 25.11.2009 at about 04:40 P.M. Bishundeo Gope and his 7-8 associates came on Bollero jeep. After parking it in front of gate, they all made house trespass, begun to assault the students, ransacked the house. Then assaulted Biresh Kumar with fist and slap and after pointing pistol towards him, took away wrist watch, torch and invertor. Then they threaten the students to vacate the house otherwise they will be severely dealt with. After registration of the case bearing Bihar -3- P.S. Case No.342 of 2009 investigation was taken up and after completing the same, charge sheet was submitted whereupon the learned lower court vide order impugned summoned the petitioner to face trial.
(b) Criminal Miscellaneous No. 14240 of 2010.
Opposite party no.2, Anil Kumar filed written report disclosing therein that he is running private school in the house of Bhattu Mahto standing over Plot No.1165, 1223 since long. In due course of time, they have negotiated and the deal was finalized over Rs.09,05,000/-. He paid Rs.2,00,000/- on 12.02.2004 to Bhattu Mahto who accordingly executed deed of Mahadanama. Subsequently, he offered remaining amount but Bhattu Mahto began to avoid and on account thereof, he had instituted Title Suit No.41 of 2007 under banner of Specific Relief Act. While the aforesaid suit is still pending, Bhattu Mahto negotiated with Bishundeo Gope and executed sale deed in his favour. On 20.09.2009 while he along with his family members were away, Bishundeo Gope along with his family members made house trespass and removed all his belongings. They have also taken away cash, ornaments, original documents, passbook etc. Bishundeo Gope is forcibly residing in the house and has not permitted the students to come inside. Later on, he has been informed by his staff and then has instituted instant case. After registration of the case, investigation commenced and after concluding the same charge sheet was submitted on account of which petitioners have been summoned to face trial by the order impugned.
Contention on behalf of the petitioners are that from scrutiny of F.I.R. of both the cases, it is evident that the Opposite party no.2 had himself admitted that petitioner along with others are residing in his -4- house since 20.09.2009. Therefore, the allegation whatever been alleged in the Bihar P.S. Case No.342 of 2009 appears to be palpably false. When the petitioners are already residing in the house, then in that event there was no occasion for the Opposite party no.2 to have his as well as his student presence at the disputed house at subsequent stage. Then submitted that it is also an admitted fact that the aforesaid Bhattu Mahto had already transferred his land to the petitioner, Bishundeo Gope for valid consideration and had handed over possession thereof. It is also disclosed in the F.I,R. of Bihar P.S. Case No.292 of 2009 that opposite party no.2 had drawn up Title Suit No.41 of 2007 under Specific Relief Act which is still pending. The most surprising feature as is evident from Annexure-5, plaint of Title Suit No.41 of 2007 is that petitioner has also been arrayed as one of the defendant. It is evident from the conduct of the opposite party no.2 that he is trying to make out a case of possession and dispossession to get undue advantage in Title Suit No.41 of 2007. In the aforesaid background, it has further been submitted that both the versions have become untrue as the opposite party no.2 never disclosed or brought up by way of amendment in Title Suit No.41 of 2007 and further failed to disclose the event of possession as well as dispossession. Apart from this, the nature of transaction gives a complete picturization of civil dispute than the criminal dispute and so the instant proceeding is nothing but an absurd story, consequent thereupon, both the proceedings are fit to be quashed.
At the other hand, it has been submitted on behalf of opposite party no.2 that order of cognizance is just, legal and proper and so is fit to be confirmed. Further submitted that at the relevant stage, the Magistrate has to see prima facie material which, the case diary of -5- respective cases contain and accordingly, justify subsistence of the order impugned. Then submitted that even having a civil cause, will not debar launching of criminal prosecution when both two have got independent cause attracting independent application. So submitted that the order passed by learned Chief Judicial Magistrate is fit to be confirmed.
The learned Additional Public Prosecutor followed the argument raised on behalf of opposite party no.2. Further adding, submitted that presence of prima facie material justifies the order impugned. The Chief Judicial Magistrate at this stage is not at all required to make a roaming inquiry. Therefore, the prayer of the petitioners made under both independent petitions is fit to be dethroned.
After hearing the parties and going through the relevant Annexures, it is evident that neither the O.P. No.2 Anil Kumar nor petitioner, Bishundeo Gope alias Bishundeo Yadav happens to be recorded tenant of the land. The land in question admittedly belonged to one Bhattu Mahto who had executed sale deed in favour of petitioner, Bishundeo Gope alias Bishundeo Yadav while the opposite party no.2 pleaded to have negotiation at an earlier stage with Bhattu Mahto and for that Title Suit No.41 of 2007 has been filed under Specific Relief Act and the verdict is yet to come. In the aforesaid background, it is evident that in Bihar P.S. Case No.292 of 2009, opposite party no.2 had already pleaded dispossession since 20.09.2009 while in Bihar P.S. Case No.342 of 2009, shown the petitioner along with 7-8 persons making house trespass, subsequently. How it could be found to be feasible is a matter of concern that too in the background that O.P. No.2 remained silent through different annexures as well as during oral submission. Apart from this non-discloser, in the plaint of Title Suit No.41 -6- of 2007 wherein petitioner Bishundeo Gope had subsequently been impleaded, is other circumstances to be taken cared of at least for forming a prima facie opinion with regard to assertion of O.P. No.2.
So far status of proposed transferee is concerned, in a decision reported in 2004 (8) SCC 614 at para-10, it has been held "protection under Section 53A of the Act to the proposed transferee is a shield only against the transferor. It disentitles the transferor from disturbing the possession of the proposed transferee who is put in possession in pursuance to such an agreement. It has nothing to do with the ownership of the proposed transferor who remains full owner of the property till it is legally conveyed by executing a registered sale deed in favour of the transferee. Such a right to protect possession against the proposed vendor cannot be pressed into service against a third party." Therefore, legally opposite party no.2 was not at all competent to seek such immunity so far possession is concerned against Bisundeo Gope, one of the petitioners.
After analyzing series of decisions, the Hon'ble Apex Court in a decision reported in 2012(1) B.B.C.J. 178 (SC) has observed that "if there is a flavor of civil nature, the same cannot be agitated in the form of criminal proceeding. If there is a huge delay and in order to avoid the period of limitation, it cannot be resulted to a criminal proceeding".
After going through F.I.R. of both the cases as referred above, it is evident that the allegation of Bihar P.S. Case No.292 of 2009 falling under purview of Criminal Miscellaneous No. 14240 of 2010 undone the allegation made under Bihar P.S. Case No.342 of 2009. So far allegation -7- made under Bihar P.S. Case No.292 of 2009 is concerned, in the background of the events as disclosed above, it is evident that same has been levelled only to buttress the claim made under Title Suit No.41 of 2007.
At this score one should not loss cite of the principle enunciated by the Hon'ble Apex Court as reported in AIR 1992 SC 604 State of Hariyana & Ors. Versus Bhajan Lal & Ors. wherein following criteries have been identified for invoking the extraordinary power either under Section 482 of the Cr.P.C. or under Article 226 of the Constitution for the purpose of quashing.
"(1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.
(2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155 (2) of the Code.
(3) Where the uncontroveretd allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.
(4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, on investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.
(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient grounds for proceedings against the accused.
(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceedings is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.
(7) Where a criminal proceeding is manifestly attended with malafide and/or where the proceeding is maliciously -8- instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge."
Because of the fact that the order impugned is based upon the allegation so put forward under respective F.I.R. followed with investigation but the fact remains that the genesis of institution of the case appears to be relucented by conclusion of Title Suit No.41 of 2007. With regard to allegation so put forward as discussed in the fore-going paragraphs appear to be deviously planned and on account thereof should not be allowed to continue. Consequent thereupon, the order dated 02.01.2010 passed in Bihar P.S. Case No.342 of 2009, order dated 09.01.2009 passed in Bihar P.S. Case No.292 of 2009 appears to be non-sustainable in the eye of law. Hence, both the orders are quashed. Thus both the petitions are allowed.
PATNA HIGH COURT (Aditya Kumar Trivedi, J.) DATED, THE 2nd MARCH, 2012 A.F.R./PRAKASH NARAYAN