Patna High Court - Orders
Yusuf Khan & Ors vs State Of Bihar on 30 January, 2012
Author: Rajendra Kumar
Bench: Rajendra Kumar Mishra, Rajendra Kumar
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Miscellaneous No.45374 of 2008
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1. Yusuf Khan, son of Late Nasrat Khan.
2. Aamir Khan, son of Late Nasrat Khan.
3. Md. Rafiulla Khan, son of Late Kalin Khan.
4. Md. Minhaz Khan, son of Wahiduddin Khan.
5. Md. Kutubbin Khan, son of Late Farik Khan.
All resident of village + P.S. Bikramganj, District-Rohtas.
.... .... Petitioners.
Versus
1. The State Of Bihar.
2. Jauhar Ali Khan, son of Late Md. Yasin Khan, resident of
village + P.S. Bikramganj, District-Rohtas.
.... .... Opposite Parties.
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Appearance :
For the Petitioner/s : M/s. Ashutosh Ranjan Pandey, Anshuman
and Ramanuj Tiwary, Advocates.
For the State : Mr. P.K. Chaurasia, A.P.P.
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CORAM: HONOURABLE MR. JUSTICE RAJENDRA KUMAR
MISHRA
ORAL ORDER
(Per: HONOURABLE MR. JUSTICE RAJENDRA KUMAR
MISHRA)
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4 30-01-2012The petitioners have approached this Court under Section 482 of the Code of Criminal Procedure to quash the order dated 9.8.2007 passed in Complaint Case No.433 of 2006 by the court of Sri R.C. Prasad, Judicial Magistrate, First Class, Bikranganj, summoning the seven accused, named in the complaint petition, including the petitioners, under Section 204 of the Code of Criminal Procedure, on inquiry, finding prima facie case under Sections 420, 467, 468, 323 and 504/34 of the Indian Penal Code.
2. The facts leading to this application is that the opposite 2 Patna High Court Cr.Misc. No.45374 of 2008 (4) dt.30-01-2012 2/4 party no.2, Jauhar Ali Khan, filed the Complaint Case No.433 of 2006 in the court of Sub Divisional Judicial Magistrate, Bikramganj, against seven persons, named in the complaint petition, including the petitioners alleging therein that the land was partitioned by metes and bounds in the year 1973. Accordingly, Plot No.1005 measuring an area of 10 decimals was being cultivated by him and Plot No.1007 measuring an area of 10 decimals was being cultivated by the accused-petitioner nos.1 and 2, namely, Yusuf Khan and Aamir Khan. Both the plots are of Khata No.365 of village-Bikramganj. The Khatiyan is in the name of Bibi Madiran, the own aunt of Late Md. Yasin Khan, the father of the opposite party no.2, who died issuless. It is alleged by the opposite party no.2 that all the accused under conspiracy on 29.6.2006 got executed the sale deed in the Registry Office, Bikramganj, in favour of the accused-petitioner no.4, Md. Minhaz Khan. It is further alleged by the opposite party no.2 that when the rumour spread in the village regarding the sale deed, he went to the Registry Office and obtained the copy of the sale deed, then came to know that the accused-petitioner nos.1 and 2, namely, Yusuf Khan and Aamir Khan and the accused, Jahangir Khan, are the vendors, who have executed the sale deed in favour of the accused-petitioner no.4, Md. Minhaz Khan. On the sale deed, the accused-petitioner no.3, Md. Rafiulla Khan, is identifier whereas the 3 Patna High Court Cr.Misc. No.45374 of 2008 (4) dt.30-01-2012 3/4 accused-petitioner no.4, Md. Minhaz Khan, is witness and the accused, Md. Gulam, is deed -writer. Thereafter, on 20.7.2006, the opposite party no.2 approached the accused persons including the petitioners about executing the forged sale deed, then they became angry and also misbehaved with him by abusing and assault.
3. After filing of the aforesaid complaint petition by the opposite party no.2, on inquiry under Section 202 of the Code of Criminal Procedure, the court of Sri R.C. Prasad, Judicial Magistrate, Ist Class, Bikramganj, summoned the accused, named in the complaint petition, including the petitioners finding prima facie case under Sections 420, 467, 468, 323 and 504/34 of the Indian Penal Code.
4. Learned counsel appearing on behalf of the petitioners made submission that from the complaint petition itself, it is clear that the dispute is of civil in nature. Moreover, while the opposite party no.2 has claimed about the partition in the year 1973 but it would appear from Annexure-'5' to this application, which is a copy of the plaint of Partition Suit No.339 of 2006, that the opposite party no.2 has filed the partition suit regarding the property covering the plots in dispute against the accused-petitioner nos.1 and 2, namely, Yusuf Khan and Aamir Khan and the accused, Jahangir Khan.
5. From perusal of the complaint petition, it appears that the 4 Patna High Court Cr.Misc. No.45374 of 2008 (4) dt.30-01-2012 4/4 allegation of the opposite party no.2 is about executing the sale deed in respect to his land by the accused-petitioner nos.1 and 2 and the accused, Jahangir Khan, in favour of the accused-petitioner no.4, Md. Minhaz Khan. Annexure-'5' to this application, which is the copy of the plaint of Partition Suit No.339 of 2006 disclosed that the opposite party no.2 filed the Partition Suit regarding the property as detailed in Schedule-'K' including the plot in dispute by detailing also the pedigree of the family on 3.8.2006, just three days before the filing of the complaint petition. The averments of the complaint petition on which basis the summoning order has been passed would amount to civil liability inter se the parties and no criminal liability can be attributed to the petitioners and the other accused, named in the complaint petition. As such, summoning the accused-petitioners through the impugned order, would amount to an abuse of the process of the court.
6. Accordingly, the impugned order dated 9.8.2007 passed by the court of Sri R.C. Prasad, Judicial Magistrate, First Class, Bikramganj, in Complaint Case No.433 of 2006, with respect to the petitioners, is hereby quashed and the application is allowed.
(Rajendra Kumar Mishra, J.) P.S./-