Patna High Court
Shama Alam & Ors vs The State Of Bihar on 7 September, 2010
Author: Rakesh Kumar
Bench: Rakesh Kumar
CRIMINAL MISCELLANEOUS NO.23301 of 2001
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In the matter of an application under Section 482
of the Code of Criminal Procedure,1973.
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1. SHAMA ALAM
2. AFTAB ALAM @ KARMCHARI
3. TUNTUN ALAM
4. MANNU ALAM
ALL SONS OF MD. ALAM
5. SAGIR ALAM SON OF ILTAF MIAN
6. NANHAY @ NAZIR ALAM SON OF SAGIR ALAM
7. ANIS ALAM SON OF SHAMA ALAM
8. SUTTU MIAN SON OF SALMAN MIAN
ALL RESIDENT OF VILLAGE SARYA NARANDER, P.S. BARAULI,
DISTRICT GOPALGANJ.
9. ISTAKHAR @ MUNNA MIAN
RESIDENT OF VILLAGE MAYA HALIM TOLA, P.S. BARHARIA,
DISTRICT SIWAN.
... ... PETITIONERS.
Versus
1. THE STATE OF BIHAR
2. MANAN SHARMA SON OF LATE NAULI SHARMA, RESIDENT OF
VILLAGE SARYA NARANDER, P.S. BARAULI, DISTRICT
GOPALGANJ.
... ... OPPOSITE PARTIES.
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For the Petitioners : M/S Farooque Ahmad Khan, Adv.
Sufiyan, Adv.
For O.P. No.2 : Mr. Ashok Kumar Jha, Adv.
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P R E S E N T
THE HON'BLE MR. JUSTICE RAKESH KUMAR
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Rakesh Kumar,J. The present petition under Section
482 of the Code of Criminal Procedure has
been filed by nine petitioners against the
order dated 27.7.2001 passed by Sub
Divisional Judicial Magistrate, Gopalganj
in Complaint Case No.477 of 2000, Tr.
No.1096 of 2001, whereby the learned
Magistrate has rejected the discharge
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petition filed on behalf of the
petitioners.
2. Short fact of the case is that
opposite party no.2 filed a complaint in
the court of Chief Judicial Magistrate,
Gopalganj, which was numbered as Complaint
Case No.477 of 2001 against aforesaid
petitioners for committing offence under
Sections 468, 471 and 477 of the Indian
Penal Code. It was disclosed by the
complainant that on 7.11.2001, all the
accused persons formed an unlawful assembly
and came to the plot appertaining to Khata
No.156, Survey No.2032, measuring 2 katha 3
dhur with a view to grab the land and
started to remove hut of the complainant.
After hearing, son of informant also
arrived at the place of occurrence. The
accused persons were armed with lathi,
bhala etc. The son of the informant tried
to restrain the accused persons.
Thereafter, Accused No.1 (petitioner no.1)
and his two sons started assaulting the
complainant and his son by fist and slaps
and threw the planee (hut) and also removed
bamboos and bricks. The complainant
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suffered a loss of about Rs.20,000/-. The
complainant, in respect of the said
occurrence, filed a case in the court of
Chief Judicial Magistrate. The learned
Chief Judicial Magistrate, under Section
192(1) of the Code of Criminal Procedure,
transferred the record of the case to the
court of learned Sub Divisional Judicial
Magistrate for its enquiry and disposal in
which learned Sub Divisional Judicial
Magistrate, by its order dated 25.11.2000,
took cognizance of offence under Sections
147, 148, 323, 379 and 427 of the Indian
Penal Code and summoned the accused
persons. Thereafter, on 1.2.2001, all the
accused persons produced a certified copy
of sale deed dated 22.1.1926, which was
purported to be executed by grand father of
complainant namely, Kishun Lohar in the
name of Sheikh Amin Mian. It was alleged by
the complainant that the accused persons,
with a view to fraudulently grab the
properties of the complainant, had filed
forged certified copy in the court and as
such on the prayer made by the complainant,
the said certified copy was seized by the
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court. Thereafter, the complainant sent his
advocate Shri Arun Kumar Sinha to
registration office Chapra for bringing
certified copy of the said document. On
13.2.2001, learned advocate of the
complainant Shri Arun Kumar Sinha filed an
application vide Application No.1978 dated
13.2.2001 for obtaining certified copy of
the said document. However, same was
returned after making endorsement on the
said application that perusal of the cover
shows the document as doubtful and as such
no certified copy can be issued. On perusal
of the cover of the Volume-3, Pages 278 to
279, it appears that some documents
prepared in the script of Urdu was got
removed by using ink remover and as such it
was alleged by the complainant that all the
accused persons, after committing forgery,
had produced certified copy of the document
in the court. The complainant further
alleged in the complaint petition that this
fact has come to the notice that accused
persons, after making payment of huge money
to some of the employees of the
registration office, had brought the said
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volume out of the office and by using ink
remover in place of writing in Urdu script,
after removing the same, it was written in
Hindi (Kaithi). Even signature put within
the seal was also got removed by using ink
remover and was written as Kishun Lohar,
which was apparent by the naked eyes. The
learned Sub Divisional Judicial Magistrate
had summoned Book No.1, Vol.-3 and same was
got exhibited. It was alleged that the
accused persons had intentionally committed
forgery in the record and produced the same
in the court. On aforesaid allegation,
complaint was filed in the court of Chief
Judicial Magistrate and the learned Chief
Judicial Magistrate, under Section 192(1)
of the Code of Criminal Procedure,
transferred the said complaint to court of
Sub Divisional Judicial Magistrate for its
enquiry and disposal. During enquiry, the
complainant's statement on oath was
recorded and besides this two witnesses
were produced by the complainant in support
of the complaint case. Amongst witnesses,
one of the witnesses was handwriting and
finger print expert. The learned Sub
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Divisional Judicial Magistrate, after
conducting enquiry, was prima facie,
satisfied that offence under Sections 471
and 468 of the Indian Penal code was made
out against accused persons and as such by
order dated 31.3.2001 directed for
summoning the accused persons. At the stage
of trial, a petition for discharge was
filed on behalf of all the petitioners.
However, the learned Sub Divisional
Judicial Magistrate, by its order dated
27.7.2001, was satisfied with the material
for framing of the charge for offence under
Sections 468 and 471/34 of the Indian Penal
code and rejected the discharge petition
and fixed the date to 16.8.2001 for charge.
3. Aggrieved with the order dated
27.7.2001, the petitioners approached this
Court by filing the present petition. On
24.1.2002, while issuing notice to opposite
party no.2, this Court directed that till
the next date of hearing, further
proceeding in Complaint Case No.477 of 2000
pending in the court of Sub Divisional
Judicial Magistrate, Gopalganj shall remain
stayed. Thereafter, on 9.5.2003, the case
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was admitted for hearing and it was
directed that in the meantime, interim
order dated 24.1.2002 shall continue and
order of stay is still continuing.
4. Mr. Farooque Ahmad Khan, learned
counsel appearing on behalf of the
petitioners, at the very outset, has argued
that in the facts and circumstances of the
present case, either the Registrar, Chapra
was entitled to file complaint or the
learned Sub Divisional Judicial Magistrate,
Gopalganj was competent to file a
complaint. Since the allegation was mainly
purports to have been committed in the
registry office at Chapra and it was filed
in the court of Sub Divisional Judicial
Magistrate at Gopalganj, it was either the
Sub Divisional Judicial Magistrate or the
Registrar, Chapra Registry Office was
competent to file a complaint for an
offence committed in a proceeding before
the court of learned Sub Divisional
Judicial Magistrate at Gopalganj. It was
further submitted that petitioners cannot
be held guilty for an offence of producing
a certified copy of the sale deed in the
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court due to the reason that the said
document shall be presumed as genuine in
view of Section 79 of the Evidence Act. On
the aforesaid fact, it was submitted that
continuance of proceeding in the present
case is an abuse of the process of the
court and as such it is a fit case for
exercising inherent jurisdiction in favour
of the petitioners.
5. Shri Ashok Kumar Jha, learned
counsel appearing on behalf of opposite
party no.2, has strongly opposed the prayer
of the petitioners. It was submitted by
Shri Jha that a forged certified copy of
sale deed was produced by the aforesaid
accused persons in a proceeding i.e. in a
complaint case, which was filed by the
opposite party no.2 against the
petitioners. The said forged certified copy
was produced before the Sub Divisional
Judicial Magistrate in a criminal
proceeding and immediately after noticing
that said document was prima facie doubtful
and forged, a prayer was made by the
opposite party no.2 for seizure of said
document, which was allowed by the learned
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Sub Divisional Judicial Magistrate and
thereafter, matter was got enquired and the
fact surfaced that even in Register Vol.3
at Pages 278 to 279 of the registry office,
Chapra, interpolation was made and as such
the complainant filed the present complaint
before the court of Chief Judicial
Magistrate and the learned Chief Judicial
Magistrate transferred the case to the same
court where the accused persons had
produced forged document. After conducting
thorough enquiry, the learned Magistrate
took cognizance of the offence and when the
case reached to the stage of charge, with a
sole object to delay commencement of trial,
petition was filed for discharge. The
learned Magistrate, by the impugned order,
has rightly rejected the discharge petition
and fixed the case for charge. In this
case, order of cognizance was passed on
31.3.2001. Accordingly, the learned counsel
for opposite party no.2 has prayed to
reject the present petition.
6. Besides hearing learned counsel
for the parties, I have perused the
materials available on record. The plea of
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territorial jurisdiction, which was raised
by Mr. Khan, learned counsel for the
petitioners is not sustainable and is fit
to be rejected in view of the fact that the
petitioners, in the present case, had
produced a forged certified copy of sale
deed in the court of Sub Divisional
Judicial Magistrate to strengthen their
defence in a criminal case initiated on the
complaint filed by the opposite party no.2.
Immediately after noticing the fact that a
forged document was filed, the complainant
got the matter enquired and he came to know
that even in the record of the registry
office interpolation was made by some of
the accused persons and thereafter, the
forged certified copy was produced. The
court is of the opinion that in such
situation, the learned Sub Divisional
Judicial Magistrate, before whom such
forged document was filed, has rightly
proceeded with the case. The initiation of
proceeding, in the facts and circumstances
of the present case, cannot be interfered
on the ground that complaint was not filed
by the Registry office of the Chapra
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Registry where interpolation was made. In
the present case, case would have been
initiated either at the Chapra court or the
court where proceeding is pending i.e.
Gopalganj. So far as argument of Mr. Khan
regarding presumption of a certified copy
of a document as genuine is concerned, in
the present case, there is allegation by
the complainant that accused persons had
paid heavy amount to some employees of the
registry office of Chapra for bringing out
the register from the registry office and
outside the office interpolation was got
done at pages 278 to 279 in Vol.3. At the
moment, this Court is not recording any
finding regarding the merit of the case,
but prima facie the court is of the opinion
that circumstances are enough to establish
that the court of learned Sub Divisional
Judicial Magistrate, Gopalganj is having
jurisdiction to proceed with the present
complaint i.e. Complaint Case No.477 of
2000.
7. In view of the facts and
circumstances, the court is of the opinion
that the present case is not a case, which
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can be categorized as an exceptional or
rarest of rare case warranting exercise of
inherent jurisdiction in favour of the
petitioners. Time without number, it has
been held that at the stage of charge, only
a prima facie case is to be seen. At this
stage, it is also not permissible to
conduct a roving enquiry.
8. In view of the facts and
circumstances, I do not find any ground for
interference with the order dated 27.7.2001
passed by learned Sub Divisional Judicial
Magistrate, Gopalganj in Complaint case
No.477 of 2000, Tr. No.1096 of 2001 and as
such the petition stands rejected.
9. In view of rejection of this
petition, interim order of stay stands
automatically vacated.
10. Let a copy of this order be
sent to the court below forthwith.
( Rakesh Kumar,J.)
PATNA HIGH COURT
Dated 7th September,2010
N.A.F.R./N.H.