Patna High Court
Yogendra Mishra vs State Of Bihar & Anr on 20 October, 2014
Author: Ashutosh Kumar
Bench: Ashutosh Kumar
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Miscellaneous No.25699 of 2012
Arising out of P.S. Case No. 41 Year-2010 Thana Chapra Mufassil, District Saran
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Yogendra Mishra, Son of Late Suraj Shekhar Mishra, Resident of Village Sarha,
P.S. Chapra Mufassil, District Saran (Chapra).
.... .... Petitioner
Versus
1. The State of Bihar.
2. Satyendra Kumar Singh, Son of Late Uttim Singh, Resident of Village Sarha
Newaji Tola, P.S. Chapra Mufassil, District Saran (Chapra).
.... .... Opposite Parties
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Appearance :
For the Petitioner : Mr. Bashishtha Narayan Mishra, Advocate
Mr. S.N. Rai, Advocate
Mr. B.K. Mishra, Advocate
For O.P. No. 2 : Mr. Siddharth Harsh, Advocate
For the State : Mr. Jharkhandi Upadhyay, APP
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CORAM: HONOURABLE MR. JUSTICE ASHUTOSH KUMAR
ORAL JUDGMENT
Date: 20-10-2014
Heard learned counsel for the petitioner, Opposite Party
No. 2 and the State.
2. The petitioner seeks quashing of the order dated
26.06.2010, passed by the learned Chief Judicial Magistrate, Saran at Chapra in Chapra Mufassil P.S. Case No. 41 of 2010 whereby cognizance has been taken under Sections 447, 427, 466, 468, 471 and 420/34 of the Indian Penal Code.
3. The Opposite Party No. 2 alleges that with respect to a plot of land, he entered into an agreement to sell with one Chandrashekhar Prasad and also gave him an amount of Rs. 10,000/. In order to identify the boundary of the said land, which was intended to be purchased, pillars were fixed at the instance of the Opposite Party No. 2. 2 Patna High Court Cr.Misc. No.25699 of 2012 dt.20-10-2014 2/4 The petitioner along with others is alleged to have uprooted such pillars on the pretext that the land, which the informant intended to purchase, was actually his land. The informant-Opposite Party No. 2 demanded the proof of such a contention of the petitioner. A sale deed executed in 1949 is said to have been shown to the informant as proof of the fact that the petitioner and others had been coming in exclusive possession over the property as it was purchased from one Sita Kuer by the father of the petitioner. On further inquiry by the informant from the Registry Office, he learnt that no such sale deed was executed in the year 1949 with Sita Kuer having been shown as a vendor of the said plot of land. The informant, therefore, alleged that a forged and fabricated document has been used by the petitioner for staking a false claim over the plot of land which he intended to purchase.
4. Learned counsel for the petitioner submits that a civil dispute has unnecessarily been given a colour of criminal case. He further submits that the informant has only entered into an agreement with Chandrashekhar Prasad. Chandrashekhar Prasad is contesting the title suit preferred on behalf of the petitioner regarding declaration of title and delivery of possession. The title suit, which was filed on behalf of the petitioner, was dismissed by the court of the learned Munsif on the ground of the same having been hit by res judicata. This was because earlier a redemption suit was filed by the mortgager of the property. In the aforesaid proceedings, the father of the petitioner made a disclosure that there was an oral transfer of the said property in his 3 Patna High Court Cr.Misc. No.25699 of 2012 dt.20-10-2014 3/4 favour. The mortgage suit was allowed. The parties litigated over such findings of the court below till the Apex Court and finally lost the matter.
5. Learned counsel appearing on behalf of Opposite Party No. 2 states that the disclosure made by the father of the petitioner in the mortgage suit estoppes the petitioner from making any fresh claim over the said property by bringing into picture a sale deed. It has been argued by learned counsel for the Opposite Party No. 2 that once the father of the petitioner has disclosed that the land came to him only by way of oral transfer, any claim by the petitioner of a sale deed of 1949 is obviously a claim based on a document which cannot be said to be genuine. Since the title suit preferred by the petitioner was not entertained by the court below, a First Appeal was filed by him before the court of the learned District Judge. The order of the learned Munsif was set aside and the matter was remitted to the trial court to act upon the suit preferred by the petitioner. Against such order in First Appeal, the aforesaid Chandrashekhar Prasad preferred a Second Appeal before the Patna High Court which was held to be not maintainable. Thereafter, a Miscellaneous Appeal was filed which is still pending for final adjudication before this Court.
6. Learned counsel for the petitioner submits that in the civil litigation, Chandrashekhar Prasad is contesting the suit and by a very clever strategy has set up the Opposite Party No. 2 to prefer a criminal case against the petitioner. It has also been argued that if, at all, 4 Patna High Court Cr.Misc. No.25699 of 2012 dt.20-10-2014 4/4 anybody was aggrieved by the petitioner trying to put up his claim over such land by way of bringing a sale deed which, according to the informant, is a forged and fabricated document, it is only Chandrashekhar Prasad who finds the claim over the said plot of land staggering.
7. In any view of the matter, considering the fact that a title suit with respect to the same plot of land is pending final adjudication by the competent court, any attempt by an outsider, as he has only claimed to have paid Rs. 10,000/- to Chandrashekhar Prasad as an advance money for agreement to sell, to bring the petitioner in the net of criminal charge cannot be countenanced.
8. The order taking cognizance dated 26.06.2010, passed by the learned Chief Judicial Magistrate, Saran at Chapra in Trial No. 1892 of 2012, arising out of Chapra Mufassil P.S. Case No. 41 of 2010, thus, is held to be unsustainable and is hereby quashed as against the petitioner.
9. The application is allowed.
(Ashutosh Kumar, J.) Sanjay/-
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