Jharkhand High Court
Ram Naresh Mahto vs The State Of Jharkhand on 12 April, 2022
Author: Sanjay Kumar Dwivedi
Bench: Sanjay Kumar Dwivedi
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr.M.P. No. 2794 of 2017
1. Ram Naresh Mahto
@ Naresh Mahto
2. Suraj Nath Prasad Swarnkar ..... ... Petitioner
Versus
1. The State of Jharkhand.
2. Binod Kumar Swarnkar ..... ... Opposite Parties
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CORAM : HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI
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For the Petitioners : Mr. Abhay Kumar Chaturvedi, Advocate.
For the State : A.P.P.
For the O.P. No. 2 : Mr. A.K. Kashyap, Sr. Advocate.
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10/ 12.04.2022 Heard Mr. Abhay Kumar Chaturvedi, learned counsel
appearing for the petitioners, learned A.P.P. for the State and Mr. A.K. Kashyap, learned senior counsel appearing for the O.P. No. 2.
2. This criminal miscellaneous petition has been directed against the order dated 23.05.2017, passed by the learned Sessions Judge, Ramgarh, in Cr. Rev. No. 59 of 201, whereby the order dated 24.09.2016 passed by the learned Chief Judicial Magistrate, Ramgarh, in protest-cum- complaint case No. 182 of 2014 has been set aside and by the subsequent order dated 16.07.2017, the order dated 23.05.2017 has been corrected by the learned Sessions Judge, Ramgarh.
3. The O.P. No. 2 has filed protest-cum-complaint petition, which was registered as Complaint Case No. 182 of 2014 stating therein that under khata no. 146 there are six plots, total measuring area 3.78 acres and the lands were recorded in the name of Bandhan Sonar in survey records of rights. Bandhan Sonar died, leaving behind his two sons Bhikhan Sonar and Lochan Sonar. After the death of Bandhan Sonar, his both the sons amicably partitioned the land of khata no. 146 along with the other lands and each of them got half share of land of khata no. 146.
The complainant has further stated that the plot no. 1919, area 1.12 acres of land, plot no. 1920 area 0.27 acres and plot no. 1021 area 0.35 acres total area of three plots is 1.74 acres in which Bhikhan Sonar got 0.87 acres.
The complainant has further stated that Bikhan Sonar died leaving behind four sons namely, Jodhan Sonar, Sugan Sonar, Harinath Sonar and Banshi Sonar. Lochan Sonar in his life time executed three deeds of sale for an area of 0.87 acres. Jodhan Sonar, Sugan Sonar, Harinath Sonar and Banshi Sonar after obtaining full -2- and final consideration amount i.e. on 10.1.1958, 10.1.1959 and 25.6.1959 and delivered possession to the vendee who thereafter came in and continued physical cultivating possession of their purchased land and accordingly total area of three plots as mentioned above came in possession of four sons of Bhikhan Sonar.
The complainant has further stated that after some time four sons of Bhikhan Sonar amicably partitioned the land of plot Nos. 1919, 1920, 1921 and each of them got 43.1/2 decimals of lands and started cultivating possession thereof without any let or hindrance from any corner which is known to whole world including the villagers.
The complainant has further stated that Jodhan Sonar, father of accused no. 2 sold 21.1/2 decimals out of 43. ½ decimals to Sugan Sonar and Harinath Sonar on 6.6.1964 like wise again Sugan Sonar had also got the share of 43.1/2 decimals. In three plot Nos. 1919, 1920, 1921 of Khata No. 146 to Smt. Prelata Devi wife of Bhanu Keshwar Sonar on 28.10.1994, who is witness in the present complaint petition later on after purchase name of vendee entered in revenue register and obtained Government rent receipt upto date.
The complainant has further stated that there was exchange of land between Jodhan Sonar, who gave 0.21, .1/4 decimals rest land of plot Nos. 1919, 1920, 1921 to Harinath Sonar and Sugan Sonar and lieu of Harinath Sonar gave 0.22 acres of lands in plot no. 441 of khata No. 32 and put him in possession.
The complainant has further stated that accused no. 2 Suraj Nath Swarnkar having no right, title and possession over the land of khata no. 146, plot Nos. 1919, 1920 and 1921 and his claim over the land is mala fide and forceful when Jodhan Sonar in his life time has already dispose of the land.
The complainant has further stated that the complainant received a legal notice then the matter came in light to him that accused no. 2 along with Banshi Sonar executed an agreement in favour of accused no. 1 appertaining to khata no. 146, plot Nos. 1919, 1920, 1921, area 0.76 acres out of 1.74 acres.
The complainant has also stated that thereafter the complainant enquired about the matter from his father who disclosed -3- that he has no idea of agreement dated 23.11.2012. The complainant has alleged that the accused persons in connivance of each other has prepared a fake and forged agreement.
The complainant has also stated that on 18.05.2013 in the morning at about 9 a.m. ploughed the land of the complainant through JCB machine. Knowing about it the complainant along with Bhanu Keshar Sonar went to the place of occurrence requested the accused persons not to plough the land as they have no right, title and interest over the land. The accused persons became violent started using unparliamentary language and further the accused no. 2 caught hold the neck of the complainant starting pressing with intention to kill him. Bhanu Sonar came forward in rescue and he was also assaulted with fists and slaps. Thereafter he was also threatened by the accused persons.
The complainant has also stated that earlier he filed a complaint case and same was sent to Ramgarh police station and accordingly Ramgarh P.S. Case No. 190 of 2013 was initiated and the matter was enquired by the police and lastly the final form was submitted on 30.12.2013 in favour of the accused persons.
4. Mr. Abhay Kumar Chaturvedi, learned counsel appearing for the petitioners submits that earlier the complaint petition was filed, which was referred under Section 156(3) Cr.P.C. before the police for investigation. He submits that the police, after investigation, has submitted the chargesheet, wherein the petitioners have not been sent up for trial. He further submits that pursuant thereto the O.P. No. 2 was called by way of issuing notice by the Court below and on the protest petition, the learned Court of Chief Judicial Magistrate, Ramgarh, by a reasoned order came to the conclusion that no case against the petitioners was made out and dismissed the complaint petition, under Section 203 Cr.P.C. He submits that the said order of the learned Chief Judicial Magistrate, Ramgarh was challenged in Cr. Rev. No. 59 of 2016 before the learned Sessions Judge, Ramgarh. Learned counsel appearing for the petitioners submits that the police has already investigated the matter and found the case civil in nature. The enquiry witness has also stated that for the land in question, one title suit is already pending before the concerned Court and also proceeding has been initiated under Section 145 Cr.P.C. He Submits that -4- although the revisional Court has come to the conclusion that prima facie case is not made out against the petitioners under Sections 323, 506 and 427 of the IPC, vide order dated 23.05.2017 and the case is made out under Sections 323 and 506 of the IPC only. The order dated 23.05.2017 was subsequently rectified, vide order dated 06.07.2017 by the revisional court to the extent that the Court found that the Court below has wrongly found that a prima facie case is not made out against the accused under Sections 323, 506 and 427 IPC, as injury report is not filed by the complainant, but the Court finds that in each and every cases of Section 323 IPC, there is no need of injury report and, accordingly, the order dated 24.09.2016 passed by the learned Chief Judicial Magistrate, Ramgarh is set aside and the matter is remanded back to the concerned Court for consideration and for passing the order in accordance with law. Further arguments of learned counsel appearing for the petitioners is that the case is civil in nature, as such there is no occasion to take cognizance under Sections 323 and 506 IPC. He further submits that injustice has been done to the petitioners, as such this petition is fit to be allowed.
5. Mr. A.K. Kashyap, learned senior counsel appearing for the O.P. No. 2 submits that there is no illegality in the impugned orders and the revisional court after looking into the merits of the case has remanded the matter back to the concerned Court for consideration and passing the order in accordance with law. He submits that in absence of any injury report, the cognizance for the offence under Section 323 IPC has to be taken, as injury report is not necessary for the ingredients of that Section.
6. In view of above submissions of learned counsel for the parties, the Court has gone through the materials available on record. It is an admitted fact that the complaint of the O.P. No. 2 has been referred under Section 156(3) Cr.P.C. to the police for investigation and the police after investigating the matter, has submitted the chargesheet, stating therein that the case is civil in nature and the learned Court of Chief Judicial Magistrate, Ramgarh has called the O.P. No. 2 by way of issuing notice and after considering the complaint petition and the other evidences, rejected the complaint petition under Section 203 Cr.P.C. The revisional court has come to the conclusion that the case under Sections 323 and 506 IPC is made out against the petitioners.
7. Section 323 IPC relates to punishment for voluntarily causing -5- hurt, but the case in hand merely the allegation is made out, but the police after investigation has submitted the chargesheet, wherein the petitioners have not been sent up for trial and the learned Chief Judicial Magistrate has also come to the conclusion that the case is civil in nature and dismissed the complaint petition under Section 203 Cr.P.C.. It is an admitted fact that for the land in question, one title suit is pending between the parties and this fact has not been disputed by any of the parties.
8. It is well settled that for the civil nature of case, criminal case is not required to be filed merely by way of adducing any evidence of any witness. Reference may be made to the case of "Pepsi Food Limited and Another- versus- Special Judicial Magistrate & Others, reported in (1998) (5) SCC 749. The Hon'ble Supreme Court in para-28 thereof, has held as follows:-
"28. Summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. It is not that the complainant has to bring only two witnesses to support his allegations in the complaint to have the criminal law set into motion. The order of the magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. He has to examine the nature of allegations made in the complaint and the evidence both oral and documentary in support thereof and would that be sufficient for the complainant to succeed in bringing charge home to the accused. It is not that the magistrate is a silent spectator at the time of recording of preliminary evidence before summoning of the accused. The Magistrate has to carefully scrutinize the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations or otherwise and then examine if any offence is prima facie committed by all or any of the accused."
9. In view of the above, the Court has come to the conclusion that no case is made out under Sections 323 and 506 of the Indian Penal Code. Accordingly, the impugned orders dated 23.05.2017, passed by the learned Sessions Judge, Ramgarh, in Cr. Rev. No. 59 of 2016, whereby the order dated 24.09.2016 passed by the learned Chief Judicial Magistrate, Ramgarh, in protest-cum-complaint case No. 182 of 2014 has been set aside and by the subsequent order dated 16.07.2017, the order dated -6- 23.05.2021 has been corrected by the learned Sessions Judge, Ramgarh, is hereby, set aside.
10. Accordingly, this criminal miscellaneous petition is allowed and disposed of.
11. So far as the civil case is concerned, the Court has not opined on that merit, which will be decided by the concerned court.
(Sanjay Kumar Dwivedi, J.) Amitesh/-