Awadh Kishore Prasad v. The State Of Bihar

Order

Mr. Rabi Bhushan Prasad, Advocate. : Mr. Jharkhandi Upadhyay, A.P.P. : None.

5. 03-10-2013 Heard learned counsel for the petitioners and learned A.P.P. for the State. Despite valid service of notice on opposite party no. 2, nobody appears on his behalf. Even on

24.09.2013, nobody had appeared on behalf of the opposite party no. 2 and by way of indulgence, the case was adjourned and then on 01.10.2013 also nobody had appeared and the same position exists even today. The present application seeks quashing of the order dated 20.02.2013 passed in Complaint Case No. 1507 (C) of 2012 by the Judicial Magistrate 1st Class-cum- Additional Munsif- XII, Nalanda at Biharsharif, by which cognizance has been taken against the petitioners under Sections 341/323/504/34 of the Indian Penal Code.

Patna High Court Cr.Misc. No.25090 of 2013 (5) dt.03-10-2013 The allegation against the petitioners is that they had forcibly harvested and taken away the crops standing on the land of the complainant and that the petitioner no. 2 had also fired upon the complainant but he was not injured. Learned counsel for the petitioners submits that the falsity of the case is established from the fact that the land, which has been described in the complaint case, was already held to belong to the wife of the petitioner no. 1 in a title suit filed by the mother of the complainant (opposite party no. 2) in which the wife of the petitioner no. 1 was the defendant and after losing the suit, the title appeal was also preferred being Title Appeal No. 10 of 2003, which also, by order dated 10.05.2010 has been dismissed by the Additional District Judge, F.T.C. No. 1, Nalanda. Copy of the said judgment in the appeal has been annexed as Annexure-3 in the present proceeding. From paragraph 3 of the said judgment, it is apparent that the land in question is the same in both the cases. Learned counsel submits, that having lost at every stage, the present complaint case has been filed on

04.12.2012 for oblique reasons and with mala fide intention. Learned counsel also submits that in the complaint, the allegation is that the petitioners were harvesting the crops on the land in question, which was objected by the complainant as the land belonged to him, due to which the incident occurred. In view of the fact that possession of the land has Patna High Court Cr.Misc. No.25090 of 2013 (5) dt.03-10-2013 been decided in favour of the petitioners in duly constituted Civil proceedings, and possession also having been handed over to the petitioners by the competent District Authorities on

12.04.2012, the very basis of the allegation stands falsified. Learned counsel has drawn the attention of this Court to Annexure-4, which is copy of the certificate showing handing over of possession of the land in question in favour of the wife of the petitioner no. 1. Learned counsel submits that once the land was handed over to the petitioners in April, 2012, they harvested the crops on the land in December, 2012, and this could not have led to the incident as they were not required to forcibly grow and harvest the crops on their own land. Learned counsel submits that the averments in the complaint itself would show that the petitioners were the rightful owner as well as possession was in their favour by the fact that the complainant himself has stated that upon complaint at the local police station, the officer-in-charge had visited the spot and after talking to the petitioners had gone away without doing anything. This corroborates the fact that the petitioners were not doing anything illegal and also that the claim of the complainant to the land in question was unjustified and untenable. Learned counsel further submits petitioners could not be the aggressors since they were only harvesting crops on their own land and if at all the same was objected, it would have been the complainant who would have Patna High Court Cr.Misc. No.25090 of 2013 (5) dt.03-10-2013 acted against the law to prevent the petitioners harvesting. Learned counsel submits that in view of the Civil litigation in which the decisions are in favour of the petitioners, the allegations made in the complaint case are not only improbable but also absurd and thus the criminal proceeding is an abuse of the process of the Court and requires to be quashed. For such proposition, learned counsel has relied upon the decision of this Court in the case of Chandra Shekhar Jha vs. State of Bihar reported in 2013 (2) PLJR

571. Learned counsel further submits that even the order taking cognizance is erroneous inasmuch as in a routine manner without application of judicial mind, the said order has been passed. Learned counsel submits that law requires the Court to take cognizance in accordance with law after due application of mind. He submits that the order summoning the accused must show that the Magistrate has applied his mind to the facts of the case and law applicable thereto. He should also carefully scrutinize the evidence brought on record and may himself put questions to the complainant and his witnesses to find out the truthfulness of the allegations. For such proposition learned counsel has relied upon the decision of the Hon’ble Supreme Court in the Case of Pepsi Foods Ltd. v. Special Judicial Magistrate reported in (1998) 5 SCC 749. Learned A.P.P. for the State very fairly Patna High Court Cr.Misc. No.25090 of 2013 (5) dt.03-10-2013 submits that in view of what has been brought on record and the matter having finally been decided in favour of the petitioners as far as title is concerned, followed by handing over of possession by the District authorities, the allegations made do not inspire confidence. This Court, in the absence of anybody appearing on behalf of the opposite party no. 2, despite giving indulgence on two occasions, can only presume that the petitioner no. 2 does not propose to oppose the present application. Considering the facts and circumstances of the case, this Court finds substance in the contentions and submissions of learned counsel for the petitioners. From the materials brought on record, this Court finds that ownership and title of the land in question having been held in favour of the petitioners by the Civil Court of competent jurisdiction and possession being handed over to them by the District Authorities, the allegations made in the complaint case clearly are improbable and unbelievable. It is obvious that the same has been instituted for wreaking vengeance and settling of personal grudge after having lost the battle in the Civil Courts with regard to the land in question. Further, learned counsel for the petitioners has rightly relied upon the decisions referred by him, which support his contentions. Accordingly, the entire criminal proceeding Patna High Court Cr.Misc. No.25090 of 2013 (5) dt.03-10-2013 arising out of Complaint Case No. 1507 (C) of 2012, along with the order taking cognizance dated 20.02.2013 is quashed. The application stands allowed. (Ahsanuddin Amanullah, J.) Anand Kr.