Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Miscellaneous No.21690 of 2011 ====================================================== 1. Urmila Devi, W/o Sri Sheo Prasad Sah 2. Pramila Devi, W/o Sri Gorakh Sah 3. Amod @ Amol Kumar, S/o Sri Gorakh Sah 4. Sujeet @ Sujeet Kumar, S/o Gorakh Sah 5. Gorakh Sah, S/o Late Isari Sah All residents of Mohalla-Dahiyawan Tola, P.S. Chapra Town, District-Saran Versus .... .... Petitioner/s 1. The State of Bihar 2. Lalmati Devi, W/o late Bharat Ram Patel, resident of Mohalla- Salempur, P.S. Chapra Town, District-Saran .... .... Opposite Party/s ====================================================== CORAM: HONOURABLE MR. JUSTICE JYOTI SARAN ORAL ORDER 05. 28-02-2013 Heard Mr. Mahesh Narayan Parbat, learned counsel appearing for the petitioners and Mr. Murli Dhar, learned Additional Public Prosecutor for the State. This application under Section 482 of the Code of Criminal Procedure has been filed questioning the order dated 15.05.2011 / 16.05.2011 passed by learned Chief Judicial Magistrate, Saran at Chapra in a case arising from Chapra Town P.S. Case No. 183 of 2010, whereby the learned court below has been pleased to take cognizance of the offences punishable under Sections 147, 148, 149, 323, 420, 448, 328, 504 / 120B of the Indian Penal Code. By order dated 26.11.2012 notices were issued to the informant-opposite party no. 2 and by order passed on 07.02.2013, the service of notice on opposite party no. 2 was accepted as valid. Though served, there is no representation on her behalf.
Facts
Patna High Court Cr.Misc. No.21690 of 2011 (5) dt.28-02-2013 2 By the FIR in question the informant-opposite party no. 2 has charged the petitioner no. 5 Gorakh Sah in a specific manner and the other petitioners in a general manner of assaulting her. It is alleged that when the informant confronted the said Gorakh Sah regarding a sale deed said to have been executed by her, the accused have assaulted her and her daughter. Learned counsel for the petitioners while contesting the allegation has submitted that the fact is otherwise and the informant herself has transferred immovable property vide registered sale deed dated 7.2.2009 executed in favour of the petitioner no. 1 Urmila Devi and petitioner no. 2 Pramila Devi and by another sale deed dated 5.2.2009 executed in favour of Shiv Prasad Sah, the husband of the petitioner no. 1 and petitioner no. 5 Gorakh Sah for a consideration amount of Rs. 2, 05,000/- and Rs. 16,50,000/- respectively. It is stated that the consideration amount was paid to her in cash as well as through cheque deposited in her savings bank account no. 0097000105398 maintained with Punjab National Bank. The petitioners claim to be in possession of the sale deed as also the rent receipt. It is stated that subsequently a Title Suit was filed by one of the daughter of the informant giving rise to Title Suit No. 582 of 2008 seeking a declaration of title over the house and for Patna High Court Cr.Misc. No.21690 of 2011 (5) dt.28-02-2013 3 restraining the informant who was impleaded as defendant no. 1 by way of a permanent injunction from making alienation of the house. An application for intervention was filed by the vendees to the sale deeds in the suit and which was allowed. It is stated that the prayer for injunction made by the plaintiff was dismissed by the court below on 21.10.2009 on the opposition by the intervenors. An appeal being preferred against the rejection of injunction, was also dismissed by the learned 2nd Additional District and Sessions Judge, Saran at Chapra on 6.8.2010. It is stated that all this while, the informant who was arraigned as a defendant did not make any complaint against the vendees and finally the suit itself was permitted to be withdrawn by the learned court below by order passed on 10.01.2011. The orders passed in the Title Suit have been placed at Annexure-3 of the present proceedings. It is further stated that the informant along with her daughter have filed a fresh suit now seeking cancellation of the two sale deeds executed by the informant in favour of petitioner nos. 1 and 2 jointly and petitioner no. 5 and Sheo Prasad Sah jointly. It is thus submitted that in the circumstances where the dispute is purely of civil nature, the initiation of the criminal proceedings is merely to cause further harassment to the petitioners and to apply pressure. It is further submitted that the Patna High Court Cr.Misc. No.21690 of 2011 (5) dt.28-02-2013 4 very filing of the Title Suit by the daughter of the informant which was permitted to be withdrawn and the subsequent filing of a fresh suit by the informant along with the daughter is sufficient indication of the falsity of the present prosecution. I have heard learned counsel for the petitioners and the State. As observed there is no representation on behalf of the informant. The First Information Report is placed at Annexure-1 of the present proceedings and while charging the petitioner nos. 1 to 4 of assaulting the informant and her daughter in a general manner, specifically charges the petitioner no. 5 of having attacked the informant by a knife. Whether or not the allegation made by the informant against the petitioner no. 5 of duping her into execution of the sale deeds by applying influence is correct, is a matter which is pending consideration before the Civil Court and thus this Court would refrain from expressing any opinion thereon. Learned counsel has referred to the evidence of the eye witnesses as can be found in paragraph 25 to 32 of the case diary and with reference thereof it is submitted that even when the witnesses have admitted to an altercation taking place between the informant and the petitioner no. 5, but the name of other petitioners has not been mentioned by any of the witnesses as being a participant to the occurrence. It is stated that the other petitioners have been Patna High Court Cr.Misc. No.21690 of 2011 (5) dt.28-02-2013 5 roped in the present case merely because they happen to be family members / vendees to the sale deed. The case diary is on record and reflects the position as stated by learned counsel regarding absence of material as against the other petitioners of participating in the occurrence. Having heard learned counsel and having perused the materials on record, it is manifest that the genesis of the criminal prosecution is the sale deeds stated to have been executed by the informant. It is manifest from the nature of allegation as set out in the FIR, the materials gathered during the course of investigation and the statement of the witnesses recorded during the course of investigation that although there is a specific allegation made against petitioner no. 5 Gorakh Sah, the involvement of petitioner nos. 1 to 4 has been made in a generalised manner without specific allegations and no supportive materials. Whereas the petitioner nos. 1 and 2 are wife of the vendees in the other sale deeds, the petitioner nos. 3 and 4 are the son of petitioner no. 5 Gorakh Sah.
Legal Reasoning
This Court in the circumstances discussed, is of the opinion that the continuation of the prosecution as against the petitioner nos. 1 to 4 would be an abuse of the process of the Court. In view of the conclusion drawn the order taking cognizance dated Patna High Court Cr.Misc. No.21690 of 2011 (5) dt.28-02-2013 6 15.05.2011 / 16.05.2011 in Chapra Town P.S. Case No. 183 of 2010 passed by learned Chief Judicial Magistrate, Saran at Chapra insofar as petitioner nos. 1 to 4 are concerned, is quashed and set aside. Considering the nature of allegation as against the petitioner no. 5, this application insofar as petitioner no. 5 Gorakh Sah is concerned, stands dismissed. This application stands allowed in part. S.Sb/- (Jyoti Saran, J)