KAPILDEO SINGH v. THE STATE OF BIHAR & ORS

in Criminal Revision No.407 of 2005 by Sri Narendra Bahadur Singh, the learned Presiding Judge, Fast Track Court No.I, Gopalganj, whereby he has set aside the order dated 28.11.2004 passed by the learned Sub Divisional Judicial Magistrate, Gopalganj, whereunder he had taken cognizance under Section 420 I.P.C. against O.P. No.2 herein in the said complaint case. The petitioner’s case as would appear from the complaint petition and the instant application, inter alia, is that from the khewat of village-Bairiya Thakurai, it is clear that the landlord of the said village were Kali Prasad Rai and others and that the Hathua Raj had - 2 - no concern with the said village. It is said that Indrajeet Prasad, the son of Khewat Malik on 13.5.1952 gave by patta hukumnana 7 kathas, 1 katha 12 dhoors and one katha of land appertaining to khata no.5, khesra nos.86, 138 and 134 respectively to his father Ram Bhikhari Singh and also gave possession over the said lands and the complainant is in continuous and peaceful possession over the same.

The said lands were mutated in the name of the father of the complainant by the State of Bihar and he is paying rent over the same. It is alleged that the complainant came to know that by playing fraud accused no.1, Md. Mainuddin, had obtained a parcha from the Bhoodan Yagya Committee in respect of 16 decimals of land appertaining to plot no.106 and on the basis of the said certificate and taking the Circle Officer in his confidence got produced a fabricated inquiry report and got created a jamabandi in his favour. It is said that the illegal overt acts had caused severe harassment to the complainant and apprehensions were afoot of there being breach of the peace. It is said, in this connection, that the Bhoodan Yagya Committee was fully aware of the fact that the aforesaid lands did not belong to the Hathua Raj and they had no right to give any parcha for the said lands and as forgery had been committed to the detriment of the complainant he sought legal action against O.P. No.2 herein and the Secretary of the Bhoodan Yagya Committee for commission of offences under Sections 420 and 419/34 I.P.C by filing the instant complaint.

The said complaint was sent to the concerned police station under Section 156(3) Cr.P.C. and the police after due investigation - 3 - submitted a final form. However, a protest petition appears to have been filed by the complainant during the pendency of the investigation and after final form had been submitted the learned Magistrate proceeded with the protest petition as a complaint case and after examining the complainant on oath and recording the evidence of his witnesses took cognizance for the offence under Section 420 I.P.C. vide order dated 28.11.2004 only against O.P. No.2 herein. Aggrieved by the aforesaid order of the learned Magistrate, O.P. No.2 preferred Criminal Revision No.407 of 2005 which was heard by the then learned Presiding Judge, Fast Track Court No.I, Gopalganj, who by his order dated 28.7.2006 allowed the revision application and set aside the order taking cognizance against O.P. No.2.

The submission on behalf of the petitioner is that it would be apparent from a perusal of the complaint petition and the subsequent protest petition as also the evidence of his witnesses examined in course of the inquiry that it was by playing a fraud and by means of a forged parcha that O.P. No.2 has been able to get created the jamabandi over the land in dispute in his favour. It would also be evident that O.P. No.2 by the fraudulent overt act had cheated the petition and hence he was liable to be prosecuted under Section 420 I.P.C. and the revisional court without applying its mind had mechanically set aside the order of the learned Magistrate. Grievance of the petitioner was that the learned revisional court while passing the impugned order was remiss of the fact that in - 4 - course of the inquiry the learned Magistrate had been pleased to call for a report from the Bhoodan Yagya Committee and the said report

13.11.2002 categorically informed certificate/parcha purported to have been issued by the Bhoodan Yagya Committee was a forged one. In these circumstances, it was submitted that the learned revisional court had erred in law in setting aside the order of the learned Magistrate taking cognizance. A rejoinder has been filed by O.P. No.2 wherein the order of the revisional court was sought to be justified. It was submitted that from a perusal of the order of the revisional court it would appear that it had considered all the aspects of the case and had come to the conclusion that the ingredients for constituting an offence under Section 420 I.P.C. were not available. That apart, it was submitted, that the entire case was of a civil nature which was required to be adjudicated by a competent court exercising civil jurisdiction and invoking the criminal jurisdiction in such matters was an absolute abuse of the process of the court.

It is true that in the complaint petition an allegation has been levelled against O.P. No.2 of his having played fraud by getting created fabricated document and using the same to get a jamabandi created in his favour in respect of the lands which admittedly were in possession of the complainant but no date or time or the manner whereby the said fraud was committed has been disclosed. It is also available in the impugned order of the revisional court that no allegation had been made against any person in the protest petition nor - 5 - had any prayer been made for initiating a proceeding against any one which only goes to show that the said protest petition was no protest petition at all and the learned Magistrate had erred in taking cognizance. The protest petition unfortunately has not been brought on record. That apart where the genuineness of the document is in question it is only a competent court of civil jurisdiction which after cogent proof can declare a document to be forged or otherwise and it is beyond the ambit of criminal court to give a finding on the genuineness of a document.

There is yet another aspect of the matter. For an offence under Section 420 I.P.C. certain ingredients are required to be fulfilled before an offence under Section 420 I.P.C. can be said to have been committed. There must be deception i.e. accused must have deceived some one; that by the said deception the accused must have induced a person to deliver any property, or to make, alter or destroy whole or part of the valuable security or anything which is signed or sealed and which can be capable of being converted into a valuable property and thirdly that the accused did so dishonestly. So far as the instant case is concerned, none of the ingredients appear to have been made out from the complaint petition and the evidence of the witnesses. Apropos it may be stated that if by fraud a certain jamabandi has been created out of the lands of the rightful title holder then it is open for him to approach the Block Development Officer to - 6 - hold a revision and rectify the position created in favour of the accused but it is definitely not a case which calls for criminal liability.

When there is a finding regarding declaration of title and possession over the lands, it is for the Civil Court to decide the matter and only after the Civil Court had decided that the said lands were in the possession of the complainant who also had title over it then it would be for the court in seisin of the case to take appropriate action. As such the impugned order taking cognizance for the cogent reasons assigned has rightly been set aside by the revisional court and I uphold the same. In the result, I find no merit in this application which is accordingly dismissed. (Abhijit Sinha,J) Patna High Court, Patna. Dated: The 20th of May, 2009. Pradeep Srivastava/A.F.R.