GYANDEO SHARMA v. THE STATE OF BIHAR

: Mr. Ajay Kr. Thakur, Advocate : Mr. Arun Kumar, Advocate : Mr. Rajiv Kumar Singh, AC to G.A VI . . . . . . Respondents. 13/

04.08.2010 Heard learned counsel for the petitioner, State and ----------- Respondent no.11, who was impleaded in place of his late father Satya Narayan Mishra, informant of the present case (Annexure-1). Counsel for the petitioner has prayed for quashing of the criminal prosecution in Gandhi Maidan P.S. case no. 213 of 1999 including order dated 19.01.2004 taking cognizance of offence under Sections 467, 468, 471, 419, 420 and 120 B of the Indian Penal Code. He submits that the informant has not stated the correct facts in the F.I.R. and the police investigation has also been lop sided. One Satya Narayan Mishra, father of respondent no.11 filed - 2 - a complaint before Chief Judicial Magistrate, Patna giving rise to Gandhi Maidan P.S. case no. 213 of 1999 under Sections 467, 468, 471, 419, 420 and 120 B of the Indian Penal Code. The prosecution case in short is as follows: The complainant owns a piece of land measuring 5 Kathas carved out as survey plot no. 778, 900 and 901, khata no. 16 and 50, Tauzi no. 5453/18222, Thana no. 3, in Boring Road, Patna. He states that he is in possession of the aforesaid land since more than five decades and is living thereon, by raising various pucca structures. He alleges that the petitioner is a land grabber and fraudulently acting as Secretary, Alaknanda Co-operative Housing „Society‟ Ltd (hereinafter referred to as „Society‟) purchased the aforesaid 5 kathas of his land along with more 13 kathas of land totaling 18 kathas, from one Asma Ahmad through registered sale deed, dated 31.08.1987, in favour of „Society‟. He alleges that petitioner was not secretary of the „society‟ on the relevant date. He further alleges that petitioner got the aforesaid land of the informant transferred in the name of his own brother and co-accused Budhdeo Sharma vide registered sale deed, dated

17.12.1987. The informant alleged that the petitioner and other accused persons by practicising fraud want to usurp the aforesaid land with structure. The opposite party submits that the petitioner and others are also accused in Gandhi Maidan P.S. case no. 150 of 2003, in which too charge-sheet has been submitted and cognizance has also been - 3 - taken. He further submits that there is no illegality in order dated

19.01.2007 passed by Chief Judicial Magistrate, Patna, whereby the court had disposed of the application of further investigation filed by the petitioner as well. He further submits the Senior Superintendent of Police rightly has stated that there is no need for any further investigations vide memo no. 791/CR dated 19.02.2007 in the instant case. He submits that it would be open for the petitioner to produce his documents / evidence in course of trial. The case of the petitioner is that one Bibi Asmad Ahmad was the rightful owner of the plot and also had mutation in her favour. She executed a deed for contract on 01.10.1981 in favour of society under general power of attorney. But as she did not execute the contract, the society filed T.S. No. 122 of 1982 for Specific Performance of Contract against Bibi Asma Ahmad. The suit was decreed on 18.08.1986 and in compliance of the Court‟s order, the sale deed was registered on 21.04.1987. He submits that thereafter the society transferred the aforesaid plot of land in favour of his brother, Budhdeo Sharma. He submits that in fact, the informant is a land grabber and S.K.Puri P.S. Case Nos. 31 of 1990, 32 of 1990 and 33 of 1990 were instituted against the informant. However, the informant was acquitted in S.K.Puri, P.S. case no. 32 of 1990. He further submits that his brother Budhdeo Sharma has filed T.S. No. 538 of 1993, in which evidence has closed and on account of delaying tactics of the informant, the same has yet not been disposed of. - 4 - The petitioner submits that he has right on land and structure in question and the dispute is civil in nature. He further submits that the informant does not have any reason to lodge F.I.R. He submits that informant has no locus to file the present case, as he is not a member of the society. He further submits that the allegation leveled in the F.I.R. does not constitute any offence and as such criminal prosecution would not be maintainable. In support of his submissions, learned counsel has relied upon a decision in case of Mohammed. Ibrahim & Others Vs. State of Bihar & Another, reported in (2009)8 SCC 751 and Inder Mohan Goswami and Anr. Vs. State of Uttranchal and Ors, reported in A.I.R. 2008 SC 251. He submits that principle of res judicata has no application in a criminal proceeding. In support of his submissions reference has been made in case of Devendra & Others Vs. State of Uttar Pradesh & Another, reported in (2009) 7 SCC 495, paragraph 25. The informant on the other hand submits prosecution case discloses a non-cognizable offence against the accused persons including the petitioner. He further submits that the defence of the accused cannot be meticulously appreciated at this stage, for quashing the prosecution case or the order taking cognizance. He submits that in case of State of Bihar & another Vs. Shri P.P. Sharma and another, reported in AIR 1991 SC 1260, the Patna High Court had quashed the criminal prosecution in writ petition treating the documents filed by the latter, as evidence. The - 5 - Hon‟ble Apex Court, set aside the order of this court and observed that appreciation of evidence is the function of criminal courts. The High Court ought not to have assumed and put an end to the process of investigation of trial provided under the law. Learned counsel for the informant submits that the instant case discloses commission of criminal offence. Charge-sheet has been submitted on 31.12.2003 and thereafter cognizance has been taken on

19.01.2004. He submits that the Hon‟ble Apex Court in case of P. Swaroopa Rani Vs. M. Hari Narayan @ Hari Babu reported in 2008(3) PLJR SC 299, observed that Civil and Criminal proceeding can proceed simultaneously, if the offence disclosed in the F.I.R. constitute cognizable offence. He submits that co-accused namely Anupama Sharma, the daughter of the petitioner, had also filed a writ application, bearing Cr.W.J.C. No. 593 of 2007 for similar relief, as prayed for by the petitioner in the instant writ application, which was dismissed as withdrawn on 23.04.2008. On earlier date i.e. 20.02.2008, this Court had even directed the trial court to proceed with the trial. The order dated 20.02.2008 and 23.04.2008 are both quoted herein below.

20.02.2008: “As prayed for put up this case after one Month. In the meantime, the court below shall proceed with the trial in accordance with law. Let a copy of this order be communicated to the court below through fax at the cost of the High Court”.

23.04.2008: “Learned counsel for the petitioners seeks to - 6 - withdraw all the three applications. Accordingly, these applications are dismissed as withdrawn.” Heard counsel for the parties, this Court in course of hearing had called for the record of Cr.W.J.C. No. 593 of 2007, preferred by one Anupama Sharma, daughter of the petitioner. It appears from the perusal of the aforesaid application, the reliefs prayed in both the cases are similar in nature. In the aforesaid writ, petitioner, Anupama Sharma, had too prayed for quashing the F.I.R. and order dated 19.01.2004 taking cognizance besides other relief. In the aforesaid case, the petitioner Anupama Sharma, sought permission to withdraw this application and the same was dismissed as withdrawn vide order dated 23.04.2008. His Lordships Hon‟ble Mr. Justice Ghanshyam Prasad, J, (since retired) had directed the learned court below to proceed with the trial of the case. In this case charge-sheet has been submitted on 31.12.2003 and cognizance has also been taken about six years back. The Sr. Superintendent of Police, Patna has also opined that in the facts of the case, no further investigation is required. There cannot be any dispute to the propositions of law laid down by the Hon‟ble Apex Court in case of Devendra and Ors Vs. State of U.P., reported in 2009 (7) SCC 495 relied upon by the petitioner that where the dispute is admittedly of Civil nature, initiation of criminal proceeding would be bad under Sections 420, 467, 468 and 469 of the I.P.C. . This Court would not like to meticulously examine the defence version and the materials - 7 - upon which he has relied at this stage. The prosecution case prima facie discloses commission of criminal offence. In case of R. Kalyani Vs. Janak C. Mehta & Ors., reported in (2009) 1 SCC 516, the Hon‟ble Apex Court after considering a number of cases on the point of quashing of criminal prosecution held that High Court will not quash the prosecution case, unless the allegation taken at its face value does not disclose cognizable offence. Furthermore, as held in case of P. Swaroop Rani (Supra), reported in 2008(3) PLJR SC 299, if the complaint discloses commission of criminal offence, then even if the case has some element of civil dispute, the criminal prosecution cannot be quashed. The case law relied upon by the petitioner would not be relevant, as this Court has observed above, that the prosecution case and charge-sheet do disclose a prima facie offence, as such there is no illegality in order dated 13.01.2004 taking cognizance under Sections 467, 468, 471, 419, 420 and 120 B of the Indian Penal Code. I am equally not impressed with the petitioner‟s submission that the informant did not have locus to file the instant case, more so, as he had alleged that the accused persons are trying to usurp his land by playing fraud and impersonation. In the result, there is no merit in this application and the same is dismissed. Uday/ (Samarendra Pratap Singh, J.)