Mohni Bala Verma v. THE STATE OF BIHAR

For the petitioners : Mr. Mukesh Kr. Thakur, Advocate For the State : Mr. Jharkhandi Upadhaya, A.P.P. For Opp.Party no.2 : Mr. Shashi Bhushan Singh, Advocate. --------------- O R D E R The four petitioners , who have been arrayed as accused in Complaint Case No.23 ( C) of 2006, have prayed for the quashing of the order dated 14.7.2006 passed therein by Sri A.K.Gupta, Judicial Magistrate, Begusarai, whereby he has taken cognizance against the petitioners under Sections 341, 323, 504, 417 and 465 I.P.C. Ajay Kumar Rukhiyar, the complainant, impleaded herein as Opp.Party no.2, filed the aforesaid complaint inter alia stating that his grand-father Parmeshwari Prasad got 6 bighas 14 kathas 14 dhurs of land pertaining to Tauzi No.2247 Khevat ( Share-1), Shumar No.10/1, from Most. Ishwari Prasad and Mostt. Chandrawati Kumari in the year 1906 and after mutation his name was incorporated in - 2 - Register-D. It is further stated that the petitioners are his Gotias and they have no right over the said lands and in support thereof a genealogical table has been provided in paragraph 5 of the complaint. It is alleged that one month prior to the filing of the complaint petition he came to know that the said land is being measured by someone, whereupon he along with witness nos.1 and 2 went to the said land and found Manoj Kumar and Niraj Kumar getting the land measured and on query they informed that they have purchased 2 kathas 6 dhurs of land from petitioner no.1. He claims to have got the record verified from the Registry office and found that petitioner no.1 was going to get the said lands registered in which petitioner no.4, her son-in-law, was a witness and the Kewala had been scribed on 4.10.2005. He further claims to have gone to petitioner no.1 who realizing her mistake assured in the presence of petitioner nos.2 and 3 to sort out the matter during X-mas holidays, but till 25.12.2005 no action was taken on one pretext or the other. It is further alleged that on 1.1.2006 he learnt that the petitioners were to go to Patna on the following day , whereupon at about 12 noon he went to the petitioners with a request to sort out the matter, but they became furious and petitioner no.2 pushed him and blurted out that what had happened had happened and would not be rectified and also threatened the complainant in the presence of witness nos. 3 and 4 of serious consequences. The submission advanced by the learned counsel for the petitioners is that it would be apparent from a bare perusal of the - 3 - complaint petition that the allegations levelled are baseless and vexatious only to harass the petitioners who were fairly advanced in age and even the purported genealogical table was a misnomer, in asmuch as the names of several co-sharers had been omitted. It was further submitted that the fact of the allegations being concocted would be apparent from the plaint of Title Suit No.162 of 1996 filed by the father of the complainant, wherein defendant nos. 10,11 and 12 are respectively petitioner nos.2 and 3 and husband of petitioner no.1 and recital therein was that they were co-sharers and the subject matter of the suit was Khata no.76 , Khesra No.341, which are the lands which are in dispute in the instant case. Lastly , it was submitted that even if the accusation in the complaint petition are accepted on their face value , at best it would amount to a civil cause of action for which relief ought to have been sought before a court of competent civil jurisdiction and the offences whereunder cognizance has been taken are not made out since the ingredients of those offences are not present. Opp.Party no.2 had appeared by filing a Vakalatnama but no show cause or counter affidavit has been filed on his behalf. Through oral submissions, the learned counsel for Opp.Party no.2 sought to justify the impugned order by contending that the intention of the petitioners herein from the very initial stage was to surreptitiously sell all the lands belonging to Opp.Party no.2. Apparently, from the submissions advanced by the parties and in view of the pendency of the civil suit, it appears that the right , - 4 - title and interest of the parties are still in dispute which remains to be resolved. In these circumstances, Opp.Party no.2 could not have claimed unfettered right, title and interest over the land which is the subject matter of the instant case. If Opp.Party no.2 was apprehending of his land being sold, he could have moved the court in seisin of the Title Suit for appropriate reliefs instead of filing a criminal case. The fact remains that from the assertions made in the complaint petition, the entire dispute is civil in nature and the petitioners cannot be subjected to criminal liability. The Apex Court as also this Court through a catena of decisions have categorically deprecated the present day tendency of filing criminal cases where the cause of action is civil in nature and remedy is available before the court of civil jurisdiction. The instant case appears to be a clear case of the abuse of the process of the court which cannot be sustained in law. Accordingly the application succeeds and the impugned order is hereby set aside. ( Abhijit Sinha, J ) Patna High Court,Patna Dated : the 24th June,2009 Nawal Kishore Singh/A.F.R.