Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Appeal (U/S) No.1 of 2005 =========================================================== Md. Laiqur Rahman, son of Late Haji Abdus Samad, resident of village-Hakka, P.S.-Amour, District-Purnea. .... .... Complainant…….Appellant Versus 1. Naimuzzaman, son of Late Ismail. 2. Basiruddin 3. Qamruzzaman. 4. Nooruzamma Respondent nos. 2 to 4 are son of Late Ismail. 5. Badiuzzaman, son of Late Ismail. 6. Juman, son of Badiuzzama. 7. Mahboob, son of Late Siddique. 8. Jawed, son of Late Rafique. 9. Shahid, son of late Massiuzzama. 10. Shalim, son of Late Shomai. 11. Akhtar, son of Shomai. 12. Maslu, son of Late Alauddin. 13. Farooque, son of Masleh. 14. Bhaglu, son of Cali Baks. 15. Moquid, son of Cali Baks. 16. x x x x x x x xx x x x x x 17. Baoukai, son of Bhaglu. 18. Pana, son of Bhaglu Respondent nos. 1 to 18 are resident of village-Hakka, P.S.-Amour, District- Purnea. 19. Jalil, son of Late Sumaid Ali. 20. Shamid, son of Late Sumaid Ali. 21. Hamid, son of Late Sumaid Ali. 22. Sallo, son of Jalil. 23. Alam, son of Jalil. 24. Shamim, son of Bholai. 25. Kalim, son of Late Bholai. 26. Rashid, son of Late Middun. 27. Jakir, son of Late Fagu. 28. Shakil, son of Fage. 29. Karim, son of Late Kamruddin. 30. Akram, son of Late Kamruddin. 31. x x x x x x x x x x x Respondent nos. 19 to 30 are resident of village-Ghat tola Hakka, P.S.-Amour, District-Purnea. 32. Shulaiman, son of Late Saghir. 33. Zakrul, son of late Rahman. 34. Aolda, son of Bokai. 35. Safedul, son of Late Majid. Respondent nos. 32 to 35 resident of village-Raharia, tola Hakka, P.S.-Amour, District-Purnea. 36. The State of Bihar. .... .... Respondent/s……Opposite Parties =========================================================== Appearance : For the Appellant/s : Mr. Arbind Kumar, Advocate. For the Respondent/s : Mr. Nadimul Hassan =========================================================== 2 Patna High Court CR. APP (U/S) No.1 of 2005 dt.29-01-2013 2 / 14 CORAM: HONOURABLE MR. JUSTICE ASHWANI KUMAR SINGH ORAL JUDGMENT Date: 29-01-2013 The present appeal has been filed under Section 378(4) of the Code of Criminal Procedure in pursuance of the leave granted by this Court on 31.8.2004 in S.L.A. No. 56 of 2001. The appeal is directed against the judgment of acquittal dated 16th March, 2001 passed by the learned Judicial Magistrate, 1st Class, Purnea in Complaint Case No. 791 of 1992 corresponding to Tr. No. 859 of 2001. 2. During pendency of the appeal, respondent nos. 16 & 31 died. The appellant filed I.A. No. 522/2002 for deleting their names and, accordingly, by order dated 26.9.2003 this Court directed to expunge their names from the list of respondents. 3. The appellant had filed Complaint Case No. 791 of 1992 in the court of the learned Chief Judicial Magistrate, Purnea on 3.10.1992 alleging inter alia that the complainant and his father Late Abdus Samad has purchased land of mouza Dumri and Ekra measuring an area of 6.01 acres through registered sale deed dated 19.12.1977 from Md. Khalil. After the death, Abdus Samad the complainant, his brothers and sisters came in possession over the entire land. The family being joint, the complainant was looking after the property as Karta of the family. The purchased land was in 3
Facts
Patna High Court CR. APP (U/S) No.1 of 2005 dt.29-01-2013 3 / 14 peaceful cultivating possession of the complainant since the date of purchase and the complainant had sown Bhadai Pusa Paddy and Jute crops over the said land. The accused Naimuzzaman and his brothers created trouble and, as such, a proceeding under Section 145 Cr.P.C. was initiated in respect of the aforesaid land and the same was pending before the Executive Magistrate. The complainant got information that accused Naimuzzaman and others were intending to loot away the standing paddy and Jute crops grown by the complainant. The complainant filed a petition in the court of the Executive Magistrate on 25.8.1992 to harvest the standing crop through the agency of court and keep it with third party as there was imminent danger of blood shed. The learned Magistrate directed the Circle Officer, Amour to restrain the parties from going upon the land. He also directed him to harvest the crops in presence of the parties. Accordingly, the Circle Officer informed both the parties through notice which was received on 6.9.1992 by the accused Naimuzzaman and his men. In the meantime, the Halka Karamchari was deputed to take care of the standing crops. 4. According to the complainant, the accused persons being variously armed with deadly weapons, formed an unlawful assembly and on 8.9.1992 looted away the paddy crops worth Rs. 5,000/- from plot nos. 21, 183 & 258 of mouza-Dumri, P.S.-Amour, District-Purena. 4 Patna High Court CR. APP (U/S) No.1 of 2005 dt.29-01-2013 4 / 14 5. The complainant further alleged that the Circle Officer asked the Officer Incharge of Amour Police Station to take care of the jute crops and, accordingly, the local chowkidars were deputed to look after the jute crops but, on 16.9.1992, the accused persons being variously armed, formed an unlawful assembly and illegally trespassed upon the plot nos. 23, 183, 184 and 185 of mouza Dumri and looted away jute crops worth Rs. 3,000/-. The complainant could not protest the illegal action of the accused persons due to fear of life. It is alleged that the complainant informed the matter to the Executive Magistrate but, since he failed to take any action, the complaint was belatedly filed. 6. On the basis of the aforesaid allegations, the learned Chief Judicial Magistrate, Purnea registered Complaint Case No. 791 of 1992. The matter was made over to the learned Judicial Magistrate, 1st Class, under Section 192 of the Code of Criminal Procedure. The learned Judicial Magistrate conducted inquiry under Section 202 of
Legal Reasoning
the Code of Criminal Procedure and finding a prima facie case to be made out under Sections 147, 148 and 379 of the Indian Penal Code he summoned the accused persons to face trial. On 16.10.1998 charges were framed under Sections 147, 148 & 379 of the Indian Penal Code to which they pleaded not guilty and claimed to be tried and, accordingly, the trial commenced. 7. In course of trial, altogether four witnesses were 5 Patna High Court CR. APP (U/S) No.1 of 2005 dt.29-01-2013 5 / 14 examined on behalf of the prosecution. The prosecution had also proved the certain documents in order to prove the charges. After conclusion of the prosecution case, statements were recorded under Section 313 of the Code of Criminal Procedure. 8. The defence has also examined two witnesses in order to prove innocence of the accused persons. Apart from the two witnesses, some documents were also proved on behalf of the defence in course of trial. 9. From perusal of the oral and documentary evidence adduced on behalf of the complainant in course of trial, it appears that the case of the prosecution is that land of Khata No. 53 and Khata No. 48 of mouza Ekra and Khata No. 36 of mouza Dumri, P.S.-Amour belonged to Md. Ismail, Md. Siddique, Rafique and name of aforesaid persons were recorded in the revisional survey record of right. They were coming in joint possession of the aforesaid land. Md. Ismail one of the recorded tenant sold away 0.36 acres of land to one Md. Khalil by virtue of a registered sale deed on 24.3.1966 for a valuable consideration of Rs. 2000/- as the aforesaid land was under usufructure mortgage, Late Md. Khalil withheld the amount of land to the tune of Rs. 1000/- for being paid to the mortgage and paid the remaining amount to the vendor. The vendor delivered the possession of the said land in plot nos. 21, 23 & 258 to the vendee. On the same day, late Md. Israil, by virtue of registered sale deed sold away 1.85 6 Patna High Court CR. APP (U/S) No.1 of 2005 dt.29-01-2013 6 / 14 acres of land of Khata No. 53, 00.92 decimals of land out of Khata No. 36, 00.18 decimals of land out of Khata No. 42 measuring a total area of 02.98 acres to the same purchaser late Md. Khalil for a consideration amount of Rs. 2000/-. The aforesaid land was also under mortgage to one Seikh Kailu for a sum of Rs. 400/-. The purchaser Md. Khalil, withheld the loan amount with the consent of the vendor and paid the remaining amount of consideration to the vendor. The said mortgage was duly redeemed by the purchaser late Md. Khalil and he came in possession of the same after purchase of land. Md. Khalil applied for mutation and his name was mutated. 10. On the other hand, the defence of the accused persons is that admittedly the lands in question were recorded in the name of Md. Ismail and his brothers. Md. Ismail never sold the land to Md. Khalil. As Md. Israil was in need of money, he approached Md. Khalil, who was money-lender of the locality to advance loan, but, he refused to advance loan against the mortgage of any land. He wanted to secure payment of loan amount and he asked Md. Ismail to execute deed for his land. It was agreed between the parties that the nomenclature of the deed should be of kewala but, in reality, it would be a mortgage deed. It was also agreed that on the basis of such deed, title and possession of the land would not pass over to Md. Khalil rather it will remain as usual with Md. Ismail. Md. Khalil never came in possession over the said land. 7 Patna High Court CR. APP (U/S) No.1 of 2005 dt.29-01-2013 7 / 14 11. The further defence of the accused persons is that Seikh Kailu was Sudhbharnedar for the land of Khata No. 36 and 42 of mouza-Dumri. When Md. Ismail redeemed the Sudhbharna, seikh Kailu executed registered receipt for the same on 5.4.1966 as by that time, Seikh Ismail has already executed the so-called ‘kewala’ for a nominal consideration. The receipt was prepared in the name of Md. Khalil but, Md. Ismail took delivery of the original receipt. In sum and substance the defence of the accused persons is that the complainant had never come in possession of the land in question. 12. It is relevant to note here that the complainant and others had filed Title Suit No. 124 of 1986 with respect to the land in question for declaration that order of Commissioner of Kosi Division, Saharsa passed in 8.5.1986, order dated 22.4.1982 passed by the Circle Officer, Amour in Case No. 100/81-82 and the order dated 8.1.1983 passed by the DCLR, Purnea in Case No. 36/82-83 are illegal, invalid and without jurisdiction. They had further prayed in the said suit for declaration of their right, title, interest and possession over the suit land. In the alternative, it was prayed that if it was found they have been illegally dispossessed from the suit land during pendency of the suit, a decree for recovery of possession be passed. 13. After trial, the learned Sub-Judge-II, Purnea by his judgment dated 8.8.1994 decreed the suit in favour of the members of the prosecution party. The said judgment was challenged in Title 8 Patna High Court CR. APP (U/S) No.1 of 2005 dt.29-01-2013 8 / 14 Appeal No. 72 of 1994 by the accused persons. The learned 4th Additional District Judge, Purnea by his judgment dated 3.8.1998 dismissed the appeal filed on behalf of the accused persons. The judgment dated 8.8.1994 passed in Title Suit No. 124 of 1986 has been brought on record on behalf of the prosecution and marked as Ext. 1. The decree of the said case has also been brought on record and has been marked as Ext. 2. The judgment dated 20.8.1994 passed by the learned 4th Additional District Judge, Purnea in Title Appeal No. 72 of 1994 has also been proved and marked as Ext 3 on behalf of the complainant. 14. It is relevant to note here that the accused persons have challenged the judgment dated 8.8.1994 and decree dated 20.8.1994 passed by the learned Sub-Judge-II, Purnea in Title Suit No. 124 of 1986 and the judgment dated 3.8.1994 passed in Title Appeal No. 72 of 1994 by filing Second Appeal No. 382 of 1998 in the High Court. The trial court has considered the oral and documentary evidence adduced on behalf of the parties. It has held that the judgments of Title Suit and Title Appeal in question are yet not final as the Second Appeal is pending in the High Court. The complainant did not file any rent receipt in order to show that the land in question is in his possession and he is paying land revenue to the Government. 15. On the other hand, the accused persons have 9 Patna High Court CR. APP (U/S) No.1 of 2005 dt.29-01-2013 9 / 14 produced four rent receipts in respect of the land in question, which have been marked as Ext- E in order to shows that land revenue is being paid by them. 16. From the evidence, it appears that both the parties claim their right, title and possession over the land. There is ongoing land dispute between them since long. All the witnesses examined on behaf of the prosecution have stated in their examination-in-chief that at the time of occurrence, in respect of the land in dispute, a proceeding under Section 144 of the Code of Criminal Procedure was going on. The accused persons conspired together to cut the standing crops over the lands in question. According to the witnesses, the Executive Magistrate had directed the Circle Officer, Amour to get the crops harvested and in the light of the order passed by the Executive Magistrate, notices were sent to both the parties. The Circle Officer, Amour had appointed a Choukidar in order to keep watch over the land but, the accused persons being variously armed, forming an unlawful assembly, looted away paddy crops on 8.9.1992 and jute crops on 16.9.1992. 17. In course of cross-examination, the complainant has stated that at the time of occurrence, a proceeding under Section 144 Cr.P.C. vide Case No. 1439M/1986 was initiated in respect of the land measuring 6 acres and 1 decimal. The complainant has also proved order dated 17.2.1988 passed in the aforesaid case which has been 10 Patna High Court CR. APP (U/S) No.1 of 2005 dt.29-01-2013 10 / 14 marked as Ext. 1. From perusal of the aforesaid order dated 17.2.1988, it transpires that the Sub-Divisional Officer, Purnea had called for an explanation from the accused Naimuzzaman as to why a case under Section 188 of the Indian Penal Code be not instituted against him in the court of competent jurisdiction. The defence has brought on record the order dated 17.4.1993 passed in the aforesaid Case No. 1439M/1986, which has been proved and marked as Ext. A in course of trial. The said proceeding was under Section 145 of the Code of Criminal Procedure. In the order dated 17.4.1993, the Executive Magistrate has held that the Circle Officer, Amour had neither made any inquiry from the witnesses nor inspected the place of occurrence and had given a collusive report in favour of the father of the complainant and against the accused persons. Taking into consideration these facts the Executive Magistrate held that there was no justification for proceeding under Section 188 IPC against the accused persons. 18. The aforesaid order dated 17.4.1993 makes it clear that there is a bona fide land dispute between the parties. Both the parties put their claim over the land in question. It is an admitted fact that in respect of the land in question, an appeal before this Court is pending between the parties. The offence of theft consists in the dishonest taking of any moveable property out of the possession of another person without his consent. 11 Patna High Court CR. APP (U/S) No.1 of 2005 dt.29-01-2013 11 / 14 19. In case of Nurul Hoda & Ors. vs. State of Bihar & Anr since reported in 2013(1)PLJR 188 this Court in paragraph nos. 16 held as under:- “16. It is an admitted fact that with respect to the land in question over which bamboo orchard is situated, a title suit is going on between the parties. The offence of theft consists in the dishonest taking of any moveable property out of the possession of another without his consent. Dishonest intention exists when the person so taking the property intends to cause wrongful gain to himself or wrongful loss to the other. It is settled law that where a bona fide claim of right exists, it can be a good defence to a prosecution for theft. An act does not amount to theft unless there be not only no legal right but no appearance or colour of a legal right. By the expression “colour of a legal right” what is meant is not a false pretext but a fair pretext, not a complete absence of claim but a bona fide claim, however, weak.” 20. In case of Hamid Ali Bepari vs. Emperor, since reported in A.I.R. 1926 Cal, 149 it has been held as under:- “This is a rule granted against the order of the learned Additional District Magistrate of Backergunj upholding the conviction of the appellant but reducing the sentence to a fine of Rs. 100. The rule was an open rule. The learned vakil, who appears for the petitioner, has argued that 12 Patna High Court CR. APP (U/S) No.1 of 2005 dt.29-01-2013 12 / 14 the facts disclosed do not constitute any criminal offence. The facts of the case are as follows: One Sona Mia, who is the complainant, was taking two cart-loads of hide to Daulat Khan Bandar, when the petitioner seized the hides and took them to his own godown. The complainant’s case is that he purchased these hides from one Abdul Aziz. The petitioner’s case was that he had kept certain hides in Syedpur in charge of Abdul Aziz, and Abdul Ghani in collusion with Abdul Aziz, with whom the petitioner had partnership business, had disposed of these hides to Sona Mia. The Appellate Court found that the hides which were sold to Sona Mia and which Sona was taking to Daulat Khan Bandar, when they were seized by the petitioner, were the property of Abdul Aziz and that he sold them to Sona Mia ; and he held that the petitioner was not justified in removing the goods on the ground that he believed that Abdul Aziz owed him some money. He, therefore, upheld the conviction under S. 379 of the Penal Code. On these facts found I do not think that any charge of theft can be sustained against the petitioner. The essence of the offence of theft is dishonestly taking of moveable property out of the possession of some person ; “dishonesty” has been defined in S. 24 of the Indian Penal Code. A person is said to do an act dishonestly when he does it with the intention of causing wrongful gain to one person, or wrongful loss to another person. But in the 13 Patna High Court CR. APP (U/S) No.1 of 2005 dt.29-01-2013 13 / 14 present case the facts will not go to show that the appellant intended to cause any wrongful gain to himself or any wrongful loss to the complainant. He apparently acted perfectly straightforwardly throughout the transaction by keeping the goods in his own godown, and did not make any attempt to dispose of them. It seems to us that the petitioner was acting under a mistaken notion of law, believing that the property was his, and that he had the right to take the goods until the balance of the money was paid. In the absence of any dishonest intention, we do not think that the charge of theft can be sustained. We, therefore, make the rule absolute, and set aside the conviction of, and the sentence passed upon, the petitioner. The fine if paid will be refunded”. 21. I find myself in complete agreement with the above proposition of law. In the present case there appears to be a bonafide land dispute between the parties. There was no injunction order against the accused persons till the date of occurrence. There was, thus, a real dispute and a rival claim in respect of the land in question. 22. I further find that the occurrence took place on 8.9.1992 at 10 a.m. and on 16.9.1992 at 7 a.m. but, the complaint was filed belatedly on 3.10.1992. There is inordinate delay in institution of the complaint for which no reasonable explanation has been given by the prosecution. 14 Patna High Court CR. APP (U/S) No.1 of 2005 dt.29-01-2013 14 / 14 23. Taking all these facts into consideration the trial court recorded the judgment of acquittal. The trial court has given clear, cogent and convincing reasons for recording the judgment of acquittal. The findings of the trial court are neither erroneous nor perverse. 24. In that view of the matter, I do not find any merit in the present appeal. It is dismissed, accordingly. The Patna High Court The 29th January, 2013 NAFR/Sanjeet (Ashwani Kumar Singh, J.)