Vikash Kumar v. State of Bihar

.... .... Opposite Parties ====================================================== Appearance: For the Petitioners : Mr. Yogesh Chandra Verma , Sr. Advocate Mr. Ashok Kumar, Advocate For opposite party 2 : Mr. Manoj Kumar, Advocate For the State: Mr B.N. Pandey, A. P.P. ====================================================== CORAM: HONOURABLE MR. JUSTICE HEMANT KUMAR SRIVASTAVA ORAL ORDER 16 11-03-2013 1. The petitioners have preferred this quashing petition for quashing the order dated 9.10.2009 passed by Miss Anju Singh, Judicial Magistrate, Ist Class, Patna in Complaint Case no.1536(C) 2009 by which and whereunder she, having found prima facie case for the offences under sections 323, 324, 380, 365 and 379 of the IPC, ordered to issue summons against the petitioners.

The brief fact, which lies to file this quashing petition, is that opposite party no.2 filed complaint case bearing Complaint Case no.1536(C) 2009 against the petitioners on 6.6.2009 stating therein that he being co- sharer of the land and house situated at plot no. 238 Patliputra Colony entered Patna High Court Cr.Misc. No.42877 of 2009 (16) 2 into a development agreement dated 1.9.2002 with M/s Chitra Developers & Marketing Private Limited but the petitioner no.1 being Director of the aforesaid M/s Chitra Developers & Marketing Private Limited failed to take any step regarding commencement of construction work over the above stated plot and as such the said agreement had its natural death and thereafter, he again entered into a fresh development agreement with M/s Apna Awas Construction Private Limited on 16.8.2008 and demolished major portion of old structures of the house and starting construction work with full swing. Petitioner no.1 tried to cause obstruction and interference in development work carried on by M/s Apna Awas Construction Private Limited and also got fraudulent and ex parte order from the court and on the basis of the ex parte order, on 28.5.2009 at about 6 a.m. all the petitioners along with unknown anti-social elements came over the aforesaid plot no. 238 and assaulted Umesh Kamat, the guard of the aforesaid plot as well as his wife and also committed theft of cloth and valuable articles amounting to Rs 5,000/- by breaking box and also snatched Rs 800/- and wrist watch from the aforesaid Umesh Kamat and the aforesaid Umesh Kamat was kidnapped by the petitioners.

In course of enquiry, opposite party no.2 and his two witnesses were examined and learned Judicial Magistrate, having found prima facie case under the above stated sections, passed the impugned order dated

9.10.2009 against which this quashing petition has been preferred.

Learned counsel appearing for the petitioners challenged the impugned order submitting that the above stated complaint case was filed by opposite party no.2 with malafide intention because opposite party no.2 cunningly executed second development agreement in favour of M/s Apna Patna High Court Cr.Misc. No.42877 of 2009 (16) 3 Awas Construction Private Limited without cancelling the previous development agreement dated 1.9.2002 and petitioner no.1 filed Misc. case no. 171/2008 in the court of learned Addl. Sessions Judge FTC No. IV, Patna and got an order by which opposite party no.2 was restrained from interfering in the construction work but in spite of that opposite party no.2 continued making obstruction in construction work of petitioner no.1 and being fed up with illegal act of opposite party no.2, petitioner no.1 filed Cr.W.J.C no. 1179/2008 for seeking adequate security and restraining opposite party no.2 from interfering with his work and a Bench of this court vide order dated

15.1.2009 directed the police to ensure protection of the petitioner no.1 in terms of order dated 29.9.2008 passed by learned Addl. Sessions Judge FTC No. IV, Patna in Misc. case no. 171/2008. He further submitted that the petitioner no.1 also lodged Patliputra Colony P.S. case no. 73/2009 against opposite party no.2 and others and also gave several petitions to concerned police officials and he further lodged Patliputra Colony P.S. case no. 89/2009 but in spite of the aforesaid efforts, opposite party no.2 and his henchmen continued their misdeeds and furthermore, opposite party no.2 filed the above stated Complaint Case no.1536(C) 2009 with an intent to pressurize the petitioner no.1. He further submitted that opposite party no.2 preferred MA no. 659/2008 and a Bench of this court vide order dated 16.4.2009 allowed the appeal and set aside the order dated 29.9.2008 passed by learned Addl. Sessions Judge FTC No. IV, Patna in the above stated Misc. Case no. 171 but directed the parties to maintain status quo till disposal of Request case no. 4/2009 and, therefore, the aforesaid circumstance clearly suggests that the petitioner no.1 was in possession of disputed land and there was no occasion for the petitioners to go on the disputed land and to assault the above stated Patna High Court Cr.Misc. No.42877 of 2009 (16) 4 Umesh Kamat and his wife. He further submitted that the petitioner no.1 also filed Request case no. 4/2009 before this court to settle the dispute of the parties and an arbitrator was appointed by this court in the above stated Request case no. 4/2009 but the arbitration proceeding is still pending.

On the other hand, learned counsel appearing for opposite party no.2 supported the impugned order arguing that in course of enquiry opposite party no.2 as well as witnesses supported the fact of assault and theft and, therefore, learned Judicial Magistrate rightly passed the impugned order. It is further contended by him that, no doubt, there was dispute between the parties in respect of development agreement and the aforesaid dispute is pending before the Arbitrator but it is not a proper stage to decide this fact as to which of the party is in possession of disputed plot and it would be seen in course of trial. It is further contended by him that the petitioner no.4 lodged Patliputra Colony P.S. case no. 143/2009 for the occurrence of the same day and in the aforesaid case, he disclosed that some unknown persons along with opposite party no.2 came on the disputed plot and assaulted him as well as committed theft of the articles and, therefore, both the parties admitted this fact that an occurrence had taken place on the alleged date of occurrence.

No doubt, it is an admitted position that there is a dispute between the parties regarding execution of development agreement for which parties are fighting since long and the aforesaid dispute has been referred to the arbitrator and the arbitration proceeding is still pending but in the present complaint case opposite party no.2, specifically, asserted that on the alleged date of occurrence the petitioners came on the disputed plot and assaulted one Umesh Kamat as well as his wife and also committed theft. It is an admitted position that petitioner no.4 also lodged Patliputra Colony P.S. case no. Patna High Court Cr.Misc. No.42877 of 2009 (16) 5 143/2009 in which he stated that it was opposite party no.2 and others who assaulted him and committed loot of the articles. Therefore, it is apparent that both the parties are making allegation and counter allegation against each other and, therefore, in my view, learned counsel for the opposite party no.2 rightly submitted that it is not a proper stage to decide which of the versions is genuine and I am also of the view that the aforesaid fact can be decided in course of trial.