Patna High Court · 2010
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Miscellaneous No.10765 of 2011 ====================================================== 1. Binod Kumar Jha S/O Sri Nageshwar Jha Resident Of Village- Mahinam, Police Station- Bahera, District- Darbhanga 2. Rameshwar Lal Karn S/O Late Krishna Bihari Lal Resident Of Village- Mahinam, Police Station- Bahera, District- Darbhanga 3. Manoj Sahani S/O Late Janak Sahani Resident Of Village- Mahinam, Police Station- Bahera, District- Darbhanga Versus .... .... Petitioner/s 1. The State Of Bihar 2. Shishir Kumar Jha S/O Sri Kulanand Jha Resident Of Village- Pahaddi, Police Station- Bahera, District- Darbhanga .... .... Opposite Party/s ====================================================== Appearance : For the Petitioner/s : Mr. Gajendra Kumar Jha,Adv. For the Opposite Party/s : Mr. Girish Chandra Jha,Adv. For the State : Mr. Umapati Mishra,APP. ====================================================== CORAM: HONOURABLE MR. JUSTICE SHIVAJI PANDEY ORAL ORDER 4 17-05-2013 In this case, petitioners are challenging the order of cognizance dated 13th December 2010 passed by learned S.D.J.M., Benipur in Tr. No. 903 of 2010, C.R. No. 349 of 2010 by which he has taken cognizance u/s 406, 420/34 IPC. From the complaint petition it appears that the allegation has been made that Lord Shiva Temple has been standing in Revenue Khata No. 102, 2434, Khesra No. 7302 and others with the boundaries of Revenue village Pahaddi. Allegation has been made, under conspiracy the Mukhiya held Aam Sabha and decision was taken that the trust of temple registered under the Bihar Religious Trust Act before the Bihar Religious Trust 2
Legal Reasoning
Patna High Court Cr.Misc. No.10765 of 2011 (4) dt.17-05-2013 2 / 5 Board vide Registration No. 3872 of 2008 wrongly shown place of temple standing in village Mahinam has been attached with the boundary. Further allegation has been made of causing a loss of Rs.1,00,000/- (one lac) or having misappropriated the same. The complaint case was registered as Complaint Case No.35 of 2010. The same was referred under Section 156(3) Cr.P.C. to the Police and the Police, after investigation, gave its opinion about dispute of civil nature. On the basis of protest petition, the court took cognizance as aforesaid. Counsel for the petitioner submits that the cause for filing the present case is showing of name of village Mahinam with temple whereas the complainant was of the view that the name of his village Pahaddi should be there. As per record, new Management filed an application before the Bihar Religious ;Trust Board giving the temple standing in two village Mahinam-Pahaddi but the Notification was issued by the Board in the name of village Mahinam. Managing Committee passed a resolution for addition of name of Pahaddi and for that necessary fee was also deposited. Counsel for the petitioner submits that the allegation that has been made in the complaint petition, the complainant is not sure of having caused a loss of fund aforesaid or having misappropriated the same as in the complaint petition it has been 3 Patna High Court Cr.Misc. No.10765 of 2011 (4) dt.17-05-2013 3 / 5 alleged that either they have caused loss of Rupees one lac or they have misappropriated the same without any specific allegation against any particular person. It has been further submitted that the dispute that has been narrated in the complaint petition shows that it is essentially of civil nature and there is no ingredient of criminal offence. Even if the allegations are taken to be true, it does not make out any criminal offence and, as such, the order of cognizance is liable to be quashed. Counsel for the O.P.No.2 vehemently opposed the submission of the petitioners and submitted that they by playing fraud have changed the name of revenue village of the temple somuch so that allegation of misappropriation of fund has been raised. It has further been submitted that the allegation made in the complaint petition has been affirmed and supported by the witnesses. The court has committed no illegality in taking cognizance. Counsel for the O.P. heavily relied on the Annexures- C & D which are reports of the authorities showing the revenue plot where the temple was standing . In the case of Indian Oil Corporation v. NEPC India Ltd. (2006)6 SCC 736 the Hon’ble Supreme Court has held that a complaint can be quashed where the allegation made in the complaint petition even if they are taken 4 Patna High Court Cr.Misc. No.10765 of 2011 (4) dt.17-05-2013 4 / 5 on their face value and accepted in whole do not prima facie constitute any offence or make out the case alleged against the accused. The Court further held that complaint may also be quashed where it is a clear abuse of the process of the court and also the criminal proceeding is found to have been initiated with mala fides/malice for wreaking vengeance or to cause harm, or where the allegations are absurd and inherently improbable. It has given a rider that the power to quash shall not, however, be used to stifle or scuttle a legitimate prosecution. The power should be used sparingly and with abundant caution. It has also been held, if a given set of facts may make out: (a) purely a civil wrong; or (b) purely a criminal offence; or (c) a civil wrong as also a criminal offence. If from facts mentioned in complaint petition does constitute civil as criminal wrong, pending of civil case will not be bar to criminal case. Hon’ble Supreme Court has taken judicial notice even in a case arising from commercial transaction or a contractual dispute, seeking remedy under civil law applying short cut method used to file criminal case Hon’ble Supreme Court denounced the method. In the present case, it appears from complaint petition, the dispute is basically attaching name of village Mahinam whereas other villagers were of the view that the temple in 5 Patna High Court Cr.Misc. No.10765 of 2011 (4) dt.17-05-2013 5 / 5 question was standing in their revenue village and, as such, the temple should be attached with their revenue village in stead of village Mahinam which is cause of lodging the present complaint case. It also appears that the objection petition has been filed before the Bihar Religious Trust Board wrongly recording of village and it has been asserted by the counsel for the O.P.No.2 that the Board has passed the order in their favour. Basically allegation made in the complaint petition is essential in the nature of civil dispute and that too as per the O.P.N0.2 it has been settled in their favour during the pendency of the criminal case and, as such, continuation of this proceeding will not serve any purpose and is a misuse of authority of law. In order to prevent the abuse of process of court and to secure ends of justice, this Court feels that it is an appropriate case where the Court should exercise it s inherent power. Accordingly, the impugned order of cognizance is quashed and this petition is allowed. Jay/- (Shivaji Pandey, J)