1. Md. Tufail Ahmad, aged about 42 years 2. Julfikar Ahmad @ Zulfuyqar Ahmed v. 1. The State of Jharkhand 2. Md. Badruddin, son
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr.M.P. No.3983 of 2018 ------ 1. Md. Tufail Ahmad, aged about 42 years 2. Julfikar Ahmad @ Zulfuyqar Ahmed, aged about 60 years. Sl. No.1 & 2 both sons of Md. Nasruddin 3. Arsad Aalam @ Md. Arshad Alam, aged about 34 years, son of Khursid Aalam. 4. Deleted (vide order dated 18.06.2024) 5. Md. Kaisar Jahan @ Soni @ Kaushar Jahan about 34 years, wife of Tufail Ahmad; Sl. No.1 to 3 and 4 and 5 are residents of L.C. Road, Sahibganj, P.S.- Sahibganj, P.O. & District- Sahibganj (Jharkhand) … Petitioners Versus 1. The State of Jharkhand 2. Md. Badruddin, son of Late Khalil Khalifa, resident of L.C. Road, Sahibganj, P.S.- Sahibganj, P.O. & District- Sahibganj (Jharkhand) … Opposite Parties ------ For the Petitioners For the State For the O.P. No.2
Legal Reasoning
: Mr. A. K. Kashyap, Sr. Advocate Md. Imitaz Khan, Advocate : Mr. Sunil Kr. Dubey, Addl.P.P. : Mr. Ashish Kr. Thakur, Advocate Ms. Kabisha Goenka, Advocate ------ P R E S E N T HON’BLE MR. JUSTICE ANIL KUMAR CHOUDHARY By the Court:- Heard the parties. 2. This Criminal Miscellaneous Petition has been filed invoking the jurisdiction of this Court under Section 482 of the Code of Criminal Procedure with a prayer to quash and set aside the entire criminal proceedings and prosecution including the order dated 17.05.2017 passed by the learned Chief 1 Cr. M.P. No.3983 of 2018 Judicial Magistrate, Sahibganj in connection with Complaint Case No.500 of 2016 whereby and where under cognizance has been taken for the offences punishable under Sections 147, 323 and 379 of the Indian Penal Code and also the order dated 09.10.2018 passed in connection with Cr. Revision No.65 of 2017 passed by the learned Sessions Judge, Sahibganj by which the learned Sessions Judge, Sahibganj has dismissed the Criminal Revision filed against the said order dated 17.05.2017. 3. The brief fact of the case is that the complainant is the owner of the land which he gave on rent for running a hotel. The accused persons by cheating got a sale-deed registered at Kolkata in respect of the said portion of the building of the complainant through the brother of the complainant and even though the land was a disputed one, the accused persons of the case have illegally sold the same through an agreement. It is next alleged that the petitioners being armed with deadly weapons, demolished the said house given on rent to them and when the complainant protested the same, they abused and assaulted the complainant. The complainant filed P.C.R. Case No.233 of 2015 in the court of learned Chief Judicial Magistrate, Sahibganj which was referred to police under Section 156 (3) of the Cr.P.C. on the basis of which Sahibganj (Town) P.S. Case No.19 of 2016 was registered and police took up investigation of the case. After investigation, police submitted Final Form intimating that the fact is not true and did not send up the petitioner for trial. Subsequently, the complaint filed a protest petition which was registered as Complaint Case No.500 of 2016 and the court recorded the statement on solemn affirmation of the complainant wherein the complainant has not stated anything about hurt being caused to him or anyone else or commission of theft by the petitioners. Some of the 2 Cr. M.P. No.3983 of 2018 enquiry witnesses have stated about the complainant being pushed and the accused persons taking the bricks, steel sheets, window pans etc. of the demolished house with them. Basing upon the same, the learned Chief Judicial Magistrate, Sahibganj found prima facie case for the offence punishable under Sections 147, 323, 379 of the Indian Penal Code and ordered for issue of summons. The petitioner filed Cr. Revision No.65 of 2017 in the court of learned Sessions Judge, Sahibganj but the learned Sessions, Sahibganj considered that the elder brother of the complainant has sold the property; in spite of stay orders of the Commissioner, Dumka. The learned Sessions Judge, Sahibganj did not find any irregularity and illegality in the said order of cognizance passed by the learned Chief Judicial Magistrate, Sahibganj and dismissed the Cr. Revision. 4. Learned senior counsel for the petitioners submits that the there is absolutely no allegation against the petitioners anywhere in the complaint which was treated as F.I.R. or the protest petition, of formation of any unlawful assembly. So, in the absence of any formation of any unlawful assembly, the offence punishable under Section 147 of the Indian Penal Code is not made out even if the entire allegations made against the petitioners are considered to be true in their entirety. 5. It is next submitted that so far as the offence punishable under Section 323 of the Indian Penal Code is concerned, the only victim appears to be the complainant/informant. In his statement on solemn affirmation, he has not whispered about any hurt being caused to him and only one enquiry witness being the E.W.-2 has stated that someone pushed the complainant. There is no material in the record that any of the petitioners have pushed the complainant. 3 Cr. M.P. No.3983 of 2018 It is then submitted that, in the absence of any material whatsoever that the petitioners have caused hurt to the complainant or anyone else, even if the entire allegations against the petitioners are considered to be true in their entirety still the offence punishable under Section 323 of the Indian Penal Code is not made out against the petitioners. 6. So far as the offence punishable under Section 379 of the Indian Penal Code is concerned, it is submitted by the learned senior counsel for the petitioners that it is the admitted case of the complainant himself that his brother has sold the property which was demolished by the accused persons, so, the complainant has not challenged the said sale in the competent civil court. So, there is a bona fide land dispute between the parties under which the petitioners are also claiming ownership over the land which was demolished by them under a bona fide title accrued to them by virtue of the undisputed sale- deed executed by the brother of the complainant. So, when they claim to be the bona fide owner of the land, the offence punishable under Section 379 of the Indian Penal Code, for taking away the property which belongs to them, consequent upon the said undisputed purchase of the same by way of a registered sale-deed, is insufficient to constitute the offence punishable under Section 379 of the Indian Penal Code. 7. Hence, it is submitted that since none of the offences for which the cognizance has been taken by the learned Chief Judicial Magistrate, Sahibganj is made out against the petitioners even if the entire allegations are considered to be true in their entirety, therefore, the continuation of this criminal proceedings against the petitioners will amount to abuse of process of law and the learned Chief Judicial Magistrate, Sahibganj as well as the learned Sessions 4 Cr. M.P. No.3983 of 2018 Judge, Sahibganj have committed a grave illegality and perversity by failing to take into consideration that even if the entire allegations made against the petitioners are considered to be true still none of the offence for which prima facie case has been found by the learned Chief Judicial Magistrate, Sahibganj, is made out. Therefore, it is submitted that the prayer of the petitioners, as prayed for in the instant Criminal Miscellaneous Petition, be allowed. 8. Learned Addl.P.P. appearing for the State and the learned counsel for the opposite party No.2 on the other hand vehemently oppose the prayer of the petitioners made in the instant Criminal Miscellaneous Petition and submit that the sale made by the brother of the complainant to the petitioners is illegal but fairly submits that no competent court has declared the same to be illegal as yet. It is next submitted that as the allegations against the petitioners make out all the three offences punishable under Sections 147, 323, 379 of the Indian Penal Code, hence, it is submitted that this Cr.M.P., being without any merit, be dismissed. 9. Having heard the rival submissions made at the Bar and after carefully going through the materials available in the record, it is pertinent to mention here that there is absolutely no allegation against the petitioners of being member of any unlawful assembly. Nor there is any allegation that any unlawful assembly was made. There is no allegation against the petitioners that, of being members of any unlawful assembly. In the absence of the same, this Court has no hesitation in holding that even if the entire allegations made against the petitioners are considered to be true in their entirety, still the same is insufficient to constitute the offence punishable under Section 147 of the Indian Penal Code. 5 Cr. M.P. No.3983 of 2018 10. So far as the offence punishable under Section 323 of the Indian Penal Code is concerned, there is absolutely no allegation against any of the petitioners either in the statement on solemn affirmation of the complainant or in the deposition of the enquiry witnesses that who amongst the petitioners has pushed the complainant nor is there any allegation that hurt was caused to complainant by such pushing. Under such circumstances, this Court has no hesitation in holding that even if the allegations against made against the petitioners are considered to be true in their entirety still the same is insufficient to constitute the offence punishable under Section 323 of the Indian Penal Code. 11. So far as the offence punishable under Section 379 of the Indian Penal Code is concerned, it is a settled principle of law that where a bona fide claim of right exists, it affords a good defence to a prosecution for theft. An act does not amount to theft, unless there be not only no legal right but also no appearance or colour of a legal right, as has been held by the Hon’ble Supreme Court of India in the case of Chandi Kumar Das Karmarkar & Another vs. Abanidhar Roy reported in AIR 1965 SC 585 as also in the case of Suvvari Sanyasi Apparao & Another vs. Boddepalli Lakshminarayana & Another reported in AIR 1962 SC 586. 12. Now, coming to the facts of the case, the undisputed fact remains that the brother of the complainant has executed a registered sale-deed in respect of the property which has been allegedly demolished by the petitioners, in favour of the petitioners. So, under such circumstances, this Court has no hesitation in holding that the petitioners have a bona fide claim of right or at least a colour of a legal right. 6 Cr. M.P. No.3983 of 2018 13. Therefore, this Court is of the considered view that even if the allegations against made against the petitioners are considered to be true in their entirety, still the same is insufficient to constitute the offence punishable under Section 379 of the Indian Penal Code. 14. In view of the discussions made above, since none of the three offences in respect of which the learned Chief Judicial Magistrate, Sahibganj has found prima facie case against the petitioners, is made out against them even if the entire allegations against them are considered to be true, hence, the learned Chief Judicial Magistrate, Sahibganj in the order dated 17.05.2017 passed in connection with Complaint Case No.500 of 2016 as well as the learned Sessions Judge, Sahibganj in its order dated 09.10.2018 passed in connection with Cr. Revision No.65 of 2017 have committed a gross illegality and perversity by justifying continuation of the criminal proceeding against the petitioners. 15. Accordingly, the entire criminal proceedings including the order dated 17.05.2017 passed by the learned Chief Judicial Magistrate, Sahibganj in connection with Complaint Case No.500 of 2016 as well as the order dated 09.10.2018 passed by the learned Sessions Judge, Sahibganj in connection with Cr. Revision No.65 of 2017 are quashed and set aside qua the petitioners named above only. 16.
Decision
In the result, this Cr.M.P. stands allowed. (Anil Kumar Choudhary, J.) High Court of Jharkhand, Ranchi Dated the 23rd of October, 2024 AFR/ Animesh 7 Cr. M.P. No.3983 of 2018