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2004 Supreme(Pat) 1010
PATNA HIGH COURT
R.M.Prasad, J.
Paramhans Rai @ Prabhans Rai And Others
Versus
State Of Bihar
Criminal Miscellaneous No. 5132 of 2002 ;
Decided On : SEPTEMBER 22, 2004
Criminal proceedings can be quashed if maliciously instituted with an ulterior motive for wreaking vengeance against the accused persons.
Headnote:
Cognizance - Land Dispute - Indian Penal Code, 1860 Secs. 147, 148, 149, 323, 379, 427, Arms Act Sec. 25 - The court discussed the land dispute and the criminal proceedings initiated against the accused under various sections of the Indian Penal Code and the Arms Act. The court also referred to the criteria for interference in criminal proceedings as formulated by the Supreme Court in the case of State of Haryana V/s. Bhajan Lal (1992 SC 604). The court found that the criminal proceeding was instituted with an ulterior motive for wreaking vengeance against the accused persons and quashed the impugned order taking cognizance.
Fact of the Case:
The complainant alleged that the petitioners trespassed on his land, cut trees, assaulted him, and took away wood logs. The petitioners claimed possession of the disputed land based on previous legal proceedings and rent receipts.
Finding of the Court:
The court found that the criminal proceeding was instituted with an ulterior motive for wreaking vengeance against the accused persons.
Issues: The main issue was whether the criminal proceeding was maliciously instituted with an ulterior motive for wreaking vengeance against the accused persons.
Ratio Decidendi: The court referred to the criteria for interference in criminal proceedings as formulated by the Supreme Court in the case of State of Haryana V/s. Bhajan Lal (1992 SC 604) and found that the criminal proceeding was maliciously instituted with an ulterior motive for wreaking vengeance against the accused persons.
Final Decision: The miscellaneous application was allowed and the impugned order taking cognizance was quashed.
R.M.Prasad, J.
1. In this miscellaneous application, prayer is for quashing the order dated 17.1,2002 passed by the Judicial Magistrate, First Class, Siwan in complaint case, bearing No. C 1137/2001, whereby and whereunder cognizance has been taken against the petitioners under Secs. 147, 148, 149, 323. 379 and 427, Indian Penal Code, 1860 and Sec. 25 of the Arms Act and summonses have been directed to be issued.
2. The short facts giving rise to the present case are that opposite party No. 2 is the complainant, who alleged in the complaint petition that his father had purchased 3 kathas 5 dhurs of land appertaining to khata No. 229, plot No. 44 by a registered sale deed. On the same plot, some trees were standing which were being utilized by him. it is alleged that on 20th August, 2001, the petitioners variously armed went over the land and cut green mango tree, one dry mango tree and one mahua dry tree to which the complainant objected, whereunder the petitioner No. 1 tried to assault him with farsa but he escaped and other accused persons threatened to kill him but he fled away. It is further alleged that the petitioners also assaulted him with fists and legs and took away one trailer wood logs amounting to Rs. 30,000.00 . According to the complainant, he went to the Police Station to lodge a case, but the police refused to institute a case.
3. According to the learned counsel for the petitioner, the entire dispute is with respect to the aforementioned plot No. 44 of khata No. 229, for which a proceeding u/s. 145, Cr PC was initiated and also title suit No. 198 of 1988 was filed by some persons, including the father of opposite party No. 2. According to him, after examining the witnesses of both the parties and other relevant documents, the suit was dismissed, vide judgment dated 3.1.1994, in which the suit was held to be not maintainable and, further, that the petitioner No. 1 was in possession of the disputed land. In the year 1966-97, in case No. 98 rent fixation was done in favour of petitioner No. 1 and correction order was issued mentioning jamabandi Nos. 356 and 403 and since then the rent receipts are being granted to petitioner No. 1 on payment of revenue rent.
4. Thereafter, one Allauddin Sai filed miscellaneous case No. 8785-86 for correction of jamabandi which after obtaining reports from the Halka Karamchari and Amin and holding inquiry was dismissed and the jamabandi in the name of petitioner No. 1 was confirmed. According to him, a proceeding under Section 144, Cr PC was also initiated with respect to the land in question, which was converted into a proceeding u/s. 145, Cr PC vide case No. 80/85 which was finally dropped on the ground that title suit was pending in the Civil Court for the same land. Again in the year 2001 on the recommendation of the police proceeding u/s. 144, Cr PC was initiated against both the parties and in the said proceeding, opposite party No. 2 was examined as witness but he never claimed that he has any right and title over the land in question. However, in view of the fact that first appeal No. 288/94 is pending in this Court against the judgment of the Civil Court, proceeding u/s. 145, Cr PC was dropped. A copy of the deposition of opposite party No. 2 in the said proceeding has been brought on record as Annexure-9 along with the supplementary affidavit filed on behalf of the petitioners.
5. Despite the service of notice of the said supplementary affidavit, no rejoinder has been filed.
6. Perusal of the evidence of opposite party No. 2 shows that he had admitted that the cultivation is to be done by the second party over the disputed land. He was not party to the said proceeding. He also admitted that he had no concern with the cultivation over the disputed land.
7. Learned counsel for the petitioner submitted that the plaintiff-opposite party having lost in the suit has filed a complaint petition against the petitioners at the instance of Kamruddin, who lost in the procee
