The main legal point established in the judgment is the requirement for a finding of the alleged deed of gift being forged and fabricated by a court of competent jurisdiction before taking cognizance, and the principle that a private complaint in such cases was not maintainable.

1. This application at the instance of the petitioners herein seeks to question the propriety of the order dated 8.5.2004 passed by Shri Hemant Kumar Srivastava, learned Sessions Judge, Munger, Camp Court at Lakhisarai, in Cr. Revision No. 22 of 2001 whereby he has approved the order dated 30.8.2001 passed by the learned Sub-Divisional Judicial Magistrate, Lakhisarai, in Lakhisarai PS. Case No. 402 of 1993, G.R. No. 1056 of 1993 whereby the learned Magistrate rejected the petition under sec. 239 of Cr.RC. filed by the petitioners herein for their discharge.

2. The prosecution case is based on the complaint petition bearing No. 41C of 1993 filed by opposite party no. 2 herein which was transmitted to the concerned PS. under sec. 156(3) Cr.RC. and accordingly the aforesaid Lakhisarai RS. Case No. 402 of 1993 was registered under Sections 467, 468, 471, 420 and 323 I.P.C. It was alleged therein, inter alia, that 16 decimals of land appertaining to Khata No. 292, Plot No. 53 in Mauja-Jainagar had been gifted by one Mostt. Sundari Devi to the complainants wife Smt. Akasho Devi by registered deed of gift dated 28.7.1979 and she came in exclusive possession thereof and her possession over the said lands was continuing even till today. However, the accused persons with ulterior motive prepared a fabricated deed of gift of the lands in question in favour of Naw Yuvak Durga Samiti and executed the same and on the basis thereof attempted to usurp the lands of his wife and also created a situation of breach of peace for which a proceeding under sec. 107 Cr.P.C. was initiated. It is said that the complainant and his wife for the first time came to know of the forged and fabricated deed of gift in the proceeding under Sec.107 Cr.P.C.

3. It appears that the police after due investigation submitted a final report showing the case to be of civil nature. However, the learned Magistrate having differed with the report of the police and on the basis of the protest petition filed by the complainant took cognizance under Sections 467 and 471 of the Indian Penal Code and summons were directed to be issued to the accused persons.

4. It has been contended on behalf of the petitioners that from the materials available in the record including the case diary no commission of offences aforesaid can be said to have been made out so far as the petitioners are concerned and, accordingly, prayed for their discharge. But the learned Magistrate rejected the prayer and in revision before the Sessions Court the rejection order of the Magistrate was upheld.

5. As before the two courts below it has been submitted that the case being of civil nature no criminal liability could be fastened on the petitioners. The further grievance of the petitioners is that once the investigating officer had found no evidence for the offence alleged by the complainant the learned Magistrate had erred in relying upon the protest petition filed by the complainant and taking cognizance without examining any witness under Sec.202 Cr.P.C. In this connection it was sought to be pointed out that once the Magistrate had disagreed with the investigation report he ought to have treated the protest petition filed by the complainant as a complaint petition and proceeded under Sec.202 Cr.P.C. before taking cognizance and this act of the learned Magistrate was not only illegal but without jurisdiction. They have also made a grievance against the revisional order since the learned Sessions Judge rejected the revision without considering the legal implications. The learned counsel further sought to point out that no court can frame charge against any accused in absence of specific allegation and role played by the accused. That apart when the complainant himself admitted that he came to know of the mischief and fabrication of the deed of gift when it was filed in the proceeding before the learned Executive Magistrate, then it was only for the court itself to have filed the complaint regardin