Ankur Kumar vs State of Bihar - 2023 Supreme(Pat) 1146

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2023 Supreme(Pat) 1146

IN THE HIGH COURT OF JUDICATURE AT PATNA
JITENDRA KUMAR, J.
Criminal Misc. No.30400 of 2016
(18.10.2023)
Ankur Kumar & Ors. ... Petitioners
vs.
State of Bihar & Anr. ... Opp. Parties

Advocates Appeared:
For the Petitioners: Mr. Binod Kumar Singh.
For the State : Mr. Upendra kumar, APP.
For the Opp. Party No. 2 : Mr. Ranjit Choubey.

Headnote:
Code of Criminal Procdure, 1973 – Section 482 – Quashing of order taking cognizance – offence alleged under Sections 323, 380, 452, 420, 467, 468 and 471 of the IPC – allegation being that the landed property belonging to the complainant has been sold by petitioners No. 1 & 2 in favour of petitioner nos. 3, 4, 5, and 6 by executing the sale-deeds without any right and title to property – petitioner nos. 7 & 8 have signed on the sale deeds as witnesses – it emerges from the statutory provisions as well as various judicial decisions that for taking cognizance of any offence and issuing summons to any accused in a complaint case, there must be a prima facie offences made out on the basis of the allegations made in the complaint and the statement made by the complainant and his witnesses during inquiry under Section 202 Cr.P.C. – however, such allegation or the statements should not be patently absurd and inherently improbable to a prudent mind – moreover, the allegation/statements made in the complaint and during enquiry under Section 202 Cr.P.C. should be examined as a whole, but the veracity of such statement could be examined at this stage – the statements have to be taken at their face value to whether prima facie case is made out or not – moreover, if the given facts makes only a civil dispute, the complainant or the cognizance/summoning order should be quashed to prevent abuse of the process of Court and promote ends of justice – in the given case on hand also, there is no allegation of impersonation of any accused persons while executing the sale deeds in question – no one has forged signature of the complainant or anybody else – the accused petitioner nos. 1 & 2 have executed the sale-deeds in regard to the land in question in favour of petitioner nos. 3, 4, 5 and 6 claiming title to the property by way of partition and inheritance – accused – petitioner nos. 7 & 8 are just witnesses to the execution of sale-deed and identifier of the parties to the sale deeds – hence, sale-deeds in question are not forged document – they are genuine ones, whether they convey title to the transferee is a legal question to be decided by Competent Civil Court – against the accused-petitioners – complaint also not made by the purchaser of the land in question – complaint does not disclose any offence under Sections 467, 468, 471, 420, 323, 380 and 452 of the IPC – the alleged facts and circumstances of the case, at most constitute a dispute of purely civil nature – present complaint is abuse of the process of the court is liable to quashed – accordingly the impugned order quashed – the application allowed. (Paras 24, 28 & 43)
(1988)1 SCC 682, (1992) Suppl. (1) SCC 335, (1970) 3 SCC 736, (1998) 5 SCC 749, (2000) 2 SCC 636, (2005) 1 SCC 122, (2005) 13 SCC 540, (2006) 6 SCC 736, (2007) 12 SCC 1, (2009) 1 SCC 516, 2022 SCC Online SC 484, (2013) 11 SCC 673, (2015) 8 SCC 293, AIR 2011 SC 1713, (2009) 8 SCc 751, (2021) 14 SCC 626, (2015) 9 SCc 96, (2018) 8 SCC 67 – Referred.

Jitendra Kumar, J. – The present petition under Section 482 of the Cr.P.C. has been preferred to quash the impugned order dated 02.09.2015, and all the criminal proceedings arising out of the same, passed by Ld. S.D.J.M, Danapur, Patna, whereby Ld. SDJM has taken cognizance of offence punishable under Section 323, 380, 452, 420, 467, 468 and 471 of the Indian Penal Code has been taken against all the Petitioners and has directed issuance of summons against them.

2. The gist of the allegation as emerging from the complaint is that one Poonam Kumari, wife of the complainant, had got a piece of land measuring 2 acre and 33 decimal in the village Purainia by way of registered gift deed bearing no. 5229/5094/1995 dated 01.09.1995 and after the death of the said Poonam Kumari, the Complainant-Husband got the mutation of the land in his own name and he was regularly paying land revenue to the government and he was in possession of the property. It is further alleged that he has also got some land from his ancestral property after partition amongst his brothers and he was in possession of the same. However, it is alleged that with an intent to grab this property, the accused no. 3, 4, 5, and 6 got sale deeds bearing no. 7008, 7006 and 7007, executed from accused no. 1 and 2 in regard to the aforesaid land. Accused no. 7 and 8 have signed on the sale deed as witnesses and identifiers. It is claimed by the Complainant that the aforesaid accused, despite knowing the fact that the aforesaid land belongs to the complainant and he is in possession of the same, hatched a conspiracy to grab that land by executing forged sale deed. There is also an allegation that on 14.07.2015, the accused no. 4, 5, 6, 7 and 8 came to his house and abused him and stated to him that his sons are in their control and then he will get them evicted even from his house, and if he protests, he would be assaulted. They also assaulted him and opened his box and took some land documents and some cash as well.

3. After pre-cognizance evidence, Ld. Magistrate took cognizance by the impugned order dated 02.09.2015 of offence punishable under Sections 323, 380, 452, 420, 467, 468 and 471 of the Indian Penal Code and directed issuance of summons against them.

4. Ld. counsel for the Petitioners submits that as per the complaint, no offence under Section 420, 467, 468 and 471 of the Indian Penal Code are made out even if all the alleged facts are admitted, because these alleged facts, at most constitute a dispute of civil nature. Petitioner No.1 and 2 are sons and daughters, of the complainant, respectively and they have sold the land in question as their share in the claimed property. They have claimed in the sale deed that after the death of their mother, they got share in that property as class -I legal heirs and they also got share in the ancestral property by way of partition and hence, they have sold this property to the Petitioner No. 3 to 6. He further submits that the Petitioner No. 7 and 8 are just witnesses to the execution and identifier of the parties to the sale deed.

5. He further submits that the allegation regarding coming to his house and extending threat and committing theft has been alleged in a routine and ornamental manner and it has no substance.

6. Hence, he submits that no prima facie case is made out and the whole complaint is abuse of process of the Court and the whole criminal proceeding arising out of the complaint is liable to be quashed under Section 482 of the Cr.P.C.

7. Ld. APP for the State as well as Ld. counsel for the Respondent No.2/Complainant, however, defend the criminal proceeding going on against the Petitioners and the order dated 02.09.2015 whereby cognizance has been taken against the Petitioners. He submits that there is no illegality or infirmity in the cognizance order and as per the alleged facts and circumstances, offenses are made which are taken cognizance of by Ld. Magistrate.

8. Before I proceed to consider the rival submission