Bachcha Singh vs Onkar Singh and State of Bihar

B.N.P. Singh, J.—This revision is against the order of reversal, by which dismissal of petition of complaint after due enquiry u/s 202 of the Code of Criminal Procedure was directed to be enquired further, setting aside the finding of enquiry, recorded by the court below.

The factual matrix are that one Onkar Nath Singh, opposite party No. 1, had been living in a house appertaining to khata No. 468, Khesra No. 1684, with leave of one Kewal Singh. He constructed two rooms at his own cost on the said premises with permission of said Kewal Singh, who happened to be his relation. However, the Petitioner claiming himself to be a person of community of Kewal Singh had been realising rent from him without issuance of receipt. There had been a proceeding before the House Controller also in which the Petitioner claiming him-self to be the son of Kewal Singh had participated in the proceeding. However, facts which eventually came to notice of opposite party No. 1 was that the disputed land had been recorded in khatiyan in the name of one Manti Devi. Some documents too which are alleged to be fabricated, were placed before the House Controller, during pendency of the proceeding. The grievance of opposite party No. 1 was that the Petitioner in collusion with other accused persons had conspired to manufac-ture fabricated documents and got his name recorded in the survey record of right, and on these accusations, a petition of complaint came to be filed before the Chief Judicial Magistrate, Katihar and enquiry as contemplated u/s 202 of the Code, eventually commenced, during which opposite party No. 1 examined two witnesses and the learned Magistrate in seisan of the proceeding, having considered various aspects of the case, dismissed Petition of complaint, holding that there was no good ground to put the accused on trial. The chapter was not closed, as the finding recorded by the learned Magistrate on conclusion of enquiry, came to be challenged in revision before 2nd Additional Sessions Judge, Katihar who reversed the finding, on premises that the documents relied by the learned Magistrate did not deserve credence within the scope of enquiry u/s 202 of the Code, same having been placed during enquiry on best of the accused person. Now it is the aggrieved Petitioner who has assailed the finding recorded by the learned revisional court and though manifold contentions were raised on behalf of the Petitioner to persuade me to hold that in view of a proceeding pending before Civil Court, Criminal court had no jurisdiction to decide the issue in question, rightly documents which were placed on behalf of the accused during enquiry on which reliance was shown by the Magistrate, was impermissible. It is urged with all stress that the dispute pending between the landlord and tenant cannot be determined in this proceeding.

The learned Magistrate has based his finding also on several premises, as it came to his notice that the statement of the witnesses suffered not only contradiction but even material witness namely Bishwanath Singh was withheld, who was not examined during enquiry. Though documents filed on behalf of the accused have been referred to in the order of the learned Magistrate and true it is that during enquiry the learned Magistrate was not required to be obsessed with those documents, finding was recorded on other ground also. I find that even taking the prosecution case to be true on its face value, as it transpires from the petition of complaint no offence either for fabricating document or conspiration hatched by the accused has been made out.

Regard being had to the nature of issue which can be well thrashed in a civil proceeding and for which parties have already taken recourse to, I am of the view that the continuance of the instant proceeding would be an abuse of process of court. The Revision is allowed and the order of the learned Magistrate is accordingly restored.