Bhola Prasad Sah And Ors vs State Of Jharkhand And Ors

Heard Mr. Anil Kumar Jha, counsel appearing on behalf of the petitioners in both the cases.

Heard Mr. Gauri Shankar Prasad, A.P.P. and Mr. Nehru Mahto, A.P.P. appearing on behalf of State.

As both the cases arise out of same case, they have been tagged and are being taken up together.

This petition has been filed for quashing the order dated 20.12.2011 passed by learned Chief Judicial Magistrate, Deoghar in P.C.R. Case No. 498

of 2010 whereby cognizance has been taken under Section 380 and 427 of the Indian Penal Code against the six accused persons including the

petitioners of the present cases said to be pending in the court of learned Chief Judicial Magistrate , Deoghar.

Counsel for the petitioners in both the cases while advancing his argument has submitted that the instant case is apparently a case of malicious

prosecution and is fit to be quashed in view of the law laid down by the Hon’ble Supreme Court in the case of State of Haryana and Others vs.

Ch. Bhajanlal and others reported in AIR 1992 SC 604M.

Counsel for the petitioners further submits that the complainant of the case has filed a suit for declaration of right, title and interest and also for

possession of the property involved in this case and that apparently shows that the complainant was not in possession of the property and accordingly

there was no question of theft being committed in the house involved in this case which is situated on the property as admittedly the complainant was

not in possession of the said house. Accordingly, he submits that no case, much less any prima-facie case, is made out against the petitioners.

Counsel for the petitioners further submits that the property was initially in the name of Ful Kumari which was succeeded by Champa Devi and the

property was subject matter of auction sale in favour of Babu Damodar Shastry. However, the auction sale was ultimately set aside. He submits that

the complainant is claiming to be in possession of the property through Babu Damodar Shastry. The complainant has inter alia alleged that the accused

persons forcibly entered the house and looted away certain valuable properties.

Counsel appearing on behalf of the opposite party-state submits that specific allegation has been levelled against the petitioners at paragraph no. 8

of the complaint petition with regards to the incident on 30.06.2010. So far as suit is concerned, in the title suit itself cause of action has been shown to

be on 30.06.2010 and accordingly the contention of the petitioners that the complainant was not in possession of the property on the basis of reliefs

prayed for in the title suit is wholly misconceived . However, counsel for the opposite party submits that the allegation made in the complaint petition

makes out a prima-facie case against the petitioners and cognizance has been rightly taken and at this stage, the proceeding may not be quashed.

After hearing counsel for the parties and after considering the materials available on record, this court finds that specific allegations have been

made in the complaint petition and cognizance has been rightly taken. The fact as to who was in possession of the property involved in this case is a

matter of evidence which cannot be appreciated at this stage. Accordingly, these two criminal miscellaneous petitions are hereby dismissed.

Interim order, passed in this case, stands vacated.

Pending I.A. if any, stands dismissed as not pressed.

It is made clear that any observation made in this order will not prejudice the case of either of the parties.

Let this order be communicated to the learned court below through FAX.