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Judgment
Sanjay Kumar Dwivedi, J
Heard Mr. P.S. Dayal, learned counsel appearing for the petitioner, Mr. Md. Asghar, learned counsel appearing for the State and Mr. B.M. Tripathi, learned senior counsel appearing for respondent no.2.
This petition has been filed for quashing of the order dated 20.03.2023 passed by the learned Chief Judicial Magistrate, Dhanbad in connection with Saraidhela P.S. Case No.227 of 2021, whereby, warrant of arrest has been directed to be issued against the petitioner, pending in the Court of the learned Chief Judicial Magistrate, Dhanbad.
Respondent no.2 has instituted the said FIR alleging therein that he had purchased land at Mouza Amagha @ Sugiyadih, Mouza No.09, New Khata No.31, Old Khata No.25, New Plot No.48, Old Plot No.46, Area 13.46 Katha i.e. 22.46 decimal after payment of Rs.1,56,10,000/- through bank on the basis of registered sale deed no.625/653 dated 05.02.2021 from Dr. Rajarshi Bhushan who had got General Power of Attorney No. IV-360 dated 28.10.2020 from Dhiraj Kumar Singh. The informant has given details with regard to payment made to Dr. Rajarshi Bhushan through Bank transaction. It has been further alleged that after purchase of land when Dr. Rajarshi Bhushan was asked for giving possession, he deferred the matter on various pretext. It has also been alleged that on verification the informant came to know that documents of land was prepared in the name of a dead person shown him to be alive and the land has been registered on the basis of forged papers and a sum of Rs.1,56,10,000/- has been cheated from him, moreover, possession of land has also not been given to him. Whenever the informant requested Dr. Rajarshi Bhushan to refund the money, he deferred the matter on various ground and lastly threatened to implicate him in false case, if he again comes to him.
Mr. Dayal, learned counsel appearing for the petitioner submits that the petitioner has earlier moved before this Court in Cr.M.P. No. 210 of 2022, which was dismissed as withdrawn vide order dated 03.02.2023. He submits that after withdrawal of the said Cr.M.P., respondent no.2 who is informant, has filed a petition before the learned Court on 17.03.2023 praying for issuance of warrant against the petitioner and pursuant to that, the impugned order dated 20.03.2023 has been passed by the learned Court. He further submits that without following the procedure laid down under Section 73 Cr.P.C., the said order has been passed only on the petition filed by the informant for issuance of warrant against the petitioner. He also submits that the case is being investigated by the police and on the petition of the informant, the impugned order has been passed by the learned Court. On these grounds, he submits that the impugned order is bad in law.
Mr. Tripathi, learned senior counsel appearing for respondent no.2 submits that respondent no.2 is the victim in view of Section 2(wa) of Cr.P.C., which defines the victim. He further submits that the said petition was rightly filed by respondent no.2 and copy of the same was served through the State counsel and in view of that, there is no illegality in the impugned order.
Mr. Asghar, learned counsel for the State submits that the learned Court, looking into the prayer made by the informant, has passed the impugned order.
In view of the above facts, it appears that the petition was filed by the informant for issuance of warrant against the petitioner saying that earlier Cr.M.P. No.210 of 2022, filed by the petitioner has been dismissed as withdrawn vide order dated 03.02.2023 and pursuant to that, the learned Court has passed the impugned order and directed for issuance of warrant of arrest against the petitioner. Even if the said Cr.M.P. was dismissed as withdrawn, the procedure prescribed in the Cr.P.C. is required to be followed. Moreover, the case is being investigated by the police, whereas, on the petition of the informant, the impugned order has been passed by the learned Court. The police has not approached the learned Court for such order and for that Section 73 Cr.P.C. is required to be followed. A reference in this regard may be made to the judgment passed by the Hon'ble Supreme Court in the case of Inder Mohan Goswami and another v. State of Uttaranchal and others, reported in (2007) 12 SCC 1.
In view of the above, the impugned order dated 20.03.2023 passed by the learned Chief Judicial Magistrate, Dhanbad in connection with Saraidhela P.S. Case No.227 of 2021, pending in the Court of the learned Chief Judicial Magistrate, Dhanbad is set aside. The matter is remitted back to the learned Court to proceed afresh, in accordance with law.
Accordingly, this petition is disposed of.
Interim order, if any granted by this Court, stands vacated.