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Judgment
Heard learned counsel appearing on behalf of the petitioners and learned APP for the State
The present petition has been preferred on behalf of the petitioners for quashing the entire criminal proceeding in Complaint Case No.2369 of 2014 including the order taking cognizance dated 19.03.2016 passed by learned A.C.J.M.-IX, Bhagalpur, whereby the learned Jurisdictional Magistrate has taken cognizance for the offence punishable under Section 417 of the Indian Penal Code (in short ‘IPC’) against the petitioners.
The allegation in the complaint, in substance, is that the complainant had purchased a piece of land from late Bala Prasad Dalan in the year 1963 and a ten feet wide passage was shown as a common passage. It is alleged that subsequently the petitioners claimed the said passage as their own and executed a registered sale deed dated 28.11.2012 in favour of another person, which according to the complainant amounts to cheating.
It appears from the record that, in respect of the same property and the alleged right over the passage, the complainant had already instituted Title Suit No. 261 of 2013 before the competent civil court. The allegations raised in the said suit substantially relate to the same transaction and dispute which forms the basis of the present complaint. The said title suit has subsequently been dismissed by judgment dated 03.02.2021, which has been brought on record by way of supplementary affidavit.
Learned APP while opposing the prayer of quashing submits that merely because a civil dispute is also involved, the criminal proceeding cannot be quashed, as civil and criminal proceedings may proceed simultaneously. It is further submitted that the order taking cognizance was passed after enquiry and examination of witnesses and, therefore, it cannot be termed as a mechanical order.
Despite valid service of notice, O.P. No.2 has not joined the court proceedings.
There can be no dispute with the proposition that pendency or decision of a civil proceeding by itself is not a ground to quash a criminal proceeding, if the allegations otherwise disclose the commission of a criminal offence. However, in the present case, the dispute essentially relates to the right over the passage, title to the property and the effect of the subsequent sale deed.
On a consideration of the allegations made in the complaint, this Court finds that no specific allegation of deception or dishonest inducement has been made against the petitioners so as to constitute the offence under Section 417 of the IPC. The grievance of the complainant essentially arises out of the alleged wrongful assertion of right over the passage and the subsequent sale transaction, which are matters falling within the domain of civil adjudication.
Reliance has been placed on the judgement of the Hon’ble Supreme Court in Rikhab Birani v. State of Uttar Pradesh, reported in 2025 SCC Online SC 823, where it has been reiterated that the criminal process cannot be permitted to be used for giving a criminal colour to a dispute which is essentially civil in nature, particularly when the necessary ingredients of the alleged criminal offence are not disclosed.
In the facts of the present case, this Court is of the considered view that the dispute between the parties is essentially civil in nature and the criminal proceeding appears to have been initiated by giving a cloak of criminality to the said civil dispute. Permitting such proceeding to continue, in the absence of the basic ingredients of the offence under Section 417 of the IPC, would amount to an abuse of the process of the Court.
Accordingly, the impugned order taking cognizance dated 19.03.2016 passed by learned A.C.J.M.-IX, Bhagalpur in Complaint Case No.2369 of 2014 with all its consequential proceedings emanating therefrom, is, hereby quashed/set aside qua the above-named petitioners.
The application stands allowed.
Let a copy of this judgment be communicated to the learned trial court forthwith.