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Judgment
Heard Mr. S. Nawaz, learned counsel for the petitioners. Also heard Mr. D.P. Goswami, learned Addl. Public Prosecutor, Assam appearing for the State respondent No.1 and Mr. T.A. Laskar, the learned counsel appearing for the respondent No.2.
This petition under Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023 is filed by the petitioners, praying for quashing of the entire criminal proceeding drawn under Sections 447/294/323/506/34 of the Indian Penal Code, being C.R. Case No. 819/2023, pending in the Court of learned Judicial Magistrate First Class, Hojai, Sankardev Nagar including the impugned order dated 22.02.2024, whereby the petitioners were summoned to stand trial for the offences as mentioned above and all other consequential orders passed therein.
The brief facts of the case leading to filing of the present criminal petition may be narrated as follows:-
The petitioners are the cousins of the respondent No. 2 and both parties are involved in a civil dispute over inheritance of a plot of land measuring 4 bighas covered by Dag No. 403, P.P. No. 34, situated at Bheluguri Pather Kissamat under Jamunamukh Mouza in the District of Hojai, Assam. Originally the disputed plot of land belonged to one Kartik Satnami @ Kartik Ram Satnami who sold the land to one Makaddas Ali, who, in turn, sold the land to the paternal aunt of the petitioners i.e., Khairun Nessa. The husband of Khairun Nessa namely, Siddek Ali predeceased her and they were issueless. Said Siddek Ali had another wife, namely, Fatima Khatoon who is the mother of the respondent No. 2. After the death of Khairun Nessa in the year 2006, the property in question devolved upon her four siblings, namely, Intaj Ali (father of the petitioners), Alkas Ali, Hayatun Nessa and Joynab Bibi but Alkas Ali, Hayatun Nessa and Joynab Bibi orally gave up their rights in respect of the said landed property in favour of Intaj Ali, the father of the present petitioners. Thereafter, Intaj Ali died in the year 2007 and the property in question devolved upon his children i.e. the petitioners and their siblings. The petitioners continued to possess and cultivate the land in question till 2016. In January, 2016, the respondent No. 2 and his sister, Joygun Nessa requested the petitioner Nos. 2, 3, 4 & 7 to allow them to cultivate the land on condition that they will give half of the produce to the petitioners in the month of January of each year. On such conditions, the petitioner Nos. 2, 3, 4 & 7 consented to their request and accordingly, the respondent No. 2 and his sister continued to share half the produce with the petitioners till 2020 but thereafter stopped doing so. Eventually, when the petitioners requested them to vacate the land, the respondent No. 2 and his sister refused to do so. The petitioners and the respondent No. 2 held multiple meetings in order to resolve their land dispute but without any result.
ii) Finding no alternative, the petitioners along with their other siblings and their legal heirs filed the T.S. No. 173/2023, before the learned Civil Judge (Jr. Div.), Hojai at Sankardev Nagar seeking declaration of right, title and interest over the property in question and also for recovery of possession, permanent injunction and precept. Accordingly, the learned Civil Judge (Jr. Div.), Hojai was pleased to issue notice to the respondent No. 2 and his sister, Joygun Nessa and both of them have filed written statement therein.
iii) In the meantime, it has come to the notice of the petitioners that even before they had filed the T.S. No. 173/2023, the respondent No. 2 and his sister, Joygun Nessa had already filed a criminal complaint against them and in the said complaint, alleging that the legal heirs of his deceased grandfather, Amir Ali had inherited his property covered by Dag No. 304, P.P. No. 204 situated at Bheluguri Pather Kissamat under Jamunamukh Mauza. However, the petitioner No. 1 Moimun Nessa got the land mutated in her name projecting herself as an heir of Late Amir Ali. Thereafter, the petitioners occupied 1 bigha 2 katha and 5 lessa of land covered by Dag No. 304 situated at Bheluguri Kissamat which was inherited by the mother of the respondent No. 2, Khairun Nessa from her father Amir Ali. A meeting was called in this regard and though Khairun Nessa (since deceased) had asked the petitioners to return the land to the respondent No. 2, they did not do so. In this regard, the respondent No. 2 has approached the Daboka Circle Office seeking cancellation of the petitioners' mutation. However, on 24.10.2023 at around 10:00 a.m., the petitioners went to the house of respondent No. 2 and when the respondent No. 2 came out of the house, at first the petitioners abused him and thereafter, the petitioner Nos. 1 & 2 shoved the respondent No. 2 to the ground. When the respondent No. 2 raised hue and cry, the neighbouring people arrived at the place of occurrence and the family members with the help of the neighbours rescued the respondent No. 2 from the petitioners. In the incident, the respondent No. 2 sustained injuries on his arms and legs. The petitioners also threatened the respondent No. 2 that if he tried to cancel the mutation of the petitioner No. 1, they will drag him and after breaking his arms and legs, they will throw him in the Kapili River.
iv) After the alleged incident, the respondents No.2 filed a complaint which was registered as the C.R. Case No. 819/2023, under Sections 447/294/323/506/34 of the Indian Penal Code. Following the registration of the complaint case, the initial deposition of the respondent No. 2 was recorded under Section 200 of the CrPC and the statement of inquiry witness, namely, Giyas Uddin was examined under Section 202 of the CrPC and after considering the complaint and the statements of the witnesses, the learned Judicial Magistrate First Class, Hojai vide order dated 22.02.2024, held that there were sufficient grounds for proceeding against the petitioners under Sections 447/294/323/506/34 of the Indian Penal Code and issued summons to them.
Being aggrieved and dissatisfied with the drawing up of the proceeding against the present petitioners in the instant case i.e. C.R. Case No. 819/2023, the petitioners have preferred the instant petition, against the order dated 22.02.2024 and all other consequential order, subsequent to drawing the criminal proceeding against the present petitioners, the present criminal petition is filled with the prayer for quashing of the entire criminal proceeding drawn under Sections 447/294/323/506/34 of the Indian Penal Code, being C.R. Case No. 819/2023, pending in the Court of learned Judicial Magistrate First Class, Hojai, Sankardev Nagar and the case is at the stage of appearance of the accused (present petitioners).
It is contended by Mr. S. Nawaz, the learned counsel for the petitioners that the petitioners are innocent of the alleged offences and the complaint was maliciously lodged by the respondent No. 2 for wreaking vengeance on the petitioners on account of the land dispute between the parties and with an ulterior motive of acquiring an upper hand therein. It is further submitted by the learned counsel for the petitioners that the case of the respondent No. 2 qua the petitioners is baseless and mala fide and the same has been instituted by suppressing certain material facts and misrepresenting others. It is further submitted that the dispute between the parties is purely civil in nature and no offence has been committed by any of the petitioners. In this regard, already a civil suit vide T.S. No. 173/2023 is filed and the respondent No. 2 himself has admitted that he has approached the Circle Office to get the mutation in the name of the petitioner No. 1 to be cancelled.
Mr. Nawaz, the learned counsel for the petitioners further submitted that the allegations made in the complaint against the petitioners is lodged on the basis of the statements of the respondent No. 2 and his witness, makes it apparent that none of the offences under Sections 447/294/323/506/34 of the IPC are made out against the petitioners and submitted that the entire dispute is civil in nature but the respondent No.2 tried to maliciously tried to give it a criminal colour. Furthermore, the learned Judicial Magistrate First Class at Hojai, Sankardev Nagar, also failed to appreciate the settled law that criminal proceedings are not a short cut of other remedies available in law and the learned Magistrate failed to exercise appropriate caution and mechanically issued summons to the petitioners without appreciating the fact that the whole proceeding was clearly a motivated one and the proceeding is maliciously instituted with an ulterior motive and submitted that there does not exist any justifiable ground to allow the continuance of the proceedings in C.R. Case No. 819/2023 and seeks quashing of the criminal proceedings against them in C.R. Case No. 819/2023 under Sections 447/294/323/506/34 of the I.P.C. pending in the Court of the learned Judicial Magistrate First Class, Hojai, Sankardev Nagar.
Mr. Nawaz, the learned counsel for the petitioners further submitted that from the complaint case itself, it reveals that it is purely a civil dispute i.e. land dispute between the petitioners and the respondent No.2 who are related to each other and the mutation of the disputed land is still in the name of the petitioners and claiming right, title and interest over the disputed land, the petitioners have already instituted a title suit which is still pending and the respondent No.2 also appeared in the said title suit and contested the same. The respondent No.2 also prayed to get the mutation cancelled which is in the name of the petitioners but till date, the mutation is still in the name of the petitioners and not yet cancelled. Rather, a civil suit is pending between the parties.
The learned counsel for the petitioners further submitted that basically the cognizance of the complaint case is taken under Sections 447/294/323/506/34 of the I.P.C. but the possession of the land is still disputed and both the parties are claiming their possession over the disputed land and hence, prima facie it cannot be held that there is any criminal trespass into the land of the respondent No.2. Further, there is no mention of any obscene language used by the petitioner and except the verbal abuse, there is no clarification as to how the petitioners abused the respondent No.2 with slang language to attract the case under Section 294 of the I.P.C. Moreso, Mr. Nawaz, the learned counsel for the petitioners submitted that a case under Section 447 of the I.P.C. cannot also come together. There is also no evidence or statement of threatening on the part of the present petitioners nor there is any specific mention as to whether the victim sustained any injury or any hurt to take cognizance under Section 323 of the I.P.C. It is completely a case of civil nature where both the parties are disputing over landed property and the civil suit is still pending between the parties. But only to harass the present petitioners, a criminal case is instituted by the respondents by giving criminal colour to a civil dispute. Accordingly, Mr. Nawaz, the learned counsel for the petitioners submitted that it is a fit case wherein by invoking the power under Section 528 of the BNSS, 2023, the entire criminal proceeding including the order of taking cognizance are liable to be set aside and quashed.
In support of his submission Mr. Nawaz, the learned counsel for the petitioners relied upon the following decisions:
State of Haryana and others vs. Ch. Bhajan Lal and others reported in 1992 Supp (1) SCC 335;
Anukul Singh vs. State of Uttar Pradesh and another reported in 2025 SCC OnLine SC 2060; and
Sujoy Ghosh vs. State of Jharkhand and another reported in 2026 SCC OnLine SC 454.
In para 105 of the Ch. Bhajan Lal and others (Supra), the Hon’ble Apex Court has held that:-
“105.In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the series of decisions relating to the exercise of the extra-ordinary power under Article 226 or the inherent powers Under Section 482 of the Code which we have extracted and reproduced principles of law enunciated by this Court in a series above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any Court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised.
1.Where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima-facie constitute any offence or make out a case against the accused.
2.Where the allegations in the First Information Report and other materials, if any, accompanying the F.I.R. do not disclose a cognizable offence, justifying an investigation by police officers Under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.
3.Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.
4.Where, the allegations in the F.I.R. do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated Under Section 155/2) of the Code.
5.Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.
6.Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.
7.Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously Instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge”.
In the case of Anukul Singh (Supra), the Hon’ble Apex Court in para 11, 11.1 & 11.2 has held that:-
“11.Before adverting to the facts of the present case, it is necessary to recapitulate the settled legal principles governing the exercise of inherent powers under Section 482 Cr.P.C. It is well established that though the High Court possesses wide and plenary inherent jurisdiction, such power is not unbridled or unlimited, but circumscribed by self-imposed restraints evolved through judicial pronouncements.
11.1.This Court in State of Haryana v. Bhajan Lal10, at paragraph 102, laid down illustrative categories where quashing of proceedings is justified. These are:
“(1)Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused. (2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code. (3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.
(4)Where the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.
(5)Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.
(6)Where there is an express legal bar engrafted in any of the provisions of the Code or the Act concerned (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or, where there is a specific provision in the Code or the Act concerned, providing efficacious redress for the grievance of the aggrieved party.
(7)Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.”
The categories in Bhajan Lal are illustrative and not exhaustive, but they provide guiding principles to balance two competing considerations – (a) preventing abuse of process of law, and (b) ensuring that criminal proceedings are not stifled at the threshold on disputed questions of fact.
11.2.Equally, this Court has consistently cautioned that the High Court, while exercising jurisdiction under Section 482 Cr.P.C., cannot embark upon a “mini-trial” or weigh the sufficiency of evidence, which falls within the domain of the trial Court. The scope of enquiry is confined to whether, on a plain reading of the FIR / complaint and accompanying material, the ingredients of the alleged offence are disclosed. [See: Rajiv Thapar v. Madal Lal Kapoor 11, HMT Watches v. Abida12, and Rathish Babu Unnikrishnan v. the State (Govt. of NCT of Delhi) and others13]."
In the case of Sujoy Ghosh (Supra), the Hon’ble Apex Court in para 13 has held as under:-
“13.The principles governing summoning of an accused in a criminal case as well as parameters for quashing criminal proceedings are well-settled. Summoning of an accused in a criminal case is a serious matter and criminal law cannot be set into motion as a matter of course. It is not that the complainant has to bring only two witnesses to support his allegations in the complaint to have the criminal law set into motion. The order of the Magistrate summoning the accused must reflect application of mind to the facts of the case and the law applicable thereto. The Magistrate must carefully scrutinise the evidence brought on record and determine whether any offence is prima facie made out. The Magistrate may even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations or otherwise, and then examine if any offence is prima facie committed by all or any of the accused”.
Mr. T.A. Laskar, the learned counsel appearing for the respondent No.2 submitted that it is not a case that a civil dispute has been given the criminal colour, rather at the time of filling the complaint, no civil suit was pending before any Court. The civil suit is instituted only after the filing of the complaint case. He further submitted that it is a fact that there is a land dispute between the parties but in that context only, the petitioners had trespassed into their land, threatened them, abused them and also assaulted the victim, for which the criminal case had to be instituted by the respondent No. 2. He further submitted that filing of a petition for cancellation of mutation cannot be termed as a civil suit and they had approached the appropriate forum for cancellation of the mutation, which is in the name of the petitioners. Mr. Laskar further submitted that from the statement of the CW.2, it reveals that the accused petitioners had kicked the victim and caused hurt to him for which the criminal case had to be instituted. He further submitted that a civil dispute/civil suit may be pending between the parties but that cannot be the sole ground for quashing the criminal proceeding, wherein there is sufficient ingredients to take cognizance against the petitioners. Accordingly, Mr. Laskar, the learned counsel for the respondent No.2 submitted that it is not at all a fit case to quash the criminal proceeding, pending against the petitioners only on the ground that a civil dispute/title suit is pending between the parties. Mr. Laskar accordingly prayed for dismissal of the present criminal petition.
In reply to the above submission made by Mr. Laskar, the learned counsel for the respondent No.2, it is submitted by Mr. Nawaz, the learned counsel for the petitioners that the Civil Suit was filed on 22.11.2023 and the cognizance of the criminal case was taken only on 22.02.2024. So at the time of receiving the summons or at the time of taking cognizance of the criminal case, the civil suit was already pending between the parties and the existence of the civil dispute was never disputed even at the time of filing of the complaint case. Furthermore, the mutation over the disputed land is still in the name of the petitioners and accordingly, Mr. Nawaz submitted the criminal proceeding is liable to be set aside and quashed.
Hearing the submissions made by the learned counsel for both sides, it is seen that the criminal proceeding is instituted by the respondent No.2 with the allegation that the petitioners along with some others had criminally trespassed into their land, abused them with filthy language and assaulted one of the victim causing physical hurt to him. But it is an admitted fact that the dispute is basically a land dispute between the parties who are related to each other and claiming their right over the disputed land, the petitioners side also filed a civil suit which is still pending for disposal. In the same time, it also cannot be denied that a mutation case has been filed by the respondent side for cancellation of mutation in the name of the petitioners but till date, the mutation is still in the name of the petitioners’ side.
It is rightly submitted by the learned counsel for the petitioners that though the allegation of criminal trespass has been brought against the petitioners but the possession as well as right over the disputed land is still uncertain and both the parties have claimed their right over the disputed land and hence, the criminal trespass also prima facie does not disclose in the complaint petition. But submission has been made by the learned counsel for the respondent No.2 that they had instituted the complaint case prior to institution of the civil suit and after institution of the criminal complaint only, the Civil Suit was instituted by the petitioners.
From the submissions of learned counsel for the parties as well as the record itself, it is seen that cognizance of the criminal complaint was taken by the learned Trial Court below only in the year 2024, i.e. after institution of the civil suit. Though some allegations of criminal trespass and causing hurt to one of the victim is brought in the complaint case, but the basic dispute between the parties is the land/ property dispute. More so, institution of mutation case for cancellation of mutation in the name of the petitioners also reveals the fact that a civil dispute was going to between the parties even prior to institution of the complaint case. The respondents’ side also might have approached the Criminal Court only to get a quick order or settlement and thus the civil dispute has been given a criminal colour. From the entire statement made in the complaint case as well as considering the submission made by the learned counsel for both sides, it is seen that there is admittedly a civil dispute between the parties and prior to the institution of the criminal case, the respondent side also moved an application for cancellation of the mutation in the name of the petitioners.
The Hon’ble Apex Court in the case of Mitesh Kumar J. Sha v. State of Karnataka and Others reported in AIR 2021 SC 5298 had observed in para 42 & 45 of the judgment which reads as under:-
"42.It was also observed:-
"13.While on this issue, it is necessary to take notice of a growing tendency in business circles to convert purely civil disputes into criminal cases. This is obviously on account of a prevalent impression that civil law remedies are time consuming and do not adequately protect the interests of lenders/creditors....There is also an impression that if a person could somehow be entangled in a criminal prosecution, there is a likelihood of imminent settlement. Any effort to settle civil disputes and claims, which do not involve any criminal offence, by applying pressure though criminal prosecution should be deprecated and discouraged.
45.Applying this dictum to the instant factual matrix, it can be safely concluded that the present case clearly falls within the ambit of first, third and fifth category of the seven categories enlisted in the above said judgment. The case therefore warrants intervention by this Court, and the High Court has erred in dismissing the petition filed by the Appellants under section 482 CrPC. We find that there has been attempt to stretch the contours of a civil dispute and thereby essentially impart a criminal color to it."
However, it also cannot deny that even in the civil/commercial dispute, there may be some ingredients of criminal offence to proceed with the same. But here in the instant case, it is seen that the dispute between the parties is exclusively a civil dispute and claiming their right over the property, they have already instituted a civil suit which is also contested by the respondent, claiming their right over the disputed land.
So considering all these aspects of the case and the view of the Apex Court vis-a-vis the prima facie materials, this Court is of the opinion that this is exclusively a civil suit which has been given a criminal colour and accordingly, this Court is of the view that further proceeding of the said complaint/criminal case will be the abuse of the process of the Court.
Considering the detail discussions made above, this Court is of the view that this is a fit case wherein the criminal proceeding pending against the petitioners in C.R. Case No. 819/2023 including the impugned order dated 22.02.2024, is liable to be set aside and quashed.
Accordingly, the impugned criminal proceeding pending against the petitioners in C.R. Case No. 819/2023, in the Court of learned Judicial Magistrate First Class, Hojai, Sankardev Nagar including the impugned order dated 22.02.2024 is hereby set aside and quashed.
Criminal Petition accordingly stands allowed and disposed of.