Moin Anwar And Others vs State Of Jharkhand And Another

Sanjay Kumar Dwivedi, J

Heard learned counsel for the petitioners, learned counsel for the respondent State and the learned counsel appearing on behalf of the O.P.No.2.

Mr. Nilesh Kumar, the learned counsel for the petitioners submits that I.A. No.9310 of 2023 has been filed for amendment in the prayer portion of the Cr.M.P. He submits that the learned court has taken cognizance on 04.07.2016 and in view of that, the said I.A. has been filed. The said I.A is being opposed by the learned counsel appearing on behalf of the respondent State as well as the O.P.No.2 on the ground that belatedly the said I.A. has been filed.

Considering pendency of the present petition and to avoid multiplicity of litigation, the prayer made in the I.A. is allowed. Let this I.A. be treated as part of the Cr.M.P.

In view of the above, the order taking cognizance dated 04.7.2016 including the entire criminal proceeding arising out of Gumla P.S.Case No.57 of 2013, G.R. No.126 of 2013, pending in the court of learned Chief Judicial Magistrate, Gumla, are under challenge.

Mr. Nilesh Kumar, the learned counsel appearing on behalf of the petitioners submits that it is the case of the informant that the mother of the informant has executed the sale deed in favour of these petitioners and wrong photograph of the vendor has been affixed on the sale deed and after two days it has been realized that the wrong photograph has been affixed by the vendor an attempt was made by rectifying it but he did not materialize and therefore a fresh sale deed was executed after two days by the mother of the informant in favour of these petitioners wherein the informant himself was the identifier. After two years the case was lodged on the allegation that the deed of cancellation of the first sale deed was to be executed but in place of it, a fresh sale deed has been executed and thereby the petitioners and other accused persons committed offence of forgery as well as cheating but this assertion in view of the fact that the informant himself was the identifier cannot be accepted. Moreover, the petitioners cannot be said to have committed any offence either of cheating or of criminal breach of trust. He submits that if any case is made out is of civil in nature. He further submits that order taking cognizance is not in accordance with law.

The learned counsel appearing for the O.P.No.2 submits that the case is made out and the learned court has rightly taken cognizance.

Mr. Pandey, the learned counsel for the respondent State submits that there is disputed question of facts and this Court may not interfere at this stage.

The Court has looked into the order taking cognizance dated 04.07.2016 and finds that the word ‘cognizance’ is put therein in a blank space which suggest that there is non-application of judicial mind.

The order taking cognizance dated 04.07.2016 in connection with Gumla P.S. Case No.57 of 2013 (G.R. No.126 of 2013), pending in the court of learned Chief Judicial Magistrate, Gumla is set aside.

The matter is remitted back to the learned court concerned to pass a fresh order in accordance with law.

Cr.M.P. No.2398 of 2013 stands disposed of. Pending petition, if any, also stands disposed of.