Swami Satyanandji Maharaj vs The State of Bihar

Rakesh Kumar, J.—In the present petition, filed under Section 482 of the Code of Criminal Procedure, two petitioners have prayed for quashing of an order dated 18.1.2010 passed by learned Chief Judicial Magistrate (hereinafter referred to as "C.J.M."), Kaimur at Bhabhua, in Complaint Case No. 1298 of 2008. By the said order learned C.J.M. has taken cognizance of offences under Sections 323, 504/ 34 of the Indian Penal Code and directed for summoning the petitioners. Short fact of the case is that the complainant/opposite party No. 2 filed a complaint which was numbered as Complaint Case No. 1298 of 2008 in the Court of learned Chief Judicial Magistrate, Kaimur at Bhabhua, arraying three persons as accused, which include these two petitioners. The complainant had disclosed in the complaint petition the following facts:--

I. That Plot Nos. 302 & 303 is complainant''s ancestral property and that Survey Khatiyani has till date maintained in the name of the complainant''s father, upon which the complainant enjoys peaceful possession.

II. That in connection with the mutation of the said land an application was filed by one so-called Shivdharmanand Ji, which was allowed vide Mutation Case No. 185/97-98 vide order dated 27.9.1997 passed by the Circle Officer in favour of Shivdharmanand Ji.

III. That against the said order of mutation, the complainant filed an appeal Vide Mutation Appeal No. 24/1997-98 before the D.C.L.R., Bhabhua. The D.C.L.R., Bhabhua quashed the order of the Circle Officer and passed orders in favour of the complainant. Against the appellate order one Ravindra Prasad Singh preferred a revision before the Collector, Kaimur vide Mutation Revision No. 21/1999-2000, which was then allowed vide order dated 27.4.2002 in favour of the revisionist Ravindra Prasad Singh.

IV. That the complainant thereafter preferred a writ application vide C.W.J.C. No. 10720/2002 (Kripa Narain Singh v. The State of Bihar & Ors.) before the Hon''ble Patna High Court against the order passed in the Mutation Revision Case No. 21/1999-2000. The Hon''ble Patna High Court after hearing vide order dated 19.3.07 allowed the writ application filed by the complainant and set aside the order dated 27.4.2002 passed by Collector, Kaimur and remitted the matter again to Anchal Adhikari, Kaimur.

V. That in terms of the aforesaid order of the Hon''ble High Court, the complainant filed a Miscellaneous Case No. 1/2007-08 before the Circle Officer, Chainpur showing that in the Hal Survey Khatiyan entries were continuing in the name of complainant''s father and aunt Sana Kuer. Vide order dated 26.9.2007 the Circle Officer passed an order observing that the concerned party ought to file an appeal before the competent Court.

VI. That against the above order, Satyanand filed an appeal being Mutation Appeal No. 22/2007-08 Satyanand v. Kripa Narain Singh & Others before the D.C.L.R., Bhabhua who after hearing the parties came to a finding that no documents or legal proof existed in support of any gift of land made by the family members of the complainant in favour of Accused Nos. 1 & 2 or any other persons connected to them. Hence, the claim of Accused Nos. 1 & 2 or people connected to them that the land had been received in gift from complainant''s family is wrong and no evidence was available to support the claim of Shivdharmanand of being an heir of Atmavivekanand in whose favour the gift was allegedly made. The D.C.L.R. on the basis of order of the Apex Court Shri Krishna Singh Vs. Mathura Ahir and Others, did not accept that Shivdharmanand Ji was heir of Atmavivekanand Ji. The D.C.L.R. held that complainant was in possession of the land in issue and that the land was a rayati land which has never been sold by complainant for which there was proof. The D.C.L.R. held that Anchal Adhikari had not satisfactorily discharged his function and setting aside the order of Anchal Adhikari dated 28.6.2008 remanded the matter. Thereafter no further proceeding was initiated by Accused Nos. 1 & 2 nor any order was passed by Accused No. 3.

VII. That a consolidation case being Case No. 1/83-84 (Shivdharmanand v. Shyam Lal Chauhan) was filed before the Consolidation Officer, Chainpur, which concerned with Plot Nos. 304, 305, 306. The said Shivdharmanand had died in the year 1949 as would be apparent from the list submitted before the Hon''ble Apex Court of Sant Mat Bheshi Sanyasi Math Garhwaghat. Similarly a Case No. 2/83-84 was also filed before the Consolidation Officer, Chainpur (Shivdharmanand v. Kripa Narain Singh), however no orders were passed in Case No. 2/83-84 till 22.2.1993 whereas in Case No. 1/83-84 an order was passed on 22.2.1993 itself with which the complainant had no concern. Since Shyam Lal Chouhan was the Opposite Party in Case No. 1/83-84, he preferred an appeal before Assistant Director, Consolidation, Rohtas being Appeal Case No. 92/93-94. The Assistant Director, Consolidation set aside the order of the Consolidation Officer and directed for maintaining the name of the Raiyats in the Survey Khatiyan and allowed the appeal.

VIII. That against the order dated 4.9.1997 passed in appeal by the Assistant Director, Consolidation, Rohtas, the said Shivdharmanand filed a Revision application being/Revision Case No. 349/2007 before the Director, Consolidation, Bihar, Patna (Shivdharmanand v. Shyam Lal Chouhan & Ors.). After hearing by order dated 30.4.07 the Director, Consolidation, Bihar, Patna dismissed the revision application and declared the right of Shyam Lal Chouhan.

IX. That the complainant filed a Misc. Case No. 1/2007-08 before the Circle Officer, Chainpur (Accused No. 3) stating therein that in light of the orders passed by the Hon''ble High Court and D.C.L.R., Bhabhua, Kaimur an order of mutation be passed in favour of complainant. Thereafter upon hearing both parties, Accused No. 3 called the complainant to his private residence on 22.9.2008 and specifically told the complainant that the property was very costly and that the opposite party was also creating a lot of pressure and since there are orders in favour of the complainant passed by the High Court and D.C.L.R., the Accused No. 3 wanted to give an order in favour of the complainant provided in lieu thereof the complainant paid Rs. 1,00,000.00 (Rupees One Lakh) as award/effort/bribe. The complainant expressed his inability to pay the amount upon which the Accused No. 3 called the complainant to meet him again the next day on 23.9.2008 after giving it careful consideration.

X. That the complainant accordingly went to Accused No. 3''s private residence situated in the Block premises on 23.9.2008 at 9:00 am along with witnesses Gopal Ji Singh, Radheshyam Singh and Ramawtar Yadav when Accused No. 3 again made a demand for money and the complainant once again expressed his inability to pay the same. In the meantime Accused Nos. 1 & 2 also reached there and started arguing with the complainant. Accused No. 3 started assaulting the complainant with fists and slaps and started abusing a lot. Accused Nos. 1 & 2 caught hold of the complainant and Accused No. 3 forcefully got signatures of complainant on 2 non-judicial stamp papers and three plain papers. Accused No. 3 also took out Rs. 1,100/- kept for expenditure from the pocket of the complainant. Accused Not 1 snatched a diary from the hand of the complainant which had important things noted. Accused No. 3 threatened the complainant that although the plot was complainant''s khatiyani land, Accused No. 3 would nonetheless pass an order in favour of Ramji Singh @ Satyanand only and complainant could see the order.

XI. That the complainant then came out of the gate of Accused No. 3 and narrated the entire incident to the eye witnesses present there. Accused No. 3 in the meantime came out of his house and started abusing in the names of mother and sister of the complainant and threatened the complainant to get out of his house or else Accused No. 3 would send them to jail by calling the police.

XII. That when the complainant obtained a certified copy of the order of Accused No. 3 on 30.9.2008 he found that Accused No. 3 had passed an order of mutation in favour of Accused No. 1 on the basis of order passed by Consolidation Officer in Case No. 1/83-84 although the accused persons were aware that the order passed in Consolidation Case No. 1/83-84 was not related to the complainant. Despite being in knowledge of all the accused persons of the fact that the order passed by Consolidation Officer in 1/83-84 had been set aside in Appeal by the Assistant Director, Consolidation vide order dated 4.9.97 in Case No. 92/93-94 which was also affirmed by the Director, Consolidation, Bihar, Patna vide order dated 30.4.2007. The Anchal Adhikari in complete disregard and disobedience of the aforesaid orders passed by superior courts, for his selfish motives passed an order in favour of Accused No. 1 which is a brazen act of contempt.

XIII. That the order passed in Case No. 1/2007-08 dated 23.9.2008 is as follows:--

"Record produced. All three parties present. Heard learned advocates of all three parties one by one. Written arguments have also been filed on behalf of the three parties. The arguments on behalf of the three parties have also concluded. For site inspection and evidence 10 a.m. on 24.9.2008. Put up the records on 24.10.2008."

Upon a bare perusal of the aforesaid order it would be apparent that the case had been fixed for site inspection on 24.9.2008 and the case had been adjourned to 24.10.2008 for orders. The site inspection was never done and one month prior to 24.10.2008, the date fixed for orders i.e. on 24.9.2008 itself without recalling the date, an order was passed in favour of the opposite party. Why and under what circumstances the above was done can only be explained by the Circle Officer, Chainpur.

XIV. That by the time the complainant could read or got read and understood the order passed by Accused No. 3, the Court closed for Dussehra vacations from 1.10.2008 on account of which the present complaint could not be prepared and filed.

XV. That the complainant claims that all accused persons with a common intention and under a conspiracy have committed fraud, forgery upon the complainant on account of which the complainant has suffered loss running into lakhs and contempt has been committed of courts and accused have gained.

XVI. That the complainant had approached the concerned police station complaining about all the facts against the accused, whereupon the Officer-in-charge assured the complainant that he would take action upon conducting a preliminary enquiry as the matter was a serious one. However, till date no F.I.R. has been registered and on the previous day the officer-in-charge refused to institute a case on the pretext that it. involved an officer on account of which the complainant had to approach the court with the present complaint."

In the complaint petition, it was alleged that accused persons had committed offences under Sections 341, 323, 506, 386, 420, 467, 468, 471 and 165 of the Indian Penal Code. After examination of complainant on solemn affirmation, and examining enquiry witnesses the learned Chief Judicial Magistrate has taken cognizance of offences under Sections 323, 504/ 34 of the Indian Penal Code, which has been assailed by the petitioners in the present proceeding. However, the learned Chief Judicial Magistrate was not satisfied in respect of other offences which were mentioned in the complaint petition.

During hearing of this petition on 7.8.2012 this court in view of the fact that litigation in between the parties was going on since long as well as the allegation of demand of illegal gratification by a public servant, who was arrayed as Accused No. 3 in the complaint petition, was of the view that such allegation was not required to be proceeded in the complaint case, but it requires investigation by a statutory investigating agency and accordingly directed the Vigilance Investigation Bureau to conduct an enquiry/investigation and submit preliminary report within a period of two months. In the meanwhile, further proceeding in Complaint Case No. 1298 of 2008 was directed to be stayed. In compliance with the order dated 7.8.2012 the Superintendent of Police, Vigilance Investigation Bureau, by its letter dated 4.2.2013 submitted preliminary enquiry report, which was conducted by Deputy Superintendent of Police-cum-Incharge of the enquiry team. The Deputy Superintendent of Police had prepared the preliminary report on 31.1.2013. It would be appropriate to incorporate the preliminary enquiry report in this order, which is quoted hereinbelow:--

"In view of the nature of allegation, the court is of the opinion that it was a fit case for investigation by statutory investigating agency. In normal course, such complaint petition was required to be referred u/s. 156(3) Cr.P.C. to the police for registration of F.I.R. and investigation, but in the present case, learned Magistrate has proceeded, treating the case as complaint proceeding. In all fareness, the nature of allegation warrants a direction for investigation of allegation made in complaint petition as well as the allegation levelled in between the parties, by initially conducting a preliminary enquiry and thereafter, if enquiry discloses commission of cognizable offences, in that event, FIR is required to be instituted and investigated properly.

The court is of the opinion that nature of allegation can well be investigation by Vigilance Investigation Bureau, Govt. of Bihar. While conducting enquiry/investigation the investigating agency may also enquire the conduct of the complaint, besides examining the role of accused person made in complaint petition."

Subsequently on 18.12.2013 an order passed by the Hon''ble Supreme Court in Special Leave to Appeal (Criminal) No. 8834 of 2012, was placed for its (Court''s) perusal and same was perused and direction was issued to list the case under appropriate heading forthwith.

On perusal of the order of the Hon''ble Supreme Court it transpired that against the order dated 7.8.2012, whereby, the Vigilance Investigation Bureau, was directed to conduct enquiry the complainant/opposite party No. 2 had preferred an appeal vide Special Leave to Appeal (Criminal) No. 8834 of 2012, which was disposed of on 9.9.2013. The order of the Hon''ble Supreme Court is as follows:--

"Heard Mr. Santosh Kumar, learned counsel in support of this petition and Mr. Nagendra Rai, learned senior counsel for the respondents.

The petitioners are aggrieved by the order passed by the High Court directing a vigilance inquiry in the Criminal Miscellaneous Petition filed by the respondents. That petition had been filed to quash the order dated 18.1.2010 passed by the Chief Judicial Magistrate, Kaimur at Bhabhua, in Complaint No. 1298/2008. Though we have not impressed by the procedure adopted by the High Court, Mr. Rai, informs that the report as sought has already been placed before the High Court. If that is so, we leave it to the discretion to the High Court to take an appropriate decision on the report. It will be open to the petitioners to point out that such a report should not be looked into. The High Court will dispose of the Criminal Miscellaneous Petition at the earliest.

The special leave petition is disposed of accordingly."

In view of the order of the Apex Court the matter was placed for hearing under the heading "For Admission" and it was heard on number of dates and finally on 24.3.2014 after hearing the parties order was reserved.

At the time of hearing Sri Rajesh Kumar Singh, learned counsel who was assisted by Sri Tribhuwan Narayan Singh, learned counsel for opposite party No. 2 at the very outset has pointed out that this court may not look into the report of the Vigilance Investigation Bureau. He submits that at the time of hearing of a petition under Section 482 of the Code of Criminal Procedure, against an order of cognizance, this court is required to confine only to the materials which were available during the enquiry before the learned Magistrate and no other materials may be looked into. To corroborate his argument, Sri Rajesh Kumar Singh, learned counsel for opposite party No. 2, has relied on State of Punjab Vs. Davinder Pal Singh Bhullar and Others etc., . He has specifically referred to paragraph Nos. 31 to 33, 35 and 40 of the said judgment. He has also relied on Bibi Gulshan Vs. The State of Bihar and Others, . In this case he has relied on paragraph No. 3 of the judgment. He has also relied on Ajay Kumar Das Vs. State of Jharkhand and Another, . He has emphasized that this court may not go beyond the records, which were available before the learned Chief Judicial Magistrate at the time of passing of order of cognizance. In sum and substance he submits that report of the Vigilance Investigation Bureau, cannot be looked into, examined or relied upon while deciding the present case. On this very issue Sri Jitendra Singh, learned senior counsel, who was assisted by Sri Kamal Kishore Singh, learned counsel for petitioners, has argued that once in the present proceeding this court after hearing both the parties by its order dated 7.8.2012 had directed the Vigilance Investigation Bureau to conduct preliminary enquiry and thereafter report has been brought on record, this court may not ignore the report of the Vigilance Investigation Bureau. He submits that ignoring or overlooking the report may amount to reviewing of the order dated 7.8.2012, which may not be done in view of bar imposed under Section 362 of the Cr.P.C. He further submits that the order dated 7.8.2012 passed by this court, whereby, vigilance enquiry was directed was already assailed by the complainant/opposite party No. 2 before the Apex Court and since the Apex Court has not interfered with the order dated 7.8.2012, this order has already attained its finality, rather this order has merged with the order of the Apex Court and as such order dated 7.8.2012 may not be ignored. In the light of order dated 7.8.2012 this court may examine the report submitted by the Vigilance Investigation Bureau. This court is of the opinion that once direction was issued by this court to Vigilance Investigation Bureau to conduct enquiry/investigation particularly in view of allegation made by the complainant in the complaint petition regarding demand of illegal gratification by one of the accused, who was public servant and thereafter once report has been submitted by the Vigilance Investigation Bureau, in normal course report of the Vigilance Investigation Bureau may not be ignored and it has to be looked into while deciding the present case.

Sri Jitendra Singh, learned senior counsel assailing the order impugned has emphatically argued that the complainant after losing his claim before the court of competent jurisdiction in the civil side has tried to give a colour of criminal case by filing the present complaint petition. He highlights that nucleus of the entire allegation in the complaint petition is the land pertaining to plot Nos. 302 and 303, which the complainant claims to be his ancestral property. Whereas, property in dispute is the property of "Ashram", which was gifted by the father of the complainant long back. Sri Jitendra Singh, learned senior counsel referring to Annexure-3 to the present petition submits that in the year 1988 itself the complainant had filed a title suit vide Title Suit No. 23 of 1988 for dispossessing one Shivdharmanand and others, who were associated with the "Ashram" from the property in dispute and for giving delivery of possession to the complainant. The said suit was dismissed. Thereafter, the complainant filed a Title Appeal vide Title Appeal Nos. 45/59 of 1992/93 and after rejection of the Title Appeal he preferred Second Appeal No. 454 of 1993, which was also dismissed on 9.1.1996. He submits that the complainant in a civil dispute, though he lost everywhere, has maliciously filed the present complaint case giving the colour of criminal offence. He highlights that on the basis of averments made in the complaint petition itself the order of cognizance is liable to be set aside as the prosecution is malicious and mala fide. Sri Singh has heavily relied on State of Haryana and others Vs. Ch. Bhajan Lal and others, . He also submits that allegation in the complaint petition is apparently absurd and inherently improbable. He submits that in the complaint petition once complainant had alleged that the accused No. 3, the then Circle Officer, Chainpur, District-Kaimur had demanded Rs. 1,00,000/- for mutating the disputed land in his favour, there was no occasion for the Circle Officer to call the petitioners at the time of discussion regarding illegal gratification. In normal course it is not possible that while demanding illegal gratification a public servant will call others to remain present at that very time. He has specifically referred to illustration No. 5 of paragraph No. 108 of the judgment of Bhajan Lal case (supra). Sri Jitendra Singh corroborating his submission that this court under Section 482 of the Code of Criminal Procedure, is competent to quash the order of cognizance or even entire proceeding on the ground of malicious prosecution or on the ground that the allegation is improbable has relied on State of Orissa Vs. Debendra Nath Padhi, ; All Cargo Movers (I) Pvt. Ltd. and Others Vs. Dhanesh Badarmal Jain and Another, . He further submits that improbability of the offence and mala fide on the part of complainant has been substantiated during enquiry by the Vigilance Investigation Bureau. Accordingly he submits that order of cognizance is liable to be set aside. In the present case petitioners have filed supplementary affidavit enclosing therewith the chart of cases. Sri Jitendra Singh, learned senior counsel referring to chart of supplementary affidavit submits that number of cases were filed either by the complainant or as per his instance against the petitioners. However, this submission was refuted by the complainant and complainant has also filed reply to the supplementary affidavit and has tried to justify that the allegation of the petitioners regarding filing of number of cases is not correct.

Sri Rajesh Kumar Singh, learned counsel for complainant/opposite party No. 2 has vehemently opposed the prayer of the petitioners. He submits that regarding offences under Sections 323, 504/ 34 of the Indian Penal Code, there is specific accusation in the complaint petition itself, which was corroborated in the statement of complainant on solemn affirmation as well as witnesses who were examined during the enquiry and as such, the learned Magistrate has rightly passed the order of cognizance. Controverting the submission of learned senior counsel for the petitioners that in respect of same property the complainant had filed Title Suit, he submits that Title Suit which has been referred by the petitioners in Annexure-3 to the petition was not pertaining to the land in dispute. In the complaint case, he emphasized that the land mentioned in the present complaint petition is entirely different from the land mentioned in the Annexure-3 to the petition. He has emphasized that on the basis of materials which were available before the learned Magistrate, the learned Magistrate has passed right and correct order of cognizance, which is not required to be interfered with and the petition is fit to be rejected.

Besides hearing learned counsel for the parties, I have also perused the materials available on record. On perusal of the complaint petition itself the court is of the opinion that in a civil dispute colour of criminal offence has been given by the complainant. Moreover, this fact has been noticed by the Vigilance Investigation Bureau in its report which has been quoted above. The allegation made in the complaint petition also appears to be not probable. Once the complainant has alleged that he had gone to the official residence of Accused Mo. 3/Circle Officer in relation to demand of illegal gratification, in normal course, one cannot perceive that a public servant at the same time can entertain a person, who is having strained relation with the person from whom demand was made. All the facts have been noticed in the enquiry which was conducted deeply by the Vigilance Investigation Bureau. In view of the facts and circumstances, this court is of the opinion that the order of cognizance as well as entire proceeding in Complaint Case No. 1298 of 2008 is liable to be set aside on the ground of improbability. Allowing such proceeding may amount to allowing abuse of the process of the Court. Moreover, the contents of the complaint petition reflects nature of civil dispute. Accordingly, the order dated 18.1.2010 passed by the learned Chief Judicial Magistrate, Kaimur at Bhabhua in Complaint Case No. 1298 of 2008 in respect of petitioners is hereby set aside and the petition stands allowed.