Md. Allauddin Khan vs The State Of Bihar

CRIMINAL APPEAL No. 675 OF 2019 (Arising out of S.L.P.(Crl.) No.1151 of 2018)

Md. Allauddin Khan ….Appellant(s)

VERSUS

The State of Bihar & Ors. ….Respondent(s)

JUDGMENT

Abhay Manohar Sapre, J.

1. Leave granted.

2. This appeal is directed against the final

judgment and order dated 11.09.2017 passed by

the High Court of Judicature at Patna in Criminal

Miscellaneous Application No.27078 of 2013 Signature Not Verified Digitally signed by ANITA MALHOTRA whereby the High Court allowed the Criminal Date: 2019.04.15 17:00:10 IST Reason:

Miscellaneous Application filed by respondent Nos.2

1 1 & 3 herein and quashed the complaint filed by the

appellant herein.

3. A few facts need mention hereinbelow for the

disposal of this appeal, which involves a short point.

4. By impugned order, the High Court quashed

the order dated 13.02.2013 passed by the Judicial

Magistrate 1st Class, Saran at Chapra in Complaint

Case No.21/2012 whereby the Judicial Magistrate

took cognizance of the complaint filed by the

appellant herein against respondent Nos. 2 and 3

for commission of the offences punishable under

Sections 323, 379 read with Section 34 of the

Indian Penal Code, 1860 (for short “IPC”) by holding

that a prima facie case was made out against

respondent Nos.2 and 3 on the basis of allegations

made in the complaint.

5. So, the short question which arises for

consideration in this appeal filed by the

2 2 complainant is whether the Judicial Magistrate was

right in holding that a prima facie case is made out

against respondent Nos.2 and 3 for commission of

the offences punishable under Sections 323, 379

read with Section 34 IPC so as to call upon them to

face the trial on merits or whether the High Court

was right in holding that no prima facie case has

been made out against respondent Nos.2 and 3.

6. Heard Mr. Binay Kumar Das, learned counsel

for the appellant, Mr. Prabhat Ranjan Raj, learned

counsel for respondent Nos.2 & 3 and Mr.

Devashish Bharuka, learned counsel for respondent

No.1­State.

7. Having heard the learned counsel for the

parties and on perusal of the record of the case, we

are constrained to allow the appeal, set aside the

impugned order and restore the order of the

Judicial Magistrate dated 13.02.2013.

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8. The High Court examined the case in para 6,

which reads as under:

“6. On perusal of complaint petition, I find that the complainant has asserted that firstly, he had contracted for purchasing the shop premises from the land owner, but the petitioners offered more money and got the document registered in their favour. There is no chit of paper on record to support the agreement of sale or payment of any amount to the land owner. The petitioners claim to be bona fide purchaser of the shop premises, which was in tenancy of the complainant. The petitioners have filed an Eviction Suit No.10 of 2012, in which the complainant has filed his written statement admitting tenancy in the said shop premises. The complainant has further asserted that he has been remitting rent of the said shop regularly and when he learnt about the transfer of shop premises in favour of the petitioners, the complainant has filed a Title Suit No.2 of 2012. The dispute between the parties appears to be a civil dispute. The relationship of landlord and tenant stands admitted by the complainant in the eviction suit. I further find that there are contradictions in the statement of witnesses on the point of occurrence. The criminal prosecution of these petitioners in the above background appears to be an abuse of process of Court.”

9. On perusal of the impugned order, we find that

it suffers from two errors.

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10. First error is that the High Court did not

examine the case with a view to find out as to

whether the allegations made in the complaint

prima facie make out the offences falling under

Sections 323, 379 read with Section 34 IPC or not.

11. Instead the High Court in Para 6 gave

importance to the fact that since there was a

dispute pending between the parties in the Civil

Court in relation to a shop as being landlord and

tenant, it is essentially a civil dispute between the

parties.

12. It is on this ground, the High Court proceeded

to quash the complaint. This approach of the High

Court, in our view, is faulty.

13. Though the High Court referred to the law laid

down by this Court in the case of State of Haryana

& Ors. vs. Ch. Bhajan Lal & Ors. (AIR 1992 SC

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604) but failed to apply the principle laid down

therein to the facts of this case.

14. The High Court failed to see that mere

pendency of a civil suit is not an answer to the

question as to whether a case under Sections 323,

379 read with Section 34 IPC is made out against

respondent Nos. 2 and 3 or not.

15. The High Court should have seen that when a

specific grievance of the appellant in his complaint

was that respondent Nos. 2 and 3 have committed

the offences punishable under Sections 323, 379

read with Section 34 IPC, then the question to be

examined is as to whether there are allegations of

commission of these two offences in the complaint

or not. In other words, in order to see whether any

prima facie case against the accused for taking its

cognizable is made out or not, the Court is only

required to see the allegations made in the

6 6 complaint. In the absence of any finding recorded by

the High Court on this material question, the

impugned order is legally unsustainable.

16. The second error is that the High Court in para

6 held that there are contradictions in the

statements of the witnesses on the point of

occurrence.

17. In our view, the High Court had no jurisdiction

to appreciate the evidence of the proceedings under

Section 482 of the Code Of Criminal Procedure,

1973 (for short “Cr.P.C.”) because whether there are

contradictions or/and inconsistencies in the

statements of the witnesses is essentially an issue

relating to appreciation of evidence and the same

can be gone into by the Judicial Magistrate during

trial when the entire evidence is adduced by the

parties. That stage is yet to come in this case.

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18. It is due to these two errors, we are of the

considered opinion that the reasoning and the

conclusion arrived at by the High Court for

quashing the complaint filed by the appellant

against respondent Nos. 2 and 3 is not legally

sustainable and hence it deservers to be set aside.

19. In view of the foregoing discussion, the appeal

succeeds and is accordingly allowed. The impugned

order is set aside and the order of the Judicial

Magistrate dated 13.02.2013 is restored because it

records a finding that a prima facie case for taking

cognizance of the complaint is made out.

20. The Judicial Magistrate is accordingly directed

to proceed to conclude the trial on merits on the

basis of evidence adduced by the parties in the trial

strictly in accordance with law uninfluenced by any

8 8 observations made by the High Court in the

impugned order and in this order made by this

Court.

………...................................J. [ABHAY MANOHAR SAPRE]

....……..................................J. [DINESH MAHESHWARI] New Delhi;

April 15, 2019.

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