Chandradev Prasad Sao vs The State Of Jharkhand
2022 Latest Caselaw 2939 Jhar

                                         1                Cr.M.P. No. 2069 of 2016

              IN THE HIGH COURT OF JHARKHAND, RANCHI
                        Cr.M.P. No. 2069 of 2016
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Chandradev Prasad Sao, son of late Goverdhan Prasad, resident of Village Gorhand, P.L. Gorhand via. Markacho, P.S.Rajdhanwar, District Giridih, Jharkhand ..... Petitioner

-- Versus --

1.The State of Jharkhand

2.Sobran Nayak, son of late Khedan Nayak, resident of village Gorhand, P.O. Gorhand via. Markacho, P.S.Rajdhanwar, District Giridih, Jharkhand ...... Opposite Parties

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CORAM: HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI

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For the Petitioner :- Mr. Binay Kumar Sahay, Advocate For the State :- Mr. Subodh Kumar Dubey, Advocate For the O.P.No.2 :- Mr. Sarvendra Kumar, Advocate

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3/02.08.2022 Heard Mr. Binay Kumar Sahay, the learned counsel appearing

for the petitioner, Mr. Subodh Kumar Dubey, the learned counsel appearing

on behalf of the respondent State and Mr. Sarvendra Kumar, the learned

counsel appearing on behalf of the O.P.No.2.

This petition has been filed for quashing the entire criminal

proceeding bearing Markacho P.S.Case No.199 of 2013 dated 10.10.2013,

corresponding to G.R. Case No.1561 of 2013, including the order taking

cognizance dated 08.08.2014, order dated 03.12.2014 passed by the learned

Judicial Magistrate, and order dated 23.07.2016 passed by the learned

Sessions Judge, Koderma in Cr.Rev.No.18/2015 whereby the prayer for

discharge has been rejected, pending in the court of learned Sub-Divisional

Judicial Magistrate, Koderma.

The First Information Report was lodged by the O.P.No.2

alleging therein that the informant Sobaran Nayak son of Khedan Nayak

(hereinafter called as O.P.No.2) on 10.10.2013 alleged in the FIR that the

raiyati land bearing Khata No.9, Plot No.167, measuring an area of 1.47

acres, situated at Village Khargu, P.S.Markacho, District Koderma, is recorded

in the names of Bandhu Teli, Roshan Teli and Deodutta Teli in the record of

right. The land was acquired for Panchkhero Project, the compensation

amount to the tune of Rs.9,99,600/- was fixed, has been received by the

petitioner on 25.01.2010. The amount should have been distributed amongst

the 17 co-sharers. But the petitioner presented himself to be sole claimant as

he happens to be grandson of Bandhu Teli. It is further alleged in the first

information report that each claimant had to receive Rs.1,66,600/-. The

O.P.No.2 has demanded his share several times, but the petitioner deferred

the matter on one pretext or the other, and extended threat that he will be

done to death. It is further alleged in the first information report that in the

year 1987-88, the compensation amount out of Khata No.9, Plot Nos.180 and

185, measuring an area of 205 decimals was paid to the co-sharers by the

Special Land Acquisition Officer, Hazaribagh.

Mr. Sahay, the learned counsel appearing on behalf of the

petitioner submits that the F.I.R was lodged by the O.P.No.2 who is one of

the co-sharer. He further submits that there has been complete partition

amongst Khedan Nayak, Goverdhan Nayak and Mahadeo Nayak and in

presence of all the co-sharers on 10.03.1980 the partition was done which

was oral (Panchnama) by way of certified copy at Annexure-6 in respect of

Plot No.164, Khata No.9, 1.47 Acre given to Goverdhan Nayak and

Goverdhan Nayak is the father of this petitioner. He submits that total area

was allotted to Goverdhan Nayak is 4.58 acres and likewise the other co-

sharers were also allotted and he submits that the said area 1.47 acres was

acquired by the Government for Panchkhero Jalashay Project and for that

award was passed in favour of the petitioner and the said award was referred

to the learned Special Judge, Senior Division-II, Koderma for answering the

reference and in the said reference the award was affirmed. He submits that

for civil wrong the criminal case has been filed and the learned trial court has

rejected the discharge petition of the petitioner on 03.12.2014 which was

taken before the learned Sessions Judge, Koderma in Cr.Revision No.18/2015

which was also rejected on 23.07.2016 and thereafter the petitioner has filed

this petition. He submits that the entire allegation made is with regard to the

land in question which was the subject matter of the partition and there is no

criminality involved and the case has been lodged against the petitioner. He

relied in the case of Vinod Natesan v. State of Kerala and Others, 2019

0 AIR(SC) 296. Paragraph no.6 of the said judgment is quoted

hereinbelow:

"6. Having heard the appellant as party in person and the learned Advocates appearing on behalf of the original accused as well as the State of Kerala and considering the judgment and order passed by the High Court, we are of the opinion that the learned High Court has not committed any error in quashing the criminal proceedings initiated by the complainant. Even considering the allegations and averments made in the FIR and the case on behalf of the Appellant, it cannot be said that the ingredients of sections 406 and 420 are at all satisfied. The dispute between the parties at the most can be said to be the civil dispute and it is tried to be converted into the criminal dispute. Therefore, we are also of the opinion that the continuing the criminal proceedings against the accused will be an abuse of process of law and, therefore, the High Court has rightly quashed the criminal proceedings. Merely because the original accused might not have paid the amount due and payable under the agreement or might not have paid the amount in lieu of one month Notice before terminating the agreement by itself cannot be said to be a cheating and/or having committed offence under sections 406 and 420 of the IPC as alleged. We are in complete agreement with the view taken by the High Court."

Relying on this judgment, he submits that the case of civil

nature is involved and criminal case is not permissible. On the same line, he

also relied in the case of Deo Nandan Prasad v. State of Jharkhand,

2015(2) JLJR 123(Jhar.).

On the other hand, Mr. Sarvendra Kumar, the learned counsel

appearing on behalf of the O.P.No.2 submits that the O.P.No.2 is the co-

sharer of the land in question and the entire amount has been taken by the

petitioner and the amount has not been paid to him and that is why the

case has been filed. He submits that there are materials in the charge sheet

and the learned court has rightly rejected the discharge petition filed by the

petitioner and the land acquisition case was pending and subsequently the

land acquisition case has been disposed of. He further submits that L.A.

case has been challenged in the High Court and in view of the pecuniary

jurisdiction, that has been sent to the concerned court.

Mr. Subodh Kumar Dubey, the learned counsel appearing on

behalf of the respondent State submits that there is no illegality and there

are materials and that is why the learned court has rejected the discharge

petition filed by the petitioner and there is no illegality in the order taking

cognizance.

In view of the above facts and the submissions of the learned

counsels appearing on behalf of the parties, the Court has gone through the

materials on record and finds that the F.I.R has been lodged. The land in

question is of Khata No.9, Plot 167 area 1.47 acres. On perusal of the

partition brought on record it transpires that father of this petitioner namely

late Goverdhan Nayak was allotted the disputed area of plot. The others

have also been provided relevant portion of the plots of Khata No.9 as well

as other plots. The land in question was acquired by the Government for

Panchkhero Jalashay Project and the award was in favour of the petitioner

to the tune of Rs.9,99,600/- and the said award was referred to the learned

Civil Judge, Senior Division-II, Koderma which was registered as Land

Acquisition Reference Case No.1/2013. In the said reference, the O.P.No.2 is

shown as applicant-petitioner no.3 whereas this petitioner has been shown

as Opposite party no. 1 The reference was for land acquired in Khata No.9,

Plot No.167, Area 1.47 Acre. The learned court has held that the document

shows that the Land Acquisition Officer was fully satisfied with the

possession of Opposite party no. 1, who is this petitioner, however, Khata

No.9, Plot No.167 there prepared the award and paid the compensation and

the whole process was done in accordance with law. The said award was

affirmed in that reference. In the criminal revision order of the learned

Sessions Judge, he was also opined that certainly this civil component is

involved in the present case, however, considering the case diary he came

to the conclusion that there is prima facie materials against the petitioner

and that is why he has dismissed the criminal revision preferred against the

discharge petition rejected by the learned trial court. In the said order it has

also been recorded that there is land acquisition case is pending. The

revisional order is dated 23.07.2016. The referral order of the learned Civil

Judge Senior Division -II Koderma is brought on record by way of

supplementary affidavit which was decided on 30.09.2019 which suggest

that the said acquisition case has already been disposed of which was

affirmed in the reference. There is already partition. The award has been

affirmed in the reference. The O.P.No.2 has not been able to show how the

petitioner has cheated the O.P.No.2. It is well-settled that even after the

revisional order, if there is injustice, the Court sitting under section 482 of

the Cr.P.C. can exercise its inherent powers. Moreover, the occurrence is

alleged to be of 25.01.2010 whereas the FIR has been lodged on

10.10.2013 and there is delay of three years and there is no explanation of

filing the F.I.R belatedly.

In view of the above facts, reasons and the analysis, the

entire criminal proceeding bearing Markacho P.S.Case No.199 of 2013 dated

10.10.2013, corresponding to G.R. Case No.1561 of 2013, including the

order taking cognizance dated 08.08.2014, order dated 03.12.2014 passed

by the learned Judicial Magistrate, and order dated 23.07.2016 passed by

the learned Sessions Judge, Koderma in Cr.Rev.No.18/2015 whereby the

prayer for discharge has been rejected, pending in the court of learned Sub-

Divisional Judicial Magistrate, Koderma is, hereby, quashed.

Cr.M.P.No.2069 of 2016 stands allowed and disposed of.

I.A., if any, also stands disposed of.

Interim order, if any, also stands vacated.

( Sanjay Kumar Dwivedi, J.)

SI/,