Sanjeev Kumar @ Guddu @ Sanjeeo ... vs The State Of Bihar
2021 Latest Caselaw 2195 Patna

           IN THE HIGH COURT OF JUDICATURE AT PATNA
                   CRIMINAL MISCELLANEOUS No. 36626 of 2020
        Arising Out of PS Case No.-27 Year-2020 Thana- PHENHARA District- East Champaran
      ======================================================

1. Sanjeev Kumar @ Guddu @ Sanjeeo Kumar Shrivastava, aged about 50 years (Male), Son of Sri Raghunath Prasad.

2. Shivam Swaraj, Son of Sanjeeo Kumar Shrivastava, aged about 21 years, (Male) Both resident of Rajpur Kawal Marpa, PS-Phenhara, District-East Champaran.

... ... Petitioner/s Versus The State of Bihar

... ... Opposite Party/s ====================================================== Appearance :

      For the Petitioner/s     :       Mr. Anuj Kumar, Advocate
      For the State            :       Mr. Parmanand Kumar, APP
      For the Informant        :       Mr. Umesh Chandra Verma, Advocate

====================================================== CORAM: HONOURABLE MR. JUSTICE AHSANUDDIN AMANULLAH ORAL JUDGMENT Date : 01-06-2021

The matter has been heard via video conferencing.

2. The matter has been heard out of turn on the basis of

motion slip being filed by learned counsel for the petitioners

yesterday, which was allowed.

3. Heard Mr. Anuj Kumar, learned counsel for the

petitioners; Mr. Parmanand Kumar, learned Additional Public Patna High Court CR. MISC. No.36626 of 2020 dt.01-06-2021

Prosecutor (hereinafter referred to as the 'APP') for the State and

Mr. Umesh Chandra Verma, learned counsel for the informant.

4. The petitioners apprehend arrest in connection with

Phenhara PS Case No. 27 of 2020 dated 17.03.2020, instituted

under Sections 420, 467, 468, 471, 120B, 323, 504 and 506 of the

Indian Penal Code.

5. The allegation against the petitioner no. 1, and his son

who is petitioner no. 2, is that the gift deed executed by the father

of the petitioner no. 1 in favour of petitioner no. 2, who is his

grandson, the lands in question were ancestral lands did not

belong to the transferor as it fell in the share of the informant who

is also the original co-parcener and to whom such land was given

at the time of partition.

6. Learned counsel for the petitioners submitted that

they have absolutely no role in the entire allegation, even if for the

sake of argument, it is believed that the lands in question did not

come in the share and belong to the father of the petitioner no. 1,

as the petitioner no. 2 is the beneficiary of that deed and it was for

the transferor to be aware of what he had. However, learned

counsel submitted that on merits also, the present criminal case is

absolutely not maintainable and abuse of the process of the Court.

It was submitted that on the basis of original partition, more than Patna High Court CR. MISC. No.36626 of 2020 dt.01-06-2021

two decades back, of which Panchnama was also executed, the

parties got their separate Jamabandies and Jamabandi No. 51 was

created in favour of the father of the petitioner no. 1 whereas

Jamabandi No. 52 was created in favour of the informant, but no

details, either of khata number or plot number was mentioned in

the Jamabandi. It was submitted that under bona fide belief, from

among the total area covered under the Jamabandi, a piece of land

was gifted by the father of the petitioner no. 1 in favour of

petitioner no. 2. It was submitted that it is not a case where the gift

deed was beyond the total area of Jamabandi No. 51 in favour of

the father of the petitioner no. 1. Learned counsel submitted that

otherwise also, even if there is any controversy with regard to the

concerned piece of land coming in the share of the informant, it is

a civil dispute where evidence is required to be taken, including

documentary, and for the parties to prove as to which exact plots

were allotted in their share and which exact plots are covered in

their respective Jamabandis, which has still not been done. Thus,

even if there is a gift of deed in favour of petitioner no. 2, it has

not caused any irreparable damage to the informant as he has not

claimed that based on the gift deed, the petitioners have either

taken possession or tried to deal with the lands in question. Thus,

for all practical purposes, no steps on the ground have been taken.

Patna High Court CR. MISC. No.36626 of 2020 dt.01-06-2021

He reiterated that the informant had the remedy to get a

clarification from the civil Court of competent jurisdiction with

regard to the plots coming under the Jamabandi and share of the

respective parties and then, based on the same, if the plots in

question came in the share of the informant, consequences would

follow, and anyone aggrieved would have the right to institute any

proceeding, but before the appropriate forum, in accordance with

law, but on the purely civil side, and in any view of the matter, the

criminal case is totally not maintainable. It was submitted that the

petitioners are respectable citizens having no criminal antecedent

and basically the dispute is between close relatives and also with

regard to ancestral property. It was submitted that the grandfather

of the petitioner no. 1 and the informant was the same person

whose property has been divided among the two branches.

7. Learned APP submitted that from what is on record

and the submissions of learned counsel for the petitioners, it

appears that the matter is required to be adjudicated on the civil

side.

8. Learned counsel for the informant submitted that the

criminal aspect of the matter is also highlighted for the reason that

the land in question was never allotted in the share of the father of

petitioner no. 1 and he knew the same and still went ahead with Patna High Court CR. MISC. No.36626 of 2020 dt.01-06-2021

the transfer. It was submitted that the father of the petitioner no. 1

had in fact filed a petition before the District Magistrate, East

Champaran in 2019 with regard to getting the exact plots

mentioned in the Jamabandi which had been omitted and the

present land was also part of that, but without waiting for the final

outcome, the gift deed has been executed. It was submitted that

inquiry has revealed that the land in question was in possession of

the informant.

9. At this juncture, on a query of the Court as to whether

the land in question is beyond the area mentioned in the

Jamabandi in favour of the petitioner no. 1's father, learned

counsel fairly submitted that the area of the gifted land is much

less than the total area reflected in the Jamabandi No. 51 in favour

of the father of the petitioner no. 1.

10. Learned counsel for the petitioners, by way of reply,

submitted that the original Panchnama relating to partition is with

the informant and from the same, it would be clear that there is

interpolation by adding the present land in the said Panchnama to

show that it fell in the share of the informant. It was submitted that

details not being there would be clear from the fact that even after

two decades, the Jamabandi in favour of the informant, which

also does not detail any khata number or plot number, no steps Patna High Court CR. MISC. No.36626 of 2020 dt.01-06-2021

have been taken by the informant to get any clarification or to get

the same noted in the official revenue records in the Jamabandi

No. 52 created in his favour; which also indicates that no mens

rea or criminal intent can be attributed against the accused persons

in the present case. Learned counsel submitted that, at the cost of

repetition, the issue, if at all is to be raised, before the civil Court

of competent jurisdiction.

11. Having considered the facts and circumstances of

the case and submissions of learned counsel for the parties, in the

event of arrest or surrender before the Court below, within eight

weeks from today, the petitioners be released on bail upon

furnishing bail bonds of Rs. 25,000/- (twenty five thousand) each

with two sureties of the like amount each to the satisfaction of the

learned Chief Judicial Magistrate, East Champaran, Motihari in

Phenhara PS Case No. 27 of 2020, subject to the conditions laid

down in Section 438(2) of the Code of Criminal Procedure, 1973

and further, (i) that one of the bailors shall be a close relative of

the petitioners and (ii) that the petitioners shall co-operate with the

police/prosecution and the Court. Failure to co-operate shall lead

to cancellation of their bail bonds.

12. It shall also be open for the prosecution to bring any

violation of the foregoing conditions of bail by the petitioners, to Patna High Court CR. MISC. No.36626 of 2020 dt.01-06-2021

the notice of the Court concerned, which shall take immediate

action on the same after giving opportunity of hearing to the

petitioners.

13. The application stands disposed off in the

aforementioned terms.

(Ahsanuddin Amanullah, J.)

P. Kumar

AFR/NAFR U T