SHAMA ALAM Vs. STATE OF BIHAR

JUDGEMENT

(1.) The present petition under Section 482 of the Code of Criminal Procedure has been filed by nine Petitioners against the order dated 27.7.2001 passed by Sub-Divisional Judicial Magistrate, Gopalganj in Complaint Case No. 477 of 2000, Tr. No. 1096 of 2001, whereby the learned Magistrate has rejected the discharge petition filed on behalf of the Petitioners.

(2.) Short fact of the case is that opposite party No. 2 filed a complaint in the Court of Chief Judicial Magistrate, Gopalganj, which was numbered as Complaint Case No. 477 of 2001 against aforesaid Petitioners for committing offence under Sections 468, 471 and 477 of the Indian Penal Code. It was disclosed by the complainant that on 7.11.2001, all the accused persons formed an unlawful assembly and came to the plot appertaining to Khata No. 156, Survey No. 2032, measuring 2 kathas 3 dhurs with a view to grab the land and started to remove hut of the complainant. After hearing, son of informant also arrived at the place of occurrence. The accused persons were armed with lathi, bhala etc. The son of the informant tried to restrain the accused persons. Thereafter, Accused No. 1 (Petitioner No. 1) and his two sons started assaulting the complainant and his son by fist and slaps and threw the planee (hut) and also removed bamboos and bricks. The complainant suffered a loss of about Rs. 20,000/-. The complainant, in respect of the said occurrence, filed a case in the Court of Chief Judicial Magistrate. The learned Chief Judicial Magistrate, under Section 192(1) of the Code of Criminal Procedure, transferred the record of the case to the Court of learned Sub-Divisional Judicial Magistrate for its enquiry and disposal in which learned Sub-Divisional Judicial Magistrate, by its order dated 25.11.2000, took cognizance of offence under Sections 147, 148, 323, 379 and 427 of the Indian Penal Code and summoned the accused persons. Thereafter, on 1.2.2001, all the accused persons produced a certified copy of sale deed dated 22.1.1926, which was purported to be executed by grandfather of complainant namely, Kishun Lohar in the name of Sheikh Amin Mian. It was alleged by the complainant that the accused persons, with a view to fraudulently grab the properties of the complainant, had filed forged certified copy in the court and as such on the prayer made by the complainant, the said certified copy was seized by the court. Thereafter, the complainant sent his Advocate Shri Arun Kumar Sinha to Registration Office, Chapra for bringing certified copy of the said document. On 13.2.2001, learned Advocate of the complainant Shri Arun Kumar Sinha filed an application vide Application No. 1978 dated 13.2.2001 for obtaining certified copy of the said document. However, same was returned after making endorsement on the said application that perusal of the cover shows the document as doubtful and as such no certified copy can be issued. On perusal of the cover of the Volume-3, Pages 278 to 279, it appears that some documents prepared in the script of Urdu was got removed by using ink remover and as such it was alleged by the complainant that all the accused persons, after committing forgery, had produced certified copy of the document in the court. The complainant further alleged in the complaint petition that this fact has come to the notice that accused persons, after making payment of huge money to some of the employees of the registration office, had brought the said volume out of the office and by using ink remover in place of writing in Urdu script, after removing the same, it was written in Hindi (Kaithi). Even signature put within the seal was also got removed by using ink remover and was written as Kishun Lohar, which was apparent by the naked eyes. The learned Sub-Divisional Judicial Magistrate had summoned Book No. 1, Vol.-3 and same was got exhibited. It was alleged that the accused persons had intentionally committed forgery in the record and produced the same in the court. On aforesaid allegation, complaint was filed in the Court of Chief Judicial Magistrate and the learned Chief Judicial Magistrate, under Section 192(1) of the Code of Criminal Procedure, transferred the said complaint to Court of Sub Divisional Judicial Magistrate for its enquiry and disposal. During enquiry, the complainant's statement on oath was recorded and besides this two witnesses were produced by the complainant in support of the complaint case. Amongst witnesses, one of the witnesses was handwriting and fingerprint expert. The learned Sub-Divisional Judicial Magistrate, after conducting enquiry, was prima facie, satisfied that offence under Sections 471 and 468 of the Indian Penal Code was made out against accused persons and as such by order dated 31.3.2001 directed for summoning the accused persons. At the stage of trial, a petition for discharge was filed on behalf of all the Petitioners. However, the learned Sub-Divisional Judicial Magistrate, by its order dated 27.7.2001, was satisfied with the material for framing of the charge for offence under Sections 468 and 471/34 of the Indian Penal Code and rejected the discharge petition and fixed the date to 16.8.2001 for charge.

(3.) Aggrieved with the order dated 27.7.2001, the Petitioners approached this Court by filing the present petition. On 24.1.2002, while issuing notice to opposite party No. 2, this Court directed that till the next date of hearing, further proceeding in Complaint Case No. 477 of 2000 pending in the court of Sub-Divisional Judicial Magistrate, Gopalganj shall remain stayed. Thereafter, on 9.5.2003, the case was admitted for hearing and it was directed that in the meantime, interim order dated 24.1.2002 shall continue and order of stay is still continuing.