SHANTI DEVI PRASAD Vs. STATE OF JHARKHAND

JUDGEMENT

(1.) THE instant revision application has been filed by the petitioner praying for quashing the impugned order dated 27-3-2008 passed in C2 Case No. 109 of 2000 by the Judicial Magistrate, First Class, ranchi, whereby the petitioners' prayer for their discharge in respect of the offences for which cognizance was taken has been rejected.

(2.) FACTS of the case briefly stated, is that the criminal proceedings initiated before the court below was based on a complaint lodged by Sri A. P. Sharma, Sub-Judge III, ranchi in exercise of powers under Section 195 (1) (b) of the Code of Criminal procedure read with Section 340 of the Code. The averments in the complaint relate to certain offences alleged to have been committed in relation to the proceedings in an execution case No. 1/83a which was pending in the court of Sub-Judge VI, Ranchi. A suit for specific performance of contract of Title Suit No. 125 of 1981 was filed by the petitioners. The suit was decreed in favour of the petitioners on 18-10-1982. However, the decree could not be executed on account of continuation of the suit through appeal up to the Supreme Court. The judgment attained finality in 1995 by the order of the Supreme Court on the dismissal of the ultimate appeal preferred by the defendants. The execution proceedings vide execution case No. 1 of 1983a which was earlier initiated but remained stayed by the order of the appellate Court, was revived after vacation of the stay. The Court of Sub-Judge vi before whom the execution proceedings were pending, executed the sale deed dated 23-12-1998 and presented the same before the Registrar for registration. A chirkut purported to be the filing receipt, was issued by the Registry office on the same day i. e on 23-12-1998 in token of receiving the document for registration. In the meanwhile, civil Revision Application filed by the defendant/judgment debtor before the High court vide Civil Revision Nos. 223 and 224 of 1999 (R) were dismissed and direction was issued by the High Court on 27-1-1999 to the executing Court to take steps for delivery of possession of the suit property. Pursuant to the aforesaid order of the High court, the executing Court namely the Court of Sub-Judge VI commenced the process on 25-2-1999 for delivery of possession by assessing the cost for deputation of police force and Magistrate and on 1-6-1999, the executing court directed the petitioners/decree holders to deposit cost for deputing police force. Thereafter, the execution proceeding was transferred from the Court of Sub-Judge VII to Sub-Judge VI. On 1-7-1999, Sub-Judge VI, directed for deputation of magistrate for effecting the delivery of possession fixing the case on 21-7-1999 as the next date. On 24-7-1999, the executing Court on the application of the petitioners issued writ of delivery of possession making the rule returnable on 23-8-1999 and to be executed by the Nazir of the civil Court with the help of the police force and the Magistrate. The writ of delivery of possession was issued and signed by the sub-Judge VI on 4-8-1999 and the writ was effected on 11-8-1999 by delivery of the suit property to the petitioners. However, on 23-8-1999, the Sub-Judge vi recalled its own order dated 24-7-1999 on the application filed by the judgment debtor on 12-8-1999 on the ground that the registered documents were not received as yet and as such the decree holder has not acquired any title and also on the ground that the direction for issuance of the writ of delivery of possession was passed on account of the fault of the bench clerk as because on the said date i. e. 24-7-1999, the records of the execution proceedings were not produced and none of the parties were heard. After the order of recall, as mentioned above, was passed by the Sub-Judge VI, the judgment debtor filed an application under section 340 of the Code of Criminal Procedure on 2-12-1999 before the Sub-Judge VI alleging that the order for issuance of the writ of delivery of possession was obtained by the petitioners behind the back of the judgment debtor and by suppressing the fact that the sale deed was not yet registered in the office of the Registrar, Ranchi and therefore in absence of registration, the title to the suit property had not passed on to the decree holders/petitioners and on the further allegation that the decree holders had even misled the Nazir of the civil Court by placing before him some arbitrary map of the suit land and on the basis of such mis-representation, had persuaded the Nazir to execute the writ of delivery of possession by demolishing the existing structures with the help of bulldozer standing on land which was not part of the suit land and that it was with the connivance of the bench clerk of the court that the decree holders had succeeded in manipulating the dates and obtaining the order from the executing Court for issuance of writ of delivery of possession. Some more allegations were also levelled suggesting that on the pretext of execution of the writ of delivery of possession the decree holders/petitioners got demolished even the double storeyed pucca building by means of their misrepresentation made before the nazir, even though there was no order for demolition of the building in the writ issued by the Court. More specific allegation against the petitioners in the complaint was that on 30-8-1999 the petitioner/decree holders filed a petition before the Court of Sub-Judge VI in the execution proceedings stating falsely therein that the sale deed in respect of the suit land was registered in their names and similar misrepresentation was again made by them before the executing Court on 9-9-1999 reiterating that the sale deed was registered and the registration receipts had been given to them, though the fact was that the sale deed was not registered till that date. Accusing the decree holders/petitioners of having committed offences punishable under Sections 466/470/471/191/192/ 193/210/427/441/448/503/420, IPC, the judgment debtor had prayed for conducting enquiry and for filing a criminal complaint against the decree holders in exercise of powers under the provisions of Section 340, cr. P. C.

(3.) THE petition of complaint as filed by the judgment debtor was numbered as Misc. Criminal Case No. 2 of 1999. However, the presiding officer of the Court of Sub-Judge vi did not take cognizance of the complaint filed by the judgment debtor. It was during this period that the execution proceeding were transferred from the Court of Sub-Judge VI to the Court of Sub-Judge III on or about 11-10-1999. Feeling aggrieved that the Sub-Judge VI did not take action on his complaint, the judgment debtor preferred appeal before the Judicial Commissioner, ranchi. The Judicial Commissioner, Ranchi, by order dated 20-4-2000 passed in the Cr. Misc. No. 20 of 2000 directed the Sub-Judge iii to enquire into the complaint of the judgment debtor under Section 340, Cr. P. C. The aforesaid order of the judicial Commissioner, according to the petitioners, was passed behind the back of the petitioners since they were not informed about the filing of the misc. appeal by the judgment debtor before the judicial commissioner.