Judgment:
D.G.R. Patnaik, J.
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(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 No. 223 and 224 of 1009 (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 misrepresentation, 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 committedoffences 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.
4. Pursuant to the direction of the judicial commissioner, the presiding officer of the court of sub judge III conducted an enquiry and on the basis of his findings on enquiry, he filed the present complaint in the court of the CJM against the petitioners which was registered as C2/109 of 2000. The learned Chief Judicial Magistrate took cognizance of the offence and transferred the case to the court of the Judicial Magistrate for trial and disposal. At the stage of commencement of the trial, the petitioners prayed for their discharge from the trial in the case. Their prayer was rejected by the Judicial Magistrate by the impugned order against which the petitioners have preferred the present revision application.
5. The petitioners have taken the following grounds assailing the impugned order:
(i) that the very complaint as filed by the learned Sub Judge III is against the provisions of Section 195(D) read with Section 340 of the Code of Criminal procedure as because no part of the alleged offence was committed by the petitioners in relation to the execution proceedings at the time when it was received on transfer in the court of Sub Judge III and the offence are alleged to have been committed only when the proceeding was pending in the court of the Sub judge VI. Under such circumstances, the complainant namely the Sub judge III, who was the presiding officer of the transferee court was not competent to enquire into and to lodge complaint for the offences which was allegedly committed in the proceedings before the Sub judge VI. The enquiry under Section 340 Cr.P.C. could have been conducted only by Sub judge VI since the court of Sub judge VI was functioning. The petitioners rely on this issue on a Division Bench judgment of the Patna High Court in the case reported in 1975 Cr. L.J. 954 Patna;
(ii) that no ingredient of any offence is made out even from the entire allegations and the materials on record and therefore the petitioners cannot be put on trial for offences which are not made out even prima facie against them.
Learned Counsel for the petitioners explains in this context that while recalling the order dated 24.07.1999 by her order dated 23.8.1999, the presiding officer of the court of Sub Judge VI had observed that since the order dated 24.7.1999 was passed on account of the fault of the bench clerk therefore the order was recalled. Learned Counsel explains further that when the matter came up for consideration before the High Court on its administrative side, the said presiding officer of the court of Sub Judge VI had acknowledged before the Hon'ble Inspecting judge that the order dated 23.8.1999 whereby she had recalled her earlier order dated 24.7.1999 was a mistake and she prayed for condonation of such mistake on her part. Learned Counsel refers in this context to the judgment (2001 (2) PLJR 459) and argues further that in the light of the orders dated 24.7.1999 and 23.8.1999 passed in the judicial records of the execution proceedings, it is apparent that the presiding officer of the court of Sub Judge VI had acknowledged that the recalling of the order dated 24.7.1999 was a mistake on her part and in neither of the orders was there any indication or suggestion even remotely, that the said order was passed on account of any misrepresentation or suppression of fact made by the petitioners before the concerned court.
(iii) that the allegation as contained in para 4(g) and (h) of the complaint petition that the civil revision 354 of 19099R was dismissed by the High Court by order dated 16.2.2000, is a wrong and misleading statement as because the fact is that the civil revision was disposed of by the High Court with an observation that the possession of the suit property be delivered only through process of court after the transfer document is registered. There is no finding or observation of the High Court that any perjury was committed or any false statement was given by the decree holder/petitioners.
(iv) that the impugned order rejecting the petitioners prayer for discharge is a non speaking order and passed without application of judicial mind to the relevant materials on record.
6. The informant/opposite party No. 2 has filed his counter affidavit controverting the grounds advanced by the petitioners. A preliminary objection on the maintainability of the instant criminal revision has been taken on the ground that on the same grounds, the petitioners had earlier filed a writ petition being Cr W.J.C. No. 139 of 2000(R) and Civil Revision No. 354 of 1999(R), before this Court and against the orders of the court passed in the writ petition, the petitioners had moved the Supreme Court in SLP, (Cr.) No. 2349 of 2001. The grounds which the petitioners had earlier taken and which have been reiterated in the present revision application, were dismissed by the High Court as well as the Supreme Court and in absence of any change in circumstances, or any new development, there could be no scope for filing the instant revision application. Learned Counsel for the opposite party No. 2 explains that one of the questions of law which was raised in Cr.W.J.C No. 139 of 2000R before this Court, was whether the impugned order dated 13.5.2000 holding the petitioners prima facie guilty for the offence, is against the provisions of Section 340 Cr. P.C and the provisions of Articles 14 and 16 of the Constitution and whether the basis of complaint (lodged by Sub Judge III/respondent No. 2 in the aforesaid writ petition) is based on illegal and arbitrary enquiry and whether the order of cognizance dated 22.6.2000 passed by the CJM is bad in law. Learned Counsel explains that on both the questions, the High Court had observed that there was no illegality or impropriety in the order of the Sub Judge III passed after concluding the enquiry under Section 340 of the Code and that there is no illegality in the filing of the complaint by the respondent (Sub Judge III) or in the order taking cognizance of the offence.
Learned Counsel explains further that the petitioners had made false statements on affidavit in the execution proceedings and had committed perjury by swearing falsely that they were given registration receipt 'chirkut' issued on 23.12.1998 and that the title of land had passed on to them. The fact, on the contrary was that the receipt issued by the registry officer was in token of the receipt of the documents for impounding. The said receipt is issued under Rule 9 of the Bihar Stamp Rules, 1995 read with Rule 25 of the Bihar Registration Act, 1937 and the word 'referred' is boldly and clearly written on the said receipt indicating thereby that the documents were received only for the purpose of impounding and the same is not a receipt of registration as misrepresented by the petitioners in their affidavit filed in the execution proceeding before the executing court. Learned Counsel points out further that a further false misrepresentation was made by the petitioners in the execution proceedings on affidavit on the basis of the chirkut that the said land stood registered in their favour at serial No. 98 as indicated in the chirkut. The serial number, according to the learned Counsel, was, in fact, the serial number entered in the Impound Document Register on receipt of the document for impounding. The fact that the document was not registered on 23.12.1998 has also been observed by the High Court in its order passed in the CR No. 354 of 1999R where it was held that the document has not been registered till date i.e. 16.02.2000.
7. By way of rejoinder to the argument on behalf of the opposite party No. 2 the learned Counsel for the petitioners has sought to explain that the earlier Cr. W.J.C. No. 139 of 2000R filed by the petitioners, was with a prayer for quashing the order of cognizance dated 22.6.2000 on the ground that the enquiry conducted by the Sub Judge III and the order dated 30.5.2000 of the Sub Judge III passed pursuant to the enquiry conducted by him under Section 340 of the Code of Criminal procedure to lodge the complaint, was bad as because the petitioners were not allowed to participate in the said enquiry. On the other hand, the present criminal revision application has been filed in a totally different context altogether at the stage of discharge post cognizance of the offence. It is argued that the essential grounds taken by the petitioners in the present application is that the very compliant as filed by the Sub Judge III is against the provisions of Section 195(b) read with Section 340 of the Code since the offences were committed allegedly in relation to the execution proceedings at the time when it was pending in the court of the Sub Judge VI and not in the court of Sub Judge III and as such the cognizance of the complaint filed by the judgment debtor could have been taken only by the presiding officer of the court of Sub Judge VI who alone, under the provisions of law, could have filed the criminal complaint. Learned Counsel submits that this ground was not taken by the petitioners before the high court in Cr. W.J.C. No. 139 of 2000R and as such no decision was recorded on this issue by the High Court.
8. From the facts noted above, it appears that the complaint for taking action under Section 340 of the Code of Criminal Procedure was filed by the judgment debtor in the execution proceedings at the time when the said proceeding was pending in the court of the Sub Judge VI. The execution proceedings later stood transferred to the court of Sub Judge III. Since no order was passed by the Presiding Officer of the court of Sub Judge VI on the petition of complaint filed by the judgment debtor, a Criminal Misc. Petition was filed by the judgment debtor before Judicial Commissioner who ordered that the presiding officer of the court to which the execution proceedings stood transferred, should conduct enquiry on the complaint of the judgment debtor under Section 340 of the Code of Criminal procedure. Accordingly, the presiding officer of the court of Sub Judge III conducted enquiry and on the finding of a prima facie case against the decree holders for offences alleged, a complaint was prepared and filed before the competent court namely the court of the CJM. Cognizance of the offence was taken by the CJM and while issuing summons to the accused persons directing them to face trial. Judicial record of the case was transferred for trial and disposal to the court of the Judicial Magistrate.
9. Section 340 of the Code of Criminal Procedure reads as follows:
Section 340 Cr.P.C. Procedure in cases mentioned in Section 195:
(1) When upon an application made to it in this behalf or otherwise any Court is of opinion that it is expedient in the interest of justice that an inquiry should be made into any offence referred to in Clause (b) of Sub-section (1) of Section 195, which appears to have been committed in or in relation to a proceeding in that Court or, as the case may be, in respect of a document produced or given in evidence in a proceeding in that Court, such Court may, after such preliminary inquiry, if any, as it thinks necessary,-
(a) record a finding to that effect;
(b) make a complaint thereof in writing;
(c) send it to a Magistrate of the first class having jurisdiction
(d) take sufficient security for the appearance for the accused before such Magistrate, or if the alleged offence is non bailable and the Court thinks it necessary so to do send the accused in custody to such Magistrate; and
(e) bind over any person to appear and give evidence before such Magistrate.
(2) The power conferred on a Court by Sub-section (1) in respect of an offence may, in any case where that Court has neither made a compliant under Sub-section (1) in respect of that offence nor rejected an application for the making of such complaint, be exercised by the Court to which such former Court is subordinate within the meaning of Sub-section (4) of Section 195.
(3) A complaint made under this section shall be signed,-
(a) where the Court making the complaint is a High Court, by such officer of the Court as the Court may appoint:
(b) in any other case, by the presiding officer of the Court.
(4) In this section 'Court' has the same meaning as in Section 195.
10. A plain reading of the provisions of Section 340 Cr.P.C. would indicate that the stress is on the 'acts constituting offences committed in or in relation to a proceeding pending before the court'. The court before whom the proceeding was pending had the authority to exercise power under the previsions of Section 340 Cr.P.C. Such proceeding, if initiated by the same court, would be a separate and distinct proceeding altogether and the court which initiated the proceeding would alone be competent to conduct enquiry and to file complaint under the provisions of Section 340 Cr.P.C. Where, however, the court before whom the application is filed by a party to the proceeding for initiating action under the provision of Section 340 Cr.P.C., but no action is initiated by the court and the application remains on record, the transferee court which receives the records of the judicial proceedings on transfer, does assume authority to act under the provisions of Section 340 when on the basis of the application which is available on record, the transferee court is of the opinion that it is expedient in the interest of justice that enquiry into any offence referred to in Clause (B) of Sub-section (1) of Section 195 Cr.P.C. which appears to have been committed in or in relation to a proceeding pending before it or in respect of the document produced or given in evidence in the proceedings before it. It cannot therefore be disputed that the transferee court has the jurisdiction to exercise powers conferred under Section 340 of the Code of Criminal Procedure.
11. The judgment of the Division Bench of the Patna High Court in the case of Uma Shankar reported in 1975 Cr. L.J. 1954 Patna (DB) referred to by the petitioners, is not applicable to the facts of the present case, in as much as, in the aforesaid case it was observed that the Magistrate before whom the complaint for action under Section 476 Cr.P.C. 1988 (corresponding to Section 340 Cr.P.C. 1976) was filed, had already initiated action by conducting enquiry and therefore he could not have transferred the proceedings and the transferee court had no power, therefore, to file complaint on the basis of the enquiry initiated by his predecessor Magistrate.
12. In the instant case as noted above, though the complaint under Section 340 Cr.P.C was filed by the judgment debtor, but the presiding officer before whom the proceedings for execution proceedings was pending, did not initiate any action whatsoever under the provisions of Section 340 Cr.P.C. The transferee court therefore had power to consider the application filed by the judgment debtor and to initiate action by conducting enquiry and filing a complaint under the provisions of Section 340 Cr.P.C. if he had found a prima facie case for filing a complaint against the accused persons.
13. The next issue as raised by the petitioner is directed against the impugned order whereby the petitioners' prayer for discharge was rejected by the court below. It is argued by the learned Counsel for the petitioner that even from reading of the entire allegations in the complaint petition as filed by the Sub Judge III, no offence whatsoever is made out against the petitioner.
14. The gist of the allegations in the complaint petition (Annexure 4) are that the petitioners had made false and misleading statement on affidavit in the proceedings with an intention to misguide the court and with the dishonest intention to obtain order in their favour from the court and further in collusion with the court staff who were in charge of the judicial records of the proceedings, an order of delivery of possession was obtained surreptitiously by putting even the Presiding Officer of the court in dark. Earlier, in the writ petition filed by the petitioners against the order of cognizance, this Court had considered and held that the above allegations prima facie make out a case for cognizance of the offences against the accused persons. Whether the statements made by the petitioners in the execution proceedings by way of affidavit were false and misleading and were made with intention to influence the mind of the court and to act upon it can be decided only after adducing evidence at the trial. Further question as to whether the order dated 27.3.2008 to issue the warrant for the delivery of possession came to be actually recorded by the Presiding Officer on that date after hearing the parties concerned or whether such order in the judicial record was inserted surreptitiously by the clerk of the court in charge of the records, with the connivance of the petitioners, without the knowledge of the Presiding Officer of the court, would again be matters which could be decided only after adducing evidence in course of trial.
15. The provision of Section 245 Cr.P.C. no doubt vests power in the Magistrate for discharging the accused at any stage of the proceedings, such power can be exercised only after the Magistrate, for reasons to be recorded, considers the charges to be groundless. The basic criteria for determination is whether the allegations against the accused as made out which, if un-rebutted, would warrant his conviction.
16. In the earlier writ petition filed by the petitioners against the order of cognizance, it has already been observed that the allegations as contained in the complaint petition, do make out prima facie case for the offences. Therefore, if the allegations remain unrebutted, it may entail conviction of the accused. Rebuttal of the allegations can be made only in course of trial when the accused persons would avail opportunity to adduce evidence on their behalf.
In the light of the above facts and circumstances of the case, the petitioners, in my opinion, have not made out a case for their discharge.
17. I do not find any illegality or infirmity in the impugned order. There being no merit in this revision application, it is hereby dismissed.