Shakila Khatoon, and ors. Vs. the State of Bihar. - Court Judgment

Excerpt:
[markandey katju ; gyan sudha misra, jj.] - code of civil procedure (c.p.c.) 1908 - section 151 - saving of inherent powers of court -- this appeal has been filed against the impugned judgment and order dated 21.5.2004 passed by learned single judge of the patna high court in civil revision no. 945 of 2002. while the aforesaid partition suit was pending, the defendants smt. pushpa biswas and apurva kumar biswas executed a general power of attorney on 31.7.1992 in favour of umesh chandra and dr. sanjeev kumar mishra and the same was registered. pushpa biswas and apurva kumar biswas cannot be allowed to say that their own act of signing the compromise petition was collusive and fraudulent. the high court has observed that defendants nos. 2 and 2a viz., pushpa biswas and apurva kumar biswas should have consulted the power of attorney dr. sanjeev kumar mishra before signing the compromise petition. the principal is not bound to consult his attorney before signing a compromise petition. the impugned judgment and order of the high court is set aside and the order dated 7.6.2002 of the learned subordinate judge-v, bhagalpur is restored.1. heard learned counsel for the petitioners, learned counsel for the opposite party no.2 and learned additional public prosecutor for the state.2. this is an application under section 482 of the criminal procedure code seeking quashing of the order dated 28.01.2001 passed in complaint case no. 1934/2001 tr. no. 1114/2002, taking cognizance for the offence under sections 120b, 420, 467, 468 of the indian penal code and order dated 16.11.2005 passed by 4th additional sessions judge, (f.t.c.) gopalganj, dismissing criminal revision no. 101/2002/19/2005.3. undisputedly, the complainant opposite party no.2 has filed the complaint case with assertions that there is a will in his favour with respect to certain lands including subject matter of the proceeding here which subsequently stands covered in a registered deed of gift in favour of some of the accused persons, when it came to knowledge of the complainant on his persuasion initially the accused persons agreed to execute a deed of relinquishment in his favour but finally refused. after recording statement of complainant and witnesses on inquiry, the court below took cognizance which practically stands affirmed by a revisional court who dismissed the revision as not maintainable, giving rise to instant application here.4. after some arguments and cross arguments, members of the bar are in agreement that effective remedy to decide the controversy between the parties is civil court and averments made in the complaint petition do not attract commission of any criminal offence. it is further pointed out that one title suit no. 446/2000 is already pending, wherein subject matter of the proceeding is also there. thus, learned counsels are further in agreement that criminal proceeding before the court below must not proceed at the same time, right of either of the parties to agitate their respective claims and get the same adjudicated by the competent civil court do not affected.5. with the above observation, proceeding before the court below in complaint case is hereby quashed; the parties are at liberty to agitate their claims before the civil court.

Judgment:
1. Heard learned counsel for the petitioners, learned counsel for the opposite party no.2 and learned Additional Public Prosecutor for the State.

2. This is an application under section 482 of the Criminal Procedure Code seeking quashing of the order dated 28.01.2001 passed in Complaint Case No. 1934/2001 Tr. No. 1114/2002, taking cognizance for the offence under sections 120B, 420, 467, 468 of the Indian Penal Code and order dated 16.11.2005 passed by 4th Additional Sessions Judge, (F.T.C.) Gopalganj, dismissing Criminal Revision No. 101/2002/19/2005.

3. Undisputedly, the complainant opposite party no.2 has filed the complaint case with assertions that there is a will in his favour with respect to certain lands including subject matter of the proceeding here which subsequently stands covered in a registered deed of gift in favour of some of the accused persons, when it came to knowledge of the complainant on his persuasion initially the accused persons agreed to execute a deed of relinquishment in his favour but finally refused. After recording statement of complainant and witnesses on inquiry, the court below took cognizance which practically stands affirmed by a Revisional Court who dismissed the Revision as not maintainable, giving rise to instant application here.

4. After some arguments and cross arguments, members of the Bar are in agreement that effective remedy to decide the controversy between the parties is civil court and averments made in the complaint petition do not attract commission of any criminal offence. It is further pointed out that one Title Suit No. 446/2000 is already pending, wherein subject matter of the proceeding is also there. Thus, learned counsels are further in agreement that criminal proceeding before the court below must not proceed at the same time, right of either of the parties to agitate their respective claims and get the same adjudicated by the competent civil court do not affected.

5. With the above observation, proceeding before the court below in Complaint Case is hereby quashed; the parties are at liberty to agitate their claims before the civil court.