Dismissed

Sushil Kumar Chhabra And Anr. v. State of Jharkhand And Anr.

Jharkhand HC1 May 2019Cr.M.P./1408/2010

Case brief

AI extract

What is this about?

Petitioners sought quashing of criminal proceedings for alleged offences including theft and criminal breach of peace arising during execution of an eviction decree. The court held the complaint disclosed offences and dismissed the petition, directing that fact disputes be raised at the trial stage.

What did the court decide?

Criminal miscellaneous petition dismissed; petitioners allowed to raise pleas before court below.

Sushil Kumar Chhabra And Anr. Vs State of Jharkhand And… — Cheque Dishonour | Jharkhand HC (2019)

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IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr. M. P. No.1408 of 2010

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Sushi Kumar Chhabra. 2. Sunil Kumar Chhabra. .......... Petitioners. -Versus1. The State of Jharkhand. 2. Megh Narain Singh. .......... Opp. Parties. ----- CORAM : HON’BLE MR. JUSTICE RAJESH SHANKAR ----For the Petitioners : Mr. Deepak Kumar, Advocate For the State : APP For O.P. No.2 : Mr. Y. N. Mishra, Advocate ----- Order No.09 Date: 01.05.2019

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The present criminal miscellaneous petition has been filed for quashing of the entire criminal proceeding arising out of Complaint Case No.682 of 2009 including the order dated 09.09.2010 passed by the Chief Judicial Magistrate, Koderma, whereby the cognizance of the offences under Sections 323, 504, 452 and 380 of the Indian Penal Code has been taken against the petitioners.

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The factual background of the case as stated in the complaint petition is that the complainant was inducted as tenant in the house of the petitioners on rent for about 50 years. Eviction Suit No.33 of 1986 was filed for eviction of the complainant which was decreed in favour of the petitioners, however, during the pendency of Execution Case No.2 of 2007, all the four accused persons in connivance with each other entered the house of the complainant on 02.11.2009 at about 7:00 a.m. by breaking open the lock and committed theft of several articles amounting to Rs.1,18,200/-. On 03.11.2009 the complainant went to the house of the accused persons and enquired about the articles, however, they told that they took possession of the house on payment of Rs.50,000/- to Nazir and got the articles removed and threatened that if any case is lodged they will fight the litigation after selling the articles so removed. It is further alleged that the complainant inspected the record of Execution Case No.2 of 2007 in the office of the Munsif, Koderma and found that there was no mentioning of seizure of the articles alleged to have been removed in course of taking possession of the house. Not only this, the complainant also came to know that after getting the order of delivery of possession, all the four accused in connivance with each other and on getting favour of

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accused no.4 by illegal means broke opened the lock of the premises hurriedly and took over possession thereof in illegal manner. As such, all the accused persons have committed offence punishable under Sections 323, 504, 452, 380, 406 and 409 of Indian Penal Code.

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The learned counsel for the petitioners submits that the decree passed in the Eviction Suit No.33 of 1986 was confirmed up to the Hon’ble Supreme Court in SLP (Civil) No.13629 of 2008 vide order dated 02.04.2009. However, the complainant did not comply the order and as such the petitioner moved the executing court for issuance of writ of delivery of possession which was allowed vide order dated 09.10.2009. The executing court again issued writ of delivery of possession on 31.10.2009 with an order to get the same effected after breaking open the lock of the suit premises because the delivery of possession could not have been effected as the suit premises was put on lock by the judgment debtor. Thus, the writ of delivery of possession was handed over to the petitioners on 01.11.2009 by the Nazir of the Civil Court after breaking open the lock of the house in presence of the witnesses. Accordingly, the Nazir submitted his report to the executing court stating that nothing was found in the house in question.

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The learned counsel for the opposite party no.2 submits that ingredients of the offences are sufficiently disclosed from the complaint itself and as such no interference is required by this Court under Section 482 of Cr.P.C. It is further submitted that the petitioners have raised disputed question of fact which cannot be decided in the present proceeding rather the plea raised by the petitioner is to be agitated before the court below.

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Heard the learned counsel for the parties and perused the materials available on record. Admittedly, the decree of eviction from the tenanted premises was passed against the complainant and the said order was confirmed up to the Hon’ble Supreme Court. On the basis of the report of Nazir, the executing court passed the order dated 31.10.2009 for delivery of the possession in favour of the petitioners by breaking open the lock of the tenanted premises. It is contended by the petitioners that in execution of the said order, the lock of the premises in question was broken and they were put in possession

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thereof. However, the allegation of the opposite party no.2 is that while executing the order of delivery of possession, the Nazir of the Civil Court in connivance with the petitioners removed the articles lying in the said premises worth Rs.1,18,200/- and did not prepare the inventory of the same. It is further alleged by the opposite party no.2 that when he enquired about the articles from the petitioners, they used filthy language and also assaulted him. The statements of three enquiry witnesses were also recorded during the enquiry under Section 202 Cr.P.C., who supported the case of the opposite party no.2. The learned court below found a prima facie case under Sections 323, 504, 452 and 380 of the Indian Penal Code against the petitioners and took cognizance of the said offences against them.

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In the case of Binod Kumar v. State of Bihar reported in (2014)

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10 SCC 663, the Hon’ble Supreme Court has held as under:-

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“ 8. In proceedings instituted on the criminal complaint, exercise of the inherent powers to quash the proceedings is called for only in case where the complaint does not disclose any offence or is frivolous. It is well settled that the power under Section 482 CrPC should be sparingly invoked with circumspection, it should be exercised to see that the process of law is not abused or misused. The settled principle of law is that at the stage of quashing the complaint/FIR, the High Court is not to embark upon an enquiry as to the probability, reliability or the genuineness of the allegations made therein.”

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The factual plea taken by the petitioners that no article was found in the said premises is to be taken up at an appropriate stage of the proceeding. The uncontroverted allegations levelled against the petitioners prima facie disclose the offences and as such no interference is warranted against the impugned order passed by the court below in exercise of the power under section 482 of Cr.P.C. I, therefore, do not find any infirmity in the order of cognizance passed by the learned court below.

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This petition is, accordingly, dismissed. However, the petitioners are at liberty to take all available plea with them before the court below at an appropriate stage, which shall be dealt with in accordance with law.

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(Rajesh Shankar, J.)

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Sanjay/

Sushil Kumar Chhabra And Anr. v. State of Jharkhand And Anr.

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Sushil Kumar Chhabra And Anr. v. State of Jharkhand And Anr.

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