JUDGMENT
Radha Mohan Prasad, J.
1. In this miscellaneous application, prayer is for quashing the order dated 17.1,2002 passed by the Judicial Magistrate, First Class, Siwan in complaint case, bearing No. C 1137/2001, whereby and whereunder cognizance has been taken against the petitioners under Sections 147, 148, 149, 323. 379 and 427, IPC and Section 25 of the Arms Act and summonses have been directed to be issued.
2. The short facts giving rise to the present case are that opposite party No. 2 is the complainant, who alleged in the complaint petition that his father had purchased 3 kathas 5 dhurs of land appertaining to khata No. 229, plot No. 44 by a registered sale deed. On the same plot, some trees were standing which were being utilized by him. it is alleged that on 20th August, 2001, the petitioners variously armed went over the land and cut green mango tree, one dry mango tree and one mahua dry tree to which the complainant objected, whereunder the petitioner No. 1 tried to assault him with farsa but he escaped and other accused persons threatened to kill him but he fled away. It is further alleged that the petitioners also assaulted him with fists and legs and took away one trailer wood logs amounting to Rs. 30,000/-. According to the complainant, he went to the Police Station to lodge a case, but the police refused to institute a case.
3. According to the learned counsel for the petitioner, the entire dispute is with respect to the aforementioned plot No. 44 of khata No. 229, for which a proceeding under Section 145, Cr PC was initiated and also title suit No. 198 of 1988 was filed by some persons, including the father of opposite party No. 2. According to him, after examining the witnesses of both the parties and other relevant documents, the suit was dismissed, vide judgment dated 3.1.1994, in which the suit was held to be not maintainable and, further, that the petitioner No. 1 was in possession of the disputed land. In the year 1966-97, in case No. 98 rent fixation was done in favour of petitioner No. 1 and correction order was issued mentioning jamabandi Nos. 356 and 403 and since then the rent receipts are being granted to petitioner No. 1 on payment of revenue rent.
4. Thereafter, one Allauddin Sai filed miscellaneous case No. 8785-86 for correction of jamabandi which after obtaining reports from the Halka Karamchari and Amin and holding inquiry was dismissed and the jamabandi in the name of petitioner No. 1 was confirmed. According to him, a proceeding under Section 144, Cr PC was also initiated with respect to the land in question, which was converted into a proceeding under Section 145, Cr PC vide case No. 80/85 which was finally dropped on the ground that title suit was pending in the Civil Court for the same land. Again in the year 2001 on the recommendation of the police proceeding under Section 144, Cr PC was initiated against both the parties and in the said proceeding, opposite party No. 2 was examined as witness but he never claimed that he has any right and title over the land in question. However, in view of the fact that first appeal No. 288/94 is pending in this Court against the judgment of the Civil Court, proceeding under Section 145, Cr PC was dropped. A copy of the deposition of opposite party No. 2 in the said proceeding has been brought on record as Annexure-9 along with the supplementary affidavit filed on behalf of the petitioners.
5. Despite the service of notice of the said supplementary affidavit, no rejoinder has been filed.
6. Perusal of the evidence of opposite party No. 2 shows that he had admitted that the cultivation is to be done by the second party over the disputed land. He was not party to the said proceeding. He also admitted that he had no concern with the cultivation over the disputed land.
7. Learned counsel for the petitioner submitted that the plaintiff-opposite party having lost in the suit has filed a complaint petition against the petitioners at the instance of Kamruddin, who lost in the proceeding under Section 144, Cr PC mala fide for wreaking vengeance against the accused and with a view to spite him due to private and personal grudge. Learned counsel further submitted that in the case of State of Haryana v. Bhajan Lal, reported in 1992 SC 604, the Supreme Court has formulated seven categories where the High Court may in exercise of powers under Article 226 or under Section 482 of the Cr PC interfere in proceedings relating to cognizable offences to prevent abuse of the process of any Court or otherwise to secure the ends of justice and one of the criteria is where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge. Thus, according to him, in the facts and circumstances aforementioned, it is a fit case for interference by this Court to prevent abuse of the process and to secure the ends of justice.
8. Learned counsel for opposite party No. 2, however, has submitted that the complaint specifically makes out a case for the offences for which cognizance has been taken and at this stage it will not be proper to go into the question as to whether the complainant had any concern with the land in question.
9. I am unable to accept the said submission of the learned counsel for the opposite party No. 2. The entire complaint is related with the land in question. It is not in dispute that the complainant-opposite party No. 2 in his deposition in the proceeding under Section 145, Cr PC has denied any connection with the said land so much so that in his deposition he stated that the second party Kamruddin used to cultivate the said land and he had no concern with the said cultivation of the land.
10. In that view of the matter, this Court, in the facts and circumstances aforementioned finds that this criminal proceeding has been instituted mate fide for wreaking vengeance against the accused persons.
11. Accordingly, the miscellaneous application is allowed and the impugned order taking cognizance is quashed.