JUDGMENT Hon’ble Vinod Prasad, J.—Smt. Gyan Mati has invoked inherent jurisdiction of this Court under Section 482 Cr.P.C. with the prayer that proceedings of Complaint Case No. 86 of 2008 (Jawahar Lal v. Jai Ram Yadav), under Sections 147, 352, 382, 504, 506 I.P.C., P.S. Belipar, District Gorakhpur, pending in the Court of J.M. Court No. 21, Gorakhpur be quashed. Interim prayer is for stay of the trial of the aforesaid case pendent lite. 2. Complainant respondent No. 2, Jawahar Lal wielded power of Judicial Magistrate, Gorakhpur by moving an application under Section 156(3) Cr.P.C. against the applicant, her husband and sons with four and five unknown persons alleging therein that applicant is trying to uproot him from the property. In such endavour, a Civil Suit bearing O.S. No. 285 of 1996, Smt. Gyan Mati v. Jawahar Lal, was also filed in Civil Court, Bansgaon, Gorakhpur, which is pending. In execution of his design on 31.8.2008 at 8 a.m. when complainant was away from his house, applicant alongwith her husband, Jai Ram Yadav accompanied with other named socio criminises and unknown persons, armed with fire-arms, bombs etc., came to the door of complainant and started cutting teak tree owned by him with axe and other cutting instruments. When Santosh Jaiswal his son tried to stop them, he was abused filthily and intimidated with dire consequences. Albeit Santosh Jaiswal was surrounded to be belaboured but providentially he escaped unhurt because of intervention of husband of village Pradhan, Ram Prasad Yadav and co-villagers Lal Ji Yadav, Ayodhya Yadav and Bhagwan Yadav and others. After cutting teak tree, accused took away its chopped woods. 3. Santosh Jaiswal endeavoured to lodge a report at P.S. Belipar but received only hollow assurances from police, who did not register his F.I.R. Even his applications to higher police officers yielded no result. Accused persons had caused damage of Rs. 50,000/-. Complainant respondent No. 9 Jawahar Lal, therefore, wielded Magistrate power under Section 156(3) Cr.P.C. on 15.10.2008 with the prayer that P.S. Belipar be directed to register his F.I.R. and investigate the offence vide Annexure-7. 4. Accused persons had caused damage of Rs. 50,000/-. Complainant respondent No. 9 Jawahar Lal, therefore, wielded Magistrate power under Section 156(3) Cr.P.C. on 15.10.2008 with the prayer that P.S. Belipar be directed to register his F.I.R. and investigate the offence vide Annexure-7. 4. Application of the applicant under Section 156(3) Cr.P.C. was treated to be a complaint and observing procedure of complaint case, Judicial Magistrate recorded statements under Section 200 (Annexure No. 8) and that of the witnesses Anil Jaiswal, (Annexure No. 9) Bhagwan Das Yadav and Santosh Jaiswal, under Section 202 Cr.P.C. Vide order dated 11.5.2009, Judicial Magistrate summoned the applicant and other accused persons vide Annexure-10 for offences under Sections 147, 352, 382, 504 and 506 IPC and fixed 26.6.2009 for their appearance. Hence, the prayer by the applicant to quash proceedings of aforesaid complaint case. 5. In this Criminal Miscellaneous Application, a counter-affidavit has been filed by respondent No. 2 to which rejoinder affidavit has also been filed by the applicant. 6. I have heard Sri Satyendra Pandey, learned counsel for the applicant as well as Sri B.K. Tripathi, learned counsel for opposite party No. 2 and learned AGA in opposition. 7. It is submitted by learned counsel for the applicant that one Ujahu son of Shiv Narain was the owner of Sikmi plot Nos. 172, 174 and 175 situated in Village Bistauli, Khurd. The said plots were recorded in the revenue records as dih abadi. Ujahu was nursed by the applicant and her family members and therefore, Ujahu executed a Will-deed in favour of the applicant. On the basis of said Will, name of the applicant was mutated over the said plots after death of Ujahu. Khatauni Annexure No. 1 contains recitals in this respect. Since respondent No. 2 started creating trouble in peaceful possession of the applicant over the aforesaid plots, she instituted Civil Suit O.S. No. 285 of 1996 on 30.3.1996 before Civil Judge (Senior Division), Bansgaon, Gorakhpur vide plaint Annexure No. 2 to this Criminal Miscellaneous Application. Relief sought in the aforesaid plaint was for permanent injunction from interfering in peaceful possession of plaintiff’s over the property in question. In plot No. 172 stood disputed tree, which had fallen down in the month of July during thunder storm. Relief sought in the aforesaid plaint was for permanent injunction from interfering in peaceful possession of plaintiff’s over the property in question. In plot No. 172 stood disputed tree, which had fallen down in the month of July during thunder storm. Being owner of the said tree, applicant moved an application before S.D.M. Bansgaon on 20.8.2008, Annexure No. 3 seeking his permission to cut the tree and carry its woods. On the said application, the same day, S.D.M. ordered S.O. police station Belipar to look into the matter and hand over the woods to the entitled persons. In pursuance of the order passed by Sub Divisional Magistrate, S.O. P.S. Belipar made Smt. Badami Devi custodian of the woods vide Annexure No. 4. Revenue Inspector and Area Lekhpal made inquiry into entitlement of possession vide Annexure No. 5 and came to the conclusion that applicant is entitled, as legal owner of the said woods and, therefore, they submitted their report to the concerned authorities vide Annexure No. 5. It was specifically mentioned that the fallen tree was standing in plot No. 172 and since Ujahu had executed a will favouring Smt. Gyan Mati, applicant is entitled for possession of the woods of the said uprooted tree as its owner. After receipt of those reports S.D.M., Bansgaon issued subpoena to rival claimants to appear before him and substantiate their claims, but in pursuance of those notices, none of the parties appeared before him and, therefore, on 12.12.2008, S.D.M. Bansgaon ordered for release of chopped woods in favour of applicant vide Annexure No. 6 to this Criminal Misc. Application. 8. It was submitted by applicant’s counsel that in above scenario, entire prosecution launched by respondent No. 2 and the summoning order of the applicant is bad in law as no offence can be said to have been committed by the applicant and other accused persons. It was submitted that if the applicant is claiming rightful ownership of a property of which she was held to be entitled to no offence can be said to have been committed by her. It was further submitted that in the instant complaint case, no revenue record etc. was produced by complainant respondent No. 2 to support his claim that uprooted teak tree belonged to him. It was further submitted that in the instant complaint case, no revenue record etc. was produced by complainant respondent No. 2 to support his claim that uprooted teak tree belonged to him. It was contended that mere ipse dixit of respondent No. 2 and his witnesses does not make out any offence and the entire prosecution deserves to be quashed especially in view of the fact that paragraph Nos. 3 to 17 of this Criminal Misc. Application, which narrates the incident, passing of various orders mentioned above have not been disputed by respondent No. 2 in his counter-affidavit. Submission was concluded by pleading that this Criminal Misc. Application be allowed and prosecution of aforesaid complaint case be quashed. 9. Learned counsel for the respondent No. 2, on the other hand, contended that the will alleged to have been executed by Ujahu favouring applicant was a sham document as Ujahu had expired way back in 1921 and, therefore, applicant cannot take benefit of that will consequently, she has committed the offence. He further submitted that at this stage only the allegations levelled by complainant respondent No. 2 has to be considered and, therefore, this Criminal Misc. Application being bereft of merits be dismissed. 10. I have considered rival contentions and have gone through various annexures and the pleadings of rival contesting sides in affidavit, counter-affidavit and rejoinder affidavit. What is not disputed is that Ujahu was the owner of Sikmi Plot Nos. 172, 174 and 178. Admittedly, there was a will, which was executed by Ujahu. The genuineness of the will is sub-judice in Civil Court in O.S. No. 285 of 1996, a suit filed by the applicant Smt. Gyan Mati. In the said suit she had prayed for injuncting the other side from interfering in her peaceful possession. It is regrettable that the said suit is still pending and could not be decided even after a gap of 14 years. However, the fact remains is that the pendency of the civil suit preferred by the applicant is not in dispute. Applicant is claiming rightful ownership of the property in question. It is also not disputed that fallen teak tree was standing in Plot No. 172, which originally belonged to Ujahu. However, the fact remains is that the pendency of the civil suit preferred by the applicant is not in dispute. Applicant is claiming rightful ownership of the property in question. It is also not disputed that fallen teak tree was standing in Plot No. 172, which originally belonged to Ujahu. In such a view, when applicant is claiming rightful ownership and had sought injunction from the Civil Court and is litigating there, no offence can be said to be made out as in her estimation, she was the real owner and there was total absence of mens rea on her part. For making out on offence, means rea is an essential ingredient. In the present set of facts the same is absent. If a person is claiming rightful ownership, she could not be alleged to have committed theft of her own property. Respondent-complainant has admitted in his counter-affidavits various facts pleaded by the applicant in his affidavit, which includes the fact of moving application by the applicant before the Revenue Authority to permit her to cut the tree, handing over of the woods to her. Respondent No. 2 did not appear before Sub-Divisional Magistrate to lay his rightful claim and, therefore, S.D.M., Bansgaon ordered handing over of the woods of the fallen tree to the applicant. In view of the above discussed facts, neither there was an unlawful assembly nor the accused persons had trespassed into the landed property of any other person nor they have caused any annoyance or intimidation. In such a view, no offence under Sections 147, 352, 382, 504, 506 I.P.C. is made out against he applicant and her other associates. Complainant-respondent No. 2 himself was not a witness of the incident. According to his case, incident occurred with Santosh Jaiswal but it is a very queer that Santosh Jaiswal had not filed the complaint. If the incident had occurred at all Santosh Jaiswal should have preferred the complaint. Moreover, as has been discussed above, the tree has been handed over to the applicant Smt. Gyan Mati under the orders of the Sub-Divisional Magistrate, which order has not been challenged as yet. In my humble opinion, no offence can be alleged to have be made out at all against the applicant and her entire prosecution is nothing but abuse of the process of Court, which is writ large on the facts and circumstances of the case. In my humble opinion, no offence can be alleged to have be made out at all against the applicant and her entire prosecution is nothing but abuse of the process of Court, which is writ large on the facts and circumstances of the case. 11. Concluding discussion, I allow this Criminal Misc. Application and quash prosecution of Complaint Case No. 86 of 2008 (Jawahar Lal v. Jai Ram Yadav), under Sections 147, 352, 382, 504, 506 I.P.C., P.S. Belipar, District Gorakhpur pending before J.M., Court No. 21, Gorakhpur. This Criminal Misc. Application is allowed as above. ————