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2013 DIGILAW 237 (PAT)

Ram Bachan Singh v. State of Bihar

2013-02-21

JYOTI SARAN

body2013
ORDER 1. Heard Mr. Ramchandra Singh, learned counsel appearing on behalf of the petitioners and Mr. Ravi Shankar Sahai, learned counsel appearing on behalf of the complainant-opposite party. 2. This application under Section 482 of the Code of Criminal Procedure has been filed for quashing the order dated 20.05.0211 passed by learned Additional Sessions Judge-FTC-II, Rohtas at Sasaram in Criminal Revision No. 379 of 2004 thereby dismissing the Criminal Revision filed by the petitioners questioning the order dated 14.10.2004 and thus affirming the order taking cognizance dated 14.10.2004 passed by Shri P.N. Maurya, learned Judicial Magistrate-1st class-Rohtas at Sasaram in a case arising from Complaint Case No. 1239 of 2003, whereby the learned Magistrate has been pleased to take cognizance of the offence punishable under Sections 147, 148 and 379 of the Indian Penal Code against the petitioners. The substance of allegation as set out in the complaint charges these petitioners of entering into the field of the complainant and of having committed theft of his paddy crops. Mr. Singh, learned counsel for the petitioner has, with reference to the statement made in paragraph-8 of this application stated that the complainant is none other than the own nephew of the petitioner and who alongwith his father had filed a Title Suit No. 464 of 2003 for declaration of title and possession which is pending consideration in the court of Sub Judge-1, Rohtas at Saaram seeking partition of the property inclusive of the land in question. It is thus submitted that where a suit for partition between the parties is yet pending consideration in the court below, there cannot be allegation of theft against the co-sharer. 3. Mr. Ravi Shankar Sahai, learned counsel appearing on behalf of the complainant, despite his endeavour could not resist this contention made by the petitioner. In fact it has also been admitted by Mr. Sahai that the survey entry stands in the name of the petitioners. Considering the submissions aforesaid, it is but obvious that the complainant having filed the Title Suit for partition against these petitioners and others has instituted the complaint case with ulterior motives and which is sufficient indication of the abuse of the process of the court and such prosecutions cannot be allowed to be continued. A co-sharer cannot commit theft in a field which continues to be joint. A co-sharer cannot commit theft in a field which continues to be joint. The matter yet pending for partition before the Civil Court, the institution of the criminal case is harassing and in the nature of a malicious prosecution. Having observed as such, the continuation of the criminal case would be an abuse of the process of the court. In consequence the order dated 20.05.2011 passed in Criminal Rev. No. 379 of 2004 together with the order taking cognizance dated 14.10.2004 passed in Complaint Case No. 1239 of 2003 and the entire proceedings arising therefrom are quashed and set aside. This application is allowed.