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2018 DIGILAW 995 (PAT)

Satendra Singh @ Daldal Singh v. State of Bihar

2018-07-09

SANJAY PRIYA

body2018
JUDGMENT : Sanjay Priya, J. This application under Section 482 of the Code of Criminal Procedure has been filed for quashing the order dated 16.05.2009 passed by the Judicial Magistrate, 2nd class, Patna, in Complaint Case No.862-C of 2009 by which the learned Magistrate after holding enquiry has found prima facie case against the petitioners for the offence under Section(s) 379, 323, 504 Indian Penal Code. 2. Notice was issued to the Opposite Party No.2, which has validly been served upon the Opposite Party No.2, but none has appeared on behalf of the Opposite Party No.2. 3. Counsel for the petitioners submits that it is totally a civil dispute. First Appeal No.97 of 2002 as well as First Appeal No.349 of 2003 are pending between the parties. These petitioners have been falsely implicated in this case only because they have challenged the decree passed in T.S. No.384 of 1996 before this Hon'ble Court by filing First Appeal No.97 of 2002 and First Appeal No.349 of 2003. The Complainant has alleged in the Complaint that the land, as mentioned in the Complaint Petition, was allotted in Final Decree prepared in T.S. No.384 of 1996 and his name has also been mutated. When the Complainant went to see the plot for harvesting lentil (Masoor) then he saw that the accused persons were taking away the crops. The Complainant asked the accused persons to stop cutting the crop. Then, accused persons abused and assaulted him. 4. Counsel for the petitioners has submitted that Title Suit No.384 of 1996 was filed by the Complainant for partition of 1/3rd share. Both the parties are co-sharer. Aforesaid suit was decreed in favour of the Complainant by judgment and decree dated 25.01.2002. Aforesaid judgment has been challenged by the petitioner Nos.1 to 3 in the Hon'ble High Court vide First Appeal No.97 of 2002. During pendency of aforesaid First Appeal No.97 of 2002, the Complainant filed a petition for preparation of final decree upon which Advocate Commissioner was appointed and on the basis of report of the Advocate Commissioner final decree was prepared. Thereafter, petitioner Nos.1 to 3 have preferred First Appeal No.349 of 2003 against the final decree passed by the Court below. 5. In such circumstances, this Court is of the view that civil suit is pending between the parties. Both parties are co-sharer of the property. Thereafter, petitioner Nos.1 to 3 have preferred First Appeal No.349 of 2003 against the final decree passed by the Court below. 5. In such circumstances, this Court is of the view that civil suit is pending between the parties. Both parties are co-sharer of the property. The instant case has been filed by the Complainant to wreak vengeance because of pendency of civil suit between the parties. 6. There is general and omnibus allegation levelled against the petitioners in the Complaint Petition. 7. In view of such, continuance of criminal proceeding against the petitioners will be mere harassment and abuse of process of Court. 8. Accordingly, impugned order dated 16.05.2009 passed by the Judicial Magistrate, 2nd class, Patna, in Complaint Case No.862-C of 2009 along with entire criminal proceeding against the petitioners is hereby quashed. 9. This application is, accordingly, allowed.