IN THE HIGH COURT OF JUDICATURE AT PATNA
Cr.Misc. No.20187 of 2007
(1) Subhash Singh, son of Late Shyam Bihari Singh, village Karhia, PS Rajnagar, Dist.
Madhubani.
(2) Shibu Singh, son of Bitan Singh, village Bharia Bisanpur, PS Raj Nagar, Dist.
Madhubani.
(3) Tulla Kant Jha @ Kamal Narayan Jha, son of Late Achambhit Jha, village Mkuma, PS
Khajauli, Dist. Madhubani - Petitioners.
Vs.
(1) The State of Bihar,
(2) Ram Narayan Sah, son of Late Panch Lal Sahu, village Karha (Tola Kasiyana), PS Raj
Nagar, District Madhubani - Oipp. Parties.
...
For the petitioners – Mr. Shailendra Kumar Singh and Mr. Ratnakar Jha, Advocates.
For the State – Mr.Jharkhandi Upadhyay, A.P.P.
…
5 4.2.2011 Despite the fact that this court had earlier postponed
the case for appearance of opposite party no.2, no body appears on
his behalf in this case.
This application has been filed against the order, dated
22.2.2007 passed in C.R. No. 180/2004 and T.R. No. 573/2007 by
which the Subdivisional Judicial Magistrate, Madhubani has
refused to discharge the petitioners for the offences alleged to have
been committed under sections 147, 323, 379 and 404 of the
Penal Code.
The allegation in the F.I.R. is that Sesham tree
standing on the plot of the complainant has been cut by the
petitioners and by doing so they resorted to abuse while gathered
at the place of occurrence with Lathi, Bhala and Pharsa. It is also
alleged that the accused had taken away Rs. 2000/- from the
complainant.
Counsel for the petitioners relies on Annexure 2, a
report by the Circle Officer which indicates that 5 Kadi of land of
2
plot no. 7644 has been encroached upon by opposite party-
complainant. It is also apparent that a suit with respect to the said
land was instituted by father of petitioner no. 1 against the
complainant Ram Narayan Sah. The suit has been decreed ex parte
in favour of the plaintiff i.e. father of petitioner no.1 in which it
has been directed that the defendant i.e. complainant should vacate
the possession of the land and also return the value of the Sesham
tree which was cut during the pendency of the suit.
Taking into consideration that there is a civil dispute
and a decree in favour of the petitioners, it cannot be said that
petitioners have committed theft by cutting Sesham tree. As far as
allegation regarding taking away of Rs. 2000/- from the pocket of
the complainant is concerned, this court finds that in a dispute of a
civil nature, allegations of these types are more ornamental in
nature rather than true. The main offence is with respect to cutting
of the Sesham tree.
In view of the aforesaid fact I find that the petitioners
having a decree in their favour with respect to the land in question
cannot be prosecuted for the offence of cutting Sesham tree.
I accordingly quash the order, dated 22.2.2007 passed
by the Subdivisional Judicial Magistrate, Madhubani. This
application is allowed.
haque ( Sheema Ali Khan, J.)