Case Facts:
IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Miscellaneous No.10754 of 2011 ====================================================== 1. Urmila Kumari W/O Mithilesh Kumar R/O Village- Bhokalapur, P.S.- Hilsa, District- Nalanda 2. Mithilesh Kumar S/O Late Sheo Nandan Prasad R/O Village- Bhokalapur, P.S.- Hilsa, District- Nalanda .... .... Petitioner/s Versus 1. The State Of Bihar 2. Shailesh Kumar S/O Late Bangali Prasad R/O Village- Chak Hajari, P.O.- Kaliya Chak, P.S.- Hilsa, District- Nalanda, Presently Residing At Sinha Market, Main Road Hilsa, P.S.- Hilsa, District- Nalanda .... .... Opposite Party/s ====================================================== Appearance : For the Petitioner/s : Mr. Kumar Alok, Adv. For O..No.2 : M/s. Shanti Kumar & Dhananjay Kumar, Advs. ====================================================== CORAM: HONOURABLE MR. JUSTICE SHIVAJI PANDEY ORAL ORDER 5 04-12-2012 Heard learned counsel for the petitioners, for the State and for O.P.No.2. In this case, petitioners are challenging the order dated 10th February 2011 passed by the Chief Judicial Magistrate, Hilsa, Nalanda by which the court below has taken cognizance under [STATUTE] , arising from Hilsa P.S.Case No. 424 of 2010. It appears that the complainant filed Complaint Case No. 1021C of 2010 where allegation has been made that T.S.No. 35 of 1998 for partition of joint family property was/is pending in the court of Sub-Judge, Hilsa where the land in dispute is also Patna High Court Cr.Misc. No.10754 of 2011 (5) dt.04-12-2012 2 / 4 2 subject matter of the partition suit, situated at the Main Road, Hilsa. It has been alleged that the house and shop were constructed by the ancestor and some houses were under possession of the defendants of the Title Suit but the family partition was not done by metes and bounds. It has been alleged that the accused Nos. 1 & 2 by sale-deed dated 3rd August 2010 and 27th June 2001 sold the property in favour of accused Nos. 3 & 4, who are petitioners in this case. It has further been alleged that during the pendency of the partition suit, the accused Nos. 1 & 2 illegally sold the property and when the complainant asked the petitioners on 28th November 2010 with regard to the purchase of the land whereupon all the accused persons hurled abuses and also assaulted him with slaps and fists. The case was sent for Police investigation as provided [STATUTE] (3) Cr.P.C. which was registered as Hilsa P.S.Case No. 424 of 2010 under aforesaid sections. Police after investigation submitted charge-sheet and on that basis the court has taken cognizance, as aforesaid. Counsel for the petitioners submits that so far the dispute with regard to sale of property during the period of partition suit, it is primarily a civil dispute and with regard to the allegations made in Para-8 of the complaint petition where allegation of abuse and assault has been mentioned, does not Patna High Court Cr.Misc. No.10754 of 2011 (5) dt.04-12-2012 3 / 4 3 disclose as to who had given the assault and abuses but only general and omnibus allegation has been made. Petitioner No.1 is lady who is not supposed to give abuses and give slap but she has also been implicated in this case. Basically it is a dispute between the two agnates relating to subject matter of land merely by selling the property which was under their possession cannot be termed as criminal offence. Counsel for the O.P. No.2 has submitted that there may be a civil dispute pending between the parties but that does not mean that it is not a case of criminal nature, specifically looking to the allegation in Para-8 of the complaint petition. Having considered the rival contention of the parties basically the allegation made with regard to sale of property during the pendency of the suit as has been held by the Hon’ble Supreme Court in 2009(4) PLJR 1999 (SC) (Md. Ibrahim v. State of Bihar) cannot be criminal offence rather the same is basically and primarily civil dispute. There the Hon’ble Court has considered basically this aspect of the matter and the Hon’ble Supreme Court has held that even if a person sells the property beyond his share that will not make him liable for criminal offence. In the aforesaid situation, the Hon’ble Supreme Court held the dispute as civil wrong the Hon’ble Supreme Court was Patna High Court Cr.Misc. No.10754 of 2011 (5) dt.04-12-2012 4 / 4 4 pleased to interfere with the matter. In this case also, the sale of land primarily is a civil dispute and the case is covered by that judgment and, as such, the offences alleged are not made out and with regard to the allegation of assault, though allegation has been made in the complaint petition but when the Police was asked to make investigation, there the complainant has not made any allegation with regard to assault where he had specifically stated that they were threatening assault. So far the allegation of abuse, general and omnibus have been made without specification as to who abused. This Court is of the view that primarily it is a dispute of civil nature by way of exaggeration some statements made with a view to make civil dispute as criminal offence. This Court is of the view that in stead of pursuing the criminal case, the complainant should take proper steps in civil suit for partition. This Court is of the view that the order of cognizance will be nothing but an abuse of process of the court. Accordingly, the order impugned is quashed and this petition is allowed. Jay/- (Shivaji Pandey, J)

Applicable IPC Section: 323

Statute Text:
Section 323 of the Indian Penal Code. Voluntarily causing hurt. Whoever, except in the case provided for by section 334, voluntarily causes hurt, shall be punished with imprisonment of either description for a term which may extend to one year, or with fine which may extend to one thousand rupees, or with both.