Case Facts:
Patna High Court Cr.Misc. No.25035 of 2010 (5) dt.08-10-2012 IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Miscellaneous No.25035 of 2010 ====================================================== 1. Shankar Deo Gupta 2. Shambhu Prasad 3. Anil Prasad All sons of Late Dhanushdhari Sah 4. Munna Yadav, S/O-Doman Rai All are resident of village Nayagaon, P.S.-Piprahi, District- Sheohar .... .... Petitioner/s Versus 1. The State Of Bihar 2. Shakuntla Gupta, W/O-Late Suresh Prasad resident of village- Nayagaon, P.S.-Piprahi, District-Sheohar .... .... Opposite Party/s ====================================================== Appearance : For the Petitioner/s : Mr. Arun Kumar Md. Hussamuddin Azad For the Opposite Party/s : Md. Anis Akhtar For the State :- Dr. M.N. Jha (A.P.P.) ====================================================== CORAM: HONOURABLE MR. JUSTICE HEMANT KUMAR SRIVASTAVA ORAL ORDER 5 08-10-2012 Learned counsel for the petitioners is permitted to make necessary correction in his application within course of the day. Heard learned counsel for the petitioners, learned counsel for Opposite Party No. 2 as well as learned Additional Public Prosecutor for the State on the point of admission and in my view, this petition can be disposed of on admission stage itself. Petitioners have prayed for quashing the orders dated 06.08.2007 and 01.12.2008 passed by learned Sub Divisional Judicial Magistrate, Sheohar at Sitamarhi by which and Patna High Court Cr.Misc. No.25035 of 2010 (5) dt.08-10-2012 whereunder he has taken cognizance and framed charges under [STATUTE] against the petitioners respectively. The brief fact, which lies to file this quashing petition, is that Opposite Party No. 2 lodged Piprahi P.S. Case No. 100 of 2006 for the offences punishable under [STATUTE] against the petitioners and three others on the allegation that they cut two Shisham trees. The police investigated the aforesaid case and after due investigation police submitted final form showing the mistake of fact but learned Sub Divisional Judicial Magistrate differed with the findings of the police and took cognizance for the offences under [STATUTE] against the petitioners and three others vide impugned order dated 06.08.2007 and asked the petitioners to face trial. Later on, learned court below framed charges against the petitioners for the offences punishable under [STATUTE] . It is not out of place to mention here that before framing of the charge, co-accused Ram Naresh Sah and two others challenged the impugned order dated 06.08.2007 before this Court in Cr. Misc. No. 53386 of 2007 and another Bench of this Court having heard both the parties quashed the impugned order dated Patna High Court Cr.Misc. No.25035 of 2010 (5) dt.08-10-2012 06.08.2007 passing order dated 14.05.2010 in respect of co- accused Ram Naresh Sah and two others. Learned counsel for the petitioners submits that informant is not an eye witness of the alleged occurrence and her statement is based on the information given by one Dharikshan Yadav but in course of investigation, aforesaid Dharikshan Yadav denied to have seen the petitioners and other accused carrying the stolen tree. It is further contended by him that having considered the aforesaid facts, another Bench of this Court came to conclusion that no case under [STATUTE] is made out and moreover, a partition suit is pending between Opposite Party No. 2 and other accused including the petitioners except petitioner no. 4 and therefore, on the aforesaid ground also the prosecution of the petitioners could not sustain in the eye of law and framing of the charge under [STATUTE] against the petitioners is nothing but only an abuse of process of the court. On the other hand, learned counsel for the Opposite Party No. 2 submitted that up till now six prosecution witnesses have already been examined and trial of the petitioners is on the verge of conclusion so, it would not be proper for this Court to interfere into the prosecution of the petitioners. It is further Patna High Court Cr.Misc. No.25035 of 2010 (5) dt.08-10-2012 contended by him that the present petition was filed in the year 2010 and charges against the petitioners were framed in the year 2008 and between framing of the charge and filing of the present petition, five prosecution witnesses had already been examined but the aforesaid facts were suppressed by the petitioners and, therefore, this petition should be dismissed on admission stage itself. Admittedly, on same set of evidence informant launched prosecution against the petitioners and three other accused and after investigation police found the case as mistake of fact but learned Sub Divisional Judicial Magistrate differed with the findings of the police and passed the order of cognizance. It would appear from perusal of the order dated 06.08.2007 that learned Sub Divisional Judicial Magistrate has not given his reasoning as to why he was differing with the findings of the police. Moreover, the aforesaid cognizance order dated 06.08.2007 has already been quashed by another Bench of this court in respect of co-accused Ram Naresh Sah and others holding that no case under [STATUTE] is made out against aforesaid co-accused persons. Therefore, in my view, on same set of evidence and materials, continuance of prosecution of these petitioners is nothing but only an abuse of process of the court. No Patna High Court Cr.Misc. No.25035 of 2010 (5) dt.08-10-2012 doubt, six prosecution witnesses have already been examined by the trial court but mere examination of prosecution witnesses cannot prevent this court to exercise its power vested under Section 482 of the Cr.P.C., particularly, in the circumstance when in similar matter the impugned order dated 06.08.

Applicable IPC Section: 379

Statute Text:
Section 379 of the Indian Penal Code. Theft. Whoever commits theft shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.