Case Facts:
IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Miscellaneous No.40546 of 2008 1. Jagdish Chandra Singh son of late Ram Uchit Singh. 2. Satyendra Kumar Singh son of Jagdish Chandra Singh. 3. Bijendra Kumar Singh son of Jagdish Chandra Singh. All are residents of village-Sonaigajan, P.S.-Baniapur, District-Saran. ....Petitioners Versus 1. The State Of Bihar. 2. Sheo Nath Singh son of late Mahabir Singh, resident of Village-Sohaiganjan, P.S.-Baniapur, District-Saran. ......Opposite Parties ---------------------------------- 05 04.01.2012 Heard learned counsel for the petitioners, learned counsel for opposite party no. 2 and learned A.P.P. for the State. The petitioners have approached this Court under section 482 of the Code of Criminal Procedure to quash the order dated 10.10.2007, passed in Tr. No. 3921 of 2007 arising out of Complaint Case No. 1568 of 2005 by the Judicial Magistrate, 1st Class, Chhapra, Saran, summoning the accused petitioners under section 204 of Code of Criminal Procedure, on enquiry, finding prima facie case under [STATUTE] . The learned counsel appearing on behalf of petitioners submits that the allegation against the petitioner is of cutting the dry mango tree, standing on plot no. 835, Area 2 Katha, 10 Dhurs of Khata No. 82 of Village-Sohai Shahpur. In fact, regarding the said land, title suit was going on in between petitioners no. 1 and 2 and opposite party no. 2, which was 2 decided in favour of petitioners and thereafter, the opposite party no. 2 filed the title appeal, numbered as Title Appeal No. 54 of 2001 in the Court of Additional District Judge-10, Chhapra, in which on 15.06.2004, order was passed to cut the tree by the accused petitioners on depositing Rs. 2,000/- in Nazarat. As such, the allegation made in the complaint petition against the petitioners is with oblique motive only to harass the petitioners. On the other hand, learned counsel appearing on behalf of opposite party no. 2 made submission that while there was order in Title Appeal No. 54 of 2001 in favour of petitioner; to cut the dry mango tree on 15.06.2004, but the accused- petitioners have cut the tree without depositing Rs. 2,000/- in Nazarat. As such, the learned Magistrate has rightly summoned the accused-petitioners finding prima facie case under [STATUTE] . It appears that opposite party no. 2, Shiv Nath Singh, filed the complaint petition against the petitioners, Jagdish Chandra Singh, Satyendra Kumar Singh and Bijendra Kumar Singh, with allegation that he has filed the Title Appeal No. 54 of 2001, which is pending in the Court of Additional District Judge, Chhapra regarding Plot No. 835, Area-2 Katha 10 Dhurs of Khata No. 82, in which two mango trees and one ‘Jamun’ tree was standing but accused petitioners cut one dry mango tree on 05.07.2005 in the morning and on protest by the complainant- 3 opposite party no. 2, they assaulted him with fist and slap. It appears from Annexure-2 to this application that title suit in respect of Plot No. 835, Area 2 Katha 10 Dhurs of Khata No. 82 has been decided in favour of the petitioners, vide judgment dated 08.07.2001 passed by the Court of Munshif-III, Chhapra. Annexure-1 to the counter affidavit, filed on behalf of opposite party no. 2, is order-sheets of Title Appeal No. 54 of 2001, filed by opposite party no. 2 against the petitioners. The order-sheet dated 15.06.2004 indicates that on the petition of petitioners no. 1 and 2, after hearing the parties, the learned Additional District Judge ordered to cut the mango tree by the petitioners no. 1 and 2 on depositing cash amount of Rs. 2,000/- in Nazarat and to keep the wood reserved till disposal of the case. As such, the allegation as appears in the complaint petition to cut the mango tree by the petitioners no. 1 and 2 is in the light of the order of the appellate Court. The learned counsel appearing on behalf of opposite party no. 2 made submissions in course of argument that Rs. 2,000/- has not been deposited by the petitioners in Nazarat, so the summoning order does not suffer from illegality. Moreover, from perusal of the complaint petition, the dispute appears to be civil in nature. The mango tree alleged to be cut by the petitioners no. 1 and 2 is in the light of the order of the appellate Court, passed in Title Appeal No. 54 of 2001. If there is case for non-depositing the amount in Nazarat, 4 as directed by the appellate Court before cutting the tree that will be matter of disobedience of the order of the appellate Court. Under the aforesaid facts and circumstances, the order dated 10.10.2007, passed in Tr. No. 3921 of 2007 arising out of Complaint Case No. 1568 of 2005 by the Judicial Magistrate, 1st Class, Chhapra is hereby quashed and this application is allowed. Safik (Rajendra Kumar Mishra, J.)

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.