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.)