IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.24507 of 2007 1. Ashok Chaudhari, son of Late Baijnath Chaudhari, 2. Bhabhuti Chaudhari, son of Jadhu Chaudhari, Both of village Dadawa (Mallahtoliya), PS Mohania, Dist. Kaimur – petitioners. Vs. 1. The State of Bihar, 2. Mohan Seth, son of Ram Prasad Seth, village Mohania, Stuarganj, PS Mohania, district Kaimur – opposite parties. For the petitioners : Mr.Rajani Kant Pandey, Advocate. For the opp. Party : Mr. Surendra Kishpore Thakur. … 5 -7-2009 By this application the petitioners have challenged the order, dated 18.4.2007 passed by the Chief Judicial Magistrate, Kaimur by which cognizance for the offences under sections 323, 341, 504, 379 and 34 of the Penal Code has been taken against them. A complaint petition was instituted by opposite party Mohan Seth for an occurrence which allegedly took place on 3.9.2006. The prosecution case is that the complainant was sitting in his shop when the petitioners came and threatened him by saying that complainant was responsible for the conviction of their brother Kanhaiya Chaudhari, after which they took away Rs.3000/- and a gold ear rings (tops) worth Rs.2500/-. It is also alleged that they took out a pistol and fired. The complainant admits that there is a case pending between the parties numbered as Case No.4/1993. The complainant has also stated that he gave information in the police station with respect to this occurrence. Ashok Chaudhari, petitioner no.1 also filed a complaint petition in which he has mentioned that there is a dispute with respect to the land situated on khata no. 66, plot ns. 1266 measuring.44 decimals and plot no.1270 measuring .35 decimals. He alleges that the 2 complainant – opposite party in the present case has illegally taken possession of the said land. Title Suit No.196/1994 is also pending in the court below for the lands in question. It is alleged that on 1.9.2006 at about 7 AM Mohan Seth and others threatened him with his life and again on 2.9.2006 when petitioner no.1 went to the court, he was again surrounded and threatened by Mohan Seth and others. The complaint was lodged on 2.9.2006. As stated in Complaint Case No.817/2006 by Mohan Seth that he had given information with respect to the said occurrence in the police station; the Investigating Officer on the basis of the Sanha recorded by him conducted an enquiry and examined the parties as well as the persons of the locality. His report is marked as Annexure 3 to this application. As per the report of the Investigating officer it is quite apparent that there is a dispute pending with respect to the shop and the lands in question. The petitioners’ case is that in a family partition the lands in dispute were allotted to them, whereas the case of the opposite party is that he had purchased 16.2 decimals of land from the co-sharer i.e. Chachi of the petitioner. It has been stated that the lands allotted to the said Chachi was only 11.11 decimals and as such she has sold land in excess of her share and, therefore, the opposite party is creating hindrance on the said lands. The Investigating officer has found that the entire occurrence, dated 2.9.1999 was with respect to the land dispute and there was an exchange of hot words between the parties which died down due to the intervention of the villagers. The 3 Investigating Officer has specifically stated that the allegation with respect to firing by the petitioners is false and recommended that a proceeding under section 107 Cr.P.C. should be initiated against both the parties. From the facts aforesaid it appears that for the same occurrence information had been given to the Investigating officer who enquired into the matter and found that the allegations in the complaint petition were false and fabricated and quite rightly recommended that both the parties should maintain peace and recommended that a proceeding under section 107 Cr.P.C. should be initiated. This Court has referred to the documents aforesaid as they have been referred to in the complaint petition itself. Learned counsel for the petitioners submits that this case has been instituted because the petitioners had filed a complaint case a day prior to the institution of Complaint Case No. 817/2006. It is submitted that filing a complaint case of this nature shows that the opposite party is misusing the provisions of law to take revenge, to pressurize the petitioners because of the existing land dispute and in fact no offence is made out under sections 323, 341, 504, 379 and 34 of the Penal Code as per the findings of the Investigating officer. Learned counsel submits that no offence is made out under section 341 of the Penal Code as the definition of wrongful confinement is that whenever wrongfully restrains any person in such a manner as to prevent that person from proceeding beyond certain circumscribing limits, is said to wrongfully confine that person. From 4 the allegations made in the complaint petition it is clear that even if it is accepted that the entire case is true that the petitioners went to the shop of the complainant and allegedly fired, the story of firing in a shop from blank range, therefore, does not appear to be believable. Learned counsel appearing for the opposite party, on the other hand, has argued that the court ought not to judge the authenticity of the allegations. However, the court cannot turn a blind eye to a fact which on the face of it appears to be unbelievable and does not inspire confidence of the court to hold that the allegations as unfolded can be believed by any reasonable person specially in view of the fact that there is no investigation to show whether there was hole in the wall where firing was made. Section 321 of the Penal Code defines voluntarily causing hurt. It envisages that if a person does any act with intention of causing hurt to any person, or with knowledge that he is likely thereby to cause hurt to any person and it has thereby caused hurt to any person, is said “voluntarily to cause hurt”. Section 323 of the Penal Code prescribes punishment for causing voluntarily hurt. Section 321 has been divided into two parts, the first part being that if any person with an intention does any act which causes hurt or is likely to cause hurt and the second part of the section is that such act does in fact cause hurt to a person. In the facts of this case it is clear that no hurt was caused. Learned counsel for the opposite party, however, submits that from the facts that the petitioners fired at point blank 5 range shows their intention. The intention to cause hurt must be translated into action. In the present case there is no circumstance which would have caused an impediment to the petitioners to actually achieve their object which was to cause hurt. Therefore, in my view, the allegation made does not make out a case under section 321 of the Penal Code. As far as section 504 of the Penal Code is concerned, the ingredients of section 504 are not made out in this case. There is no allegation of insult. The only allegation is that the petitioners demanded that opposite party should vacate the premises and were aggrieved by the fact that the petitioners’ brother was convicted in a case instituted by the opposite party. There is no allegation that the petitioners insulted the opposite party and provoked him in any manner. If the court is to go by the allegations made in the complaint petition regarding the offence under section 379 of the Penal Code that the petitioners allegedly took away Rs. 3000/- and a gold ear ring worth Rs.2500/-, it appears that this part of the allegations would be supported by the allegations made in the complaint petition. Leaned counsel for the petitioners submits that taking into consideration the fact that the complainant himself has lodged a Sanha with respect to the same occurrence before the police and at that stage had not alleged any act of theft against the petitioners, it is submitted that this court ought to hold that the allegations have been made out of malafide intentions and because of the admitted civil 6 dispute with respect to the lands in question. It is further submitted that the complaint case viz-a-viz an independent enquiry for the same offence made by the Investigating officer would lead this court to believe that filing of the subsequent petition is malafide and misuse of process of law. It is further submitted that there is no specific allegation against petitioner no.1 regarding the factum of theft and as such the court ought to reject the allegations made in the complaint petition regarding the theft. There is no doubt about the fact that the parties are litigating because of civil dispute and that both of them have filed cases against each other. It also appears from the records of the case that for the same occurrence different versions have been stated by the complainant himself. It seems that somewhat unbelievable that the allegation of theft is true version of the occurrence in view of the fact that there is bonafide dispute. It is easy to allege that the petitioner snatched money from the shop of the opposite party but difficult to prove without an independent agency investigating this aspect of the case. This court, therefore, quashes the part of the order taking cognizance against the petitioners under sections 323, 341 and 379 of the Penal Code. This application is thus allowed. haque (Sheema Ali Khan, J.)