IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.41681 of 2007 1. SRI ANANT JHA SON OF LATE SHIB SHANKAR JHA 2. SRI GOBIND JHA SON OF LATE SHIB SHANKAR JHA 3. SRI SURENDRA JHA SON OF LATE SHIB SHANKR JHA 4. SMT. CHANDU DEVI W/O SRI RAJIB KUMAR JHA ALL R/O VILLAGE- JARISO CHAKARSAIN, P.S.- BAHERA, DISTRICT- DARBHANGA 5. SRI BHAGWAN JHA SON OF SHYAM DEO JHA 6. SRI ANANT JHA SON OF SHRI DEB JHA 7. SRI RAJESH KUMAR JHA SON OF CHANDRADEO JHA 8. SRI TUNA JHA SON OF NOT KNOWN ALL R/O VILL- JAYANTPUR, DATH P.S.- GHANSHYAMPUR, DISTRICT- DARBHANGA 9. MANOJ KUMAR CHAUDHARY SON OF PANCHABH KRISHNA, P.S.- BISHNAPUR, DISTRICT- DARBHANGA Versus 1. STATE OF BIHAR 2. KAUSHAL KISHORE JHA SON OF HARIHAR JHA OF VILLAGE- JARISO, P.S.- BAHERA, DISTRICT- DARBHANGA ----------- 5 09/04/2010 Heard learned counsel for the petitioners, learned counsel for the opposite party no. 2 and learned APP for the State. The petitioners have challenged the order dated 17.8.2007 passed by the learned Judicial Magistrate Ist Class, Benipur in T.R. No. 415 of 2007 arising out of C.R. No. 97 of 2003 whereby the learned Magistrate was pleased to reject the petition dated 24.5.2007 filed by the petitioners refusing their prayer of discharge. Complainant, the opposite party No. 2 and the petitioners (accused persons) belongs to the same common family. The petitioners have sold some land which is alleged to be the share of the complainant. When the complainant protested then the petitioners 2 have assaulted him by fist and slaps and also Rs. 500/- was taken. On these assertions the complaint case was filed. Submission is that the FIR lodged by the opposite party no. 2 vide Bahera P.S. Case No. 100 of 2002 on 19.5.2002 under Sections 341, 323, 379 and 420/34 of the Indian Penal Code against the petitioners was investigated into and after investigation and supervision the case was found to be a case of land dispute and accordingly, final form was submitted. But on protest filed by the complainant (opposite party No. 2) the case was proceeded and cognizance was taken under Sections 323, 341, 379 and 420 of the Indian Penal Code. The order taking cognizance was challenged by filing revision application before the revisional Court which was dismissed. Altogether three prosecution witnesses, namely, PW 1 Anand Kishore Jha, PW 2 Bimlesh Jha and PW 3 Kaushal Kishore Jha have been examined and cross-examined before charge. It is submitted by the learned counsel for the petitioners that there are many contradictions in their evidences. Their depositions given in the Court varies from the statement made in the Complaint petition. If a co-sharer sales a land then it cannot make a criminal offence rather it was a case of 3 civil dispute and accordingly, the police has acted upon and believed that the case was of civil nature but without any material the protest petition was filed and impugned order was passed. Learned counsel appearing on behalf of the opposite party no. 2 submits that there is specific allegation that the complainant was assaulted and for that the learned Court below was justified in proceeding with the case by passing the impugned order. The facts available with the record are indicative of the fact that the complainant and the accused persons are not different persons rather they belongs to common family and if one party sales the land claiming his share then the remedy lies before the Civil Curt not before the Criminal Court. In view of the above discussions, it is apparent that no offence at all is made out and the order dated 17.8.2007 is without merit. Accordingly, this application is allowed and the order dated 17.8.2007 passed by the learned Judicial Magistrate Ist Class, Benipur in T.R. No. 415 of 2007 arising out of C.R. No. 97 of 2003 is hereby quashed. avin (Shyam Kishore Sharma, J.)