IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Miscellaneous No.13965 of 2008 1. Triyogi Narayan Pathak. 2. Parasnath Pathak. Both are sons of Late Sheokumar Pathak, resident of village-Amawa Nakached, P.S. Gopalganj, District- Gopalganj. ………………………………………………….Petitioners. Versus 1. The State Of Bihar. 2. Krishna Mohan Pathak, son of Late Sheokumar Pathak, resident of Village-Amawa Nakached, P.S. Gopalganj, District-Gopalganj. ………………………………………...Opposite Parties. ---------------------------------- For the Petitioners : M/s. Manan Kumar Mishra Sr. Advocate & A.K. Singh, Advocate. For the State : Mr. Hirday Prasad Singh, A.P.P. -------------------------------- O R D E R 6. 4.11.2011. The petitioners have approached this Court, under Section 482 of the Code of Criminal Procedure, for quashing the order dated 14.2.2008 passed by the Sessions Judge, Gopalganj, in Criminal Revision No.520 of 2007, whereby the Sessions Judge, Gopalganj, allowed the Criminal Revision, preferred by the complainant-opposite party no.2, Krishna Mohan Pathak, setting aside the order dated 7.11.2007 passed in Trial No.1522 of 2007 by Sri 2 A.K. Ojha, Judicial Magistrate, Gopalganj, dismissing the complaint petition under Section 203 of the Code of Criminal Procedure. 2. In brief, the facts leading to this application are that the opposite party no.2, Krishna Mohan Pathak, lodged the F.I.R., numbered as Gopalganj P.S. Case No.436 of 1994 under Sections 379/34 of the Indian Penal Code against the accused-petitioners alleging that his father, Sheokumar Pathak, pleasing with the service of his wife Smt. Urmila Devi, executed the deed of gift on 13.8.2003 regarding Plot No.258 measuring an area 5 Bighas 18 Kathas 9 Dhoors of Khata No.10 of Village- Dumariya, P.S. and District-Gopalganj and since then land is in possession of his wife, Smt. Urmila Devi. The said land was purchased by his father, Sheokumar Pathak, on 23.1.1995 from his own income. In the said plot, his wife had grown sugarcane crops. The further case of the opposite party no.2 is that on 23.12.2004, in the morning, he was informed by Mukhdeo Sah about cutting and carrying away the sugarcane crops by the accused- petitioners alongwith 5-7 others. Thereafter, he went on the field and made protest then he was chased by the 3 accused-petitioners armed with Garasa but he anyhow saved his life fleeing away from there. 3. The police on investigation submitted the final form against the accused-petitioners finding the case to be of civil dispute between the parties. Thereafter, on the basis of the protest petition filed by the opposite party no.2, Complaint Case No.449 of 2006 was registered by the court of Chief Judicial Magistrate, Gopalganj and transferred to the file of the court of Sri A.K. Ojha, Judicial Magistrate, Ist Class, Gopalganj. After inquiry, the learned Magistrate vide order dated 7.11.2007 dismissed the complaint petition under Section 203 of the Code of Criminal Procedure finding the case to be of civil nature. Being aggrieved and dissatisfied with the said order, the opposite party no.2, preferred the Criminal Revision No.520 of 2007 in the court of Sessions Judge, Gopalganj, who, after hearing the parties, allowed the Criminal Revision setting aside the order dated 7.11.2007 passed by the Judicial Magistrate, Gopalganj, dismissing the Complaint Case No.449 of 2006 with a direction to proceed with the matter afresh in accordance with law for taking cognizance in the complaint petition, which has 4 been assailed by the accused-petitioners in this application. 4. Learned counsel appearing on behalf of the petitioners submits that the petitioners are full brothers of the opposite party no.2, Krishna Mohan Pathak and, in fact, they are in possession over the land in dispute, i.e., Plot No.258. After knowing about the deed of gift got executed by the complainant-opposite party no.2, in favour of his wife, Smt. Urmila Devi, by impersonation, the accused- petitioners have filed Titile Suit No.526 of 2004 against the opposite party no.2, Krishna Mohan Pathak and his wife, Smt. Urmila Devi in the court of Sub-Judge, Gopalganj, with a prayer to restrain them not to interfere in the peaceful possession to the accused-petitioners and also to declare the deed of gift null and void. It is further submitted that in Mutation Case No.109/04-05 filed by Smt. Urmila Devi, the wife of opposite party no.2, Krishna Mohan Pathak, in the court of Circle Officer, Gopalganj, on inquiry, the Circle Officer, Gopalganj, refused to enter the name of Smt. Urmila Devi, on the basis of the alleged deed of gift finding that she is not in possession over the land in dispute vide order dated 24.7.2004. Thereafter, the opposite party no.2 with ill motive and only to harass the 5 accused-petitioners filed the present complaint case with false allegation of theft of sugarcane crops against them. It is also submitted that from the complaint petition, no offence of theft of sugarcane under Section 379/34 of the Indian Penal Code is made out against the accused- petitioners as the complainant-opposite party no.2 is not in possession over the land in dispute and the dispute is of civil in nature. 5. Admittedly, the petitioners are own brother of the complainant- opposite party no.2 as appears from the complaint petition, which is Annexure-„1‟ to this application. The allegation has been made by the complainant-opposite party no.2, Krishna Mohan Pathak, against the accused-petitioners for committing theft of sugarcane crops from the land covering under Plot No.258, belonging to his wife, Smt. Urmila Devi, after executing the deed of gift in her favour by his father, Late Sheokumar Pathak. 6. Section 379 of the Indian Penal Code relates to punishment for theft which is defined in Section 378 of the Indian Penal Code. Section 378 of the Indian Penal Code is read as under: 6 “378.Theft.- Whoever, intending to take dishonestly any movable property out of the possession of any person without that person‟s consent, moves that property in order to such taking, is said to commit theft.” From the definition of theft, it is clear that there should be dishonest intention of taking immovable property out of the possession of any person and taking of immovable property should be without the consent of that person. 7. Annexure-„3‟ is the copy of the plaint of Title Suit No.526 of 2004, which has been filed by the accused- petitioners against the opposite party no.2, Krishna Mohan Pathak and his wife, Smt. Urmila Devi, in which relief has been sought to declare the deed of gift executed in favour of Smt. Urmila Devi by Late Sheokumar, ineffective, null and void and to restrain them not to interfere in the peaceful possession over the land in dispute, i.e., Plot No.258 measuring an area of 5 Bighas 18 Kathas 9 Dhoors. Annexure-„4‟ is the copy of the order-sheet of Case No.109/04-05 of the court of Circle Officer, Gopalganj from which it appears that on 3.7.2004, an application was 7 filed on behalf of Smt. Urmila Devi, wife of complainant- opposite party no.2 for mutation of her name regarding Plot No.258 measuring an area of 5 Bighas 18 Kathas 9 Dhoors on the basis of the deed of gift and, after inquiry, the application of Smt. Urmila Devi, was rejected by the Circle Officer, Gopalganj, vide order dated 24.7.2004, finding the possession of the petitioners over Plot No.258. 8. Since the complainant-opposite party no.2 and his wife were not found in possession over Plot No.258 by the Circle Officer, Gopalganj in Mutation Case No.109/04- 05 vide order dated 24.7.2004, rather the accused- petitioners were found in possession and the title suit filed by the petitioners for declaring the gift deed ineffective with relief to restrain the complainant-opposite party no.2 and his wife to not interfere in possession over Plot No.245 is pending, hence, possession over Plot No.245 as claimed by opposite party no.2 is not beyond controversy. 9. Under the facts and circumstances of the case, if the allegations as have been made in the complaint petition by the complainant-opposite party no.2 against the accused-petitions are accepted in their face value, offence under Sections 379/34 of the Indian Penal Code do not 8 make out against the accused-petitioners because there is lack of dishonest intention of the accused-petitioners to take the sugarcane crops from Plot No.245, which is essential to constitute the offence of theft. The dispute also appears to be civil in nature. As such, the impugned order passed in Criminal Revision No.520 of 2007 by the Sessions Judge, Gopalganj, setting aside the order dated 7.11.2007 dismissing the Complaint Case No.449 of 2006 (Trial No.1522 of 2007) and directing the trial court to proceed afresh in accordance with law for taking cognizance appears to be abuse of the process of the court. 10. Accordingly, the impugned order dated 14.2.2008 passed by the Sessions Judge, Gopalganj, in Criminal Revision No.520 of 2007 is hereby quashed and the application is allowed. P.S./A.F.R. (Rajendra Kumar Mishra, J)