IN THE HIGH COURT OF JUDICATURE AT PATNA Cr. Misc. No.38019 of 2007 ANIL MISHRA, son of Sri Devendra Mishra, resident of village- Kalyanpur Dakshin Tola, Police Station- Bibhutipur, District- Samastipur ...Petitioner Versus 1. THE STATE OF BIHAR 2. Rabindra Mishra, s/o Bilal Mishra, r/o village- Kalyanpur Dakshin Tola, P.S. Bibhutipur (Samastipur) ...Opposite Parties ----------- 6/ 19.02.2010 Heard counsel for the parties. The petitioner seeks quashing of the order dated 3.4.2007 passed by the Sub-Divisional Judicial Magistrate, Rosera, Samastipur, in Bibhutipur P.S. case no.144 of 2005 dated 31.8.2005 (Trial No.2721 of 2006), by which he has refused to discharge the present petitioner. On 3.3.2005, a written report was filed by the opposite party no.2 stating therein that the present petitioner forcibly cut grass from his field and thereafter on resistance assaulted the informant and entered into his house and committed theft. After investigation, chargesheet was submitted for the offence under sections 323, 324 and 504 of the Indian Penal Code disbelieving the major portion of the prosecution case. Opposite party no.2 was noticed on 3.12.2008 and 26.2.2009 and despite receipt of notice by the wife of opposite party no.2, he has chosen not to appear before this court to contest the present petition. The undisputed position is that the present petitioner is the nephew of opposite party no.2 and there is a partition suit pending between the parties and several attempts had been made to settle the dispute but unfortunately for one reason or the other the parties could not arrive at an amicable settlement. - 2 - The submission of the petitioner is that the entire complaint is nothing but vexatious prosecution on account of pending civil litigation between them. A minor difference has been exaggerated to the extent of filing the present case and, in fact, no such occurrence has taken place at all. In the background of relationship between the parties and the factum of dispute over the execution of a gift by the mother of the present petitioner and opposite party no.2, I am of the view that the present case is nothing but an abuse of process of the court and is fit to be quashed. In the result, this application is allowed and the order dated 3.4.2007 passed by the Sub-Divisional Judicial Magistrate, Rosera, in Bibhutipur P.S. case no.144 of 2005 dated 31.8.2005 (Tr. No.2721 of 2006) is hereby set aside in so far as the petitioner is concerned. The application stands allowed. JA/- (Anjana Prakash, J.)