IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Miscellaneous No.27549 of 2008 1. Ganesh Thakur. 2. Santosh Thakur @ Santosh Kumar Thakur. Both are sons of Late Rameshwar Thakur. 3. Kedar Nath Thakur, son of Late Prem Nath Thakur. All are resident of village-Muradpur, P.S. Nauhatta, District-Saharsa. ………………………………………………Petitioners. Versus 1. The State Of Bihar. 2. Prabhakar Thakur @ Natho Thakur, son of Late Laxmi Narain Thakur, resident of village- Muradpur, P.S. Nauhatta, District-Saharsa. ……………………………………Opposite Parties. ---------------------------------- For the Petitioners: M/s. Pramod Mishra and Prafull Chandra Thakur, Advocates. For the State : None. For O.P. No.2 : None. -------------------------------------- O R D E R 4. 5.12.2011. The petitioners have filed this application under Section 482 of the Code of Criminal Procedure to quash the order dated 31.1.2008 passed by the court of Sri A.K. Singh, Judicial Magistrate, Saharsa, in Complaint Case No.315(C) of 2006, summoning the accused-petitioners, on inquiry, finding prima facie case under Sections 406 and 504/34 of the Indian Penal Code. 2 2. In brief, the facts, leading to this application, are that the complainant-opposite party no.2, Prabhakar Thakur alias Natho Thakur, filed the complaint petition, numbered as Complaint Case No.315(C) of 2006, with the contention that his father Late Laxmi Narayan Thakur after the death of his father, Late Santilal Thakur, had filed the Suit No.60 of 1958 in the court of the Munsif, Madhepura, for partition to solve the dispute between the brothers regarding the homestead land and on compromise the case was disposed of diving the property detailed in Schedule-1 to 4. The land, detailed in Schedule-2 covering the area of 2 Kathas 3 Dhoors 5 Dhurki in the north of Old Plot No.700 and one Katha 17 Dhoor of Old Plot No.701, was allotted to his father, Late Laxmi Narayan Thakur. The land, detailed in Schedule-4, measuring an area of 6 Kathas 14 Dhoor 5 Dhurki, came in the share of Chandra Shekhar Thakur, the grand father of accused- petitioner nos.1 and 2, Ganesh Thakur and Santosh Kumar alias Santosh Kumar Thakur and on division in between the sons of Late Chandra Shekhar Thakur, one Katha and one Dhoor came in the share of Kameshwar Thakur, the father of accused-petitioner nos.1 and 2, Ganesh Thakur and Santosh Kumar alias Santosh Kumar Thakur. The further case of the 3 complainant-opposite party no.2 is that the accused-petitioner no.3, Kedar Nath Thakur, started to give pressure to execute the sale deed of two Kathas, out of the 4 Kathas 5 Dhurki, of land, as allotted to him in share in partition in south side, regarding which his younger brother, Diwakar Thakur, had given an application at Nauhatta Police Station against the accused-petitioner no.3, Kedar Nath Thakur, which was registered as Miscellaneous Case No.40 of 1996 under Section 144 of the Code of Criminal Procedure and also as Miscellaneous Application No.240 of 1996 under Section 188 of the Indian Penal Code and the said proceeding, at the intervention of the relatives of the accused-petitioner no.3, Kedar Nath Thakur, was dropped. It is also alleged by the complainant-opposite party no.2, that due to his illness and residing of his brother, Diwarkar Thakur, outside , the accused-petitioner no.3, Kedar Nath Thakur, under conspiracy with his son, who is an advocate, instigated the accused- petitioner nos.1 and 2, Ganesh Thakur and Santosh Thakur alias Santosh Kumar Thakur, to get his two Kathas of land in the south side and, accordingly, they started to grow the crops on his said land but on the instigation of accused-petitioner no.3, Kedar Nath Thakur, the accused-petitioner nos.1 and 2, 4 Ganesh Thakur and Santosh Thakur alias Santosh Kumar Thakur, started to construct the hut on that land. As such, the complainant-opposite party no.2, suffered the loss of Rs.1,25,000/-. 3. After filing of the complaint petition by the complainant-opposite party no.2, Prabhakar Thakur alias Natho Thakur, the court of Sri A.K. Singh, Judicial Magistrate, Saharsa, on perusal of the complaint petition, solemn affirmation of the complainant-opposite party no.2 and the statements of the witnesses, as recorded in course of inquiry, came at the conclusion that prima facie case under Sections 406 and 504/34 of the Indian Penal Code is made out and, accordingly, summoned the accused-petitioners through the impugned order dated 31.1.2008. 4. Learned counsel appearing on behalf of the petitioners submitted that from perusal of the complaint petition itself, it is clear that the petitioners and the complainant-opposite party no.2 are gotiyas and co-sharer and the land in question is claimed by both sides. In fact, the petitioners are in possession over the land in dispute and only to put undue pressure upon the petitioners, the complainant- opposite party no.2, has filed the present complaint case with 5 respect to the civil dispute. It has also been submitted that on bare perusal of the complaint petition, the dispute appears to be of civil nature and no criminal offence is made out against the accused-petitioners. 5. On perusal of the complaint petition, it appears that the allegation of the complainant-opposite party no.2 is that out of 4 Kathas 5 Dhurki of land, as allotted to him in partition, in the north of Plot Nos.700 and 701, the accused- petitioner nos.1 and 2 on pretext of growing the vegetables, took possession of about 2 Kathas in the south and later on, they constructed the hut. As such, the allegation, as made in the complaint petition, appears to be civil in nature. Moreover, even if the allegation, as made in the complaint petition of the complainant-opposite party no.2, is taken to be considered and accepted in its entirety, no case for the offence under Sections 406 and 504/34 of the Indian Penal Code is made out against the petitioners as the ingredients constituting the offence under the aforesaid Sections are lacking. 6. Under the aforesaid facts and the circumstances, the impugned order dated 31.1.2008 passed by the court of Sri A.K. Singh, Judicial Magistrate, Saharsa, in Complaint Case No.315(C) of 2006, summoning the accused-petitioners, 6 appears to be an abuse of the process of the court. Accordingly, the impugned order dated 31.1.2008 passed by the court of Sri A.K. Singh, Judicial Magistrate, Saharsa, passed in Complaint Case No.315(C) of 2006, is hereby quashed and the application is allowed. P.S. (Rajendra Kumar Mishra, J)