IN THE HIGH COURT OF JUDICATURE AT PATNA Cr. Misc. No.53386 of 2007 1. RAM NARESH SAH son of Late Sukhlal Sah, 2. Shree Narayan Prasad son of Suykhlal Sah, & 3. Shailesh Kumar Gupta son of Late Dhanukhdhari Sah. All resident of village- Nayagaon, Police Station -Piprarhi, District-Sheohar ...Petitioners Versus 1. THE STATE OF BIHAR & 2. Shakuntala Gupta, wife of Late Suresh Prasad, resident of village- Nayagaon, Police Station - Piprarhi, District- Sheohar …Opposite Parties ----------- For the petitioners : Mr. Arun Kumar, Advocate For the O.P. No.2 : Mr. Radhey Shyam Prasad, Advocate ----------- 3/ 14.05.2010 Heard learned counsel for the parties. Petitioners seeks quashing of the order dated 6.8.2007 passed by the Sub-Divisional Judicial Magistrate, Sheohar, Sitamarhi, by which he has taken cognizance under sections 379 and 411 Indian Penal Code in connection with Piprahi P.S. case no. 100 of 2006 (G.R. No.524 of 2006/Tr. No.1208 of 2007) and issued summons against the petitioners. Case of the prosecution is that the informant learnt that in the night of 24.12.2006, two Shisham trees were cut by the accused persons of which there was no trace. The reason for the same is that the accused persons are the agnates of the informant and she was regularly being pressurized into submission by the accused persons because she was poor. The occurrence had been seen by one Dharichan Yadav, who had seen the trees being taken away by tyre- cart. After investigation, the police submitted final report in the matter but differing with the same the Chief Judicial Magistrate, Sitamarhi, took cognizance and issued summons. - 2 - By order dated 12.2.009, this court issued notice to opposite party no.2, upon which counsel for the opposite party no.2 is present in the court. Admitted position is that the parties are agnates between themselves and there was a partition suit pending between them and disputed plot was claimed by both the parties. Counsel for the petitioners submits that in the facts of the case there is no legal evidence when there is no eye witness to the occurrence and the entire case is based on hear say account. Further submission is that in background of the case when a partition suit is pending between the parties and the land upon which the trees were standing is claimed by both the parties, no offence under sections 379 Indian Penal Code would made out since there has been no final adjudication in the matter. Further submission is that the police after due investigation had submitted final report finding that there was no material against the petitioners, but the learned Chief Judicial Magistrate differing with the same without assigning any reasons for the same has committed an error in law. Counsel for the opposite party no.2 states that in the facts of the case offence under section 379 Indian Penal Code is made out even if there is background of civil litigation between the parties since there is allegation against the petitioner in the First Information Report and the same need not be kept in mind while passing any order upon this application. He further submits that the petitioners have admitted that the land upon which trees were standing is that of the deceased husband of the informant and, therefore, a clear cut case under section - 3 - 379 Indian Penal Code is made out in the facts of the case. On consideration of the entire facts, this court finds that the First Information Report has been instituted by the informant on hear say account. The said Dharichan Yadav, when examined before the supervising authority, has not deposed as an eye witness to the occurrence. Under the circumstances, it is difficult to uphold the order of cognizance in absence of a clear averment as to which of the accused persons had committed the act of theft since section 379 Indian Penal Code does not make out a case for vicarious liability. Therefore, in my opinion, the proceeding on this score alone is bad in law. Further, considering that the parties are agnates and there is partition suit pending between them a bald allegation of this nature should not be enough to put the accused persons on trial to face agony of the trial for years together. In view of such, this application is allowed and the order dated 6.8.2007 passed by the Sub-Divisional Judicial Magistrate, Sheohar, Sitamarhi, taking cognizance under sections 379 and 411 Indian Penal Code in Piprahi P.S. case no. 100 of 2006 (G.R. No.524 of 2006/Tr. No.1208 of 2007) is hereby quashed in so far as it relates to the petitioners only. Application stands allowed. JA/- (Anjana Prakash, J.)