IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.54792 of 2007 1. Umesh Choudhary, Son of Sri Badri Choudhary. 2. Gappu Tiwary, Son of Jagarnath Tiwary. 3. Hussain Mian, Son of Late Islam Mian. 4. Hasnain Mian, Son of Late Sharif Mian. 5. Nagina Choudhary, Son of Motichand Choudhary. 6. Mohan Rai, Son of Late Bharat Rai. All are residents of Village- Sabana, P.S. Semra, in the district of West Champaran........................................................Petitioners. Versus 1. The State of Bihar. 2. Rudal Rai, Son of Same Rai, resident of Village- Subhasnagar, P.S. Semara, District- West Champaran..............Opposite Parties. ----------- For the petitioners :Mr. Bimlesh Kumar Pandit, Advocate. For the O.P.No.2 : Md. Zainul Abedin, Advocate. For the State : Mr. R.B.Roy ‘Raman’,A.P.P. ----------- 3. 26.03.2010. By the present application, the petitioners have challenged the order dated 22.09.2007 passed by the learned Sub Divisional Judicial Magistrate, Bagaha, in Semra P.S. Case No. 36 of 2005, Trial No. 1773 of 2007 whereby the learned Sub Divisional Judicial Magistrate, Bagaha, has rejected the application of discharge under Section 239 of Cr.P.C. Heard learned counsel for the petitioners and learned counsel for the State, Dr. Mayanand Jha. The prosecution case got initiated on the basis of written report by Rudal Rai on 23.03.2005 alleging therein that the informant alongwith several other persons 2 like Ismile Mian and Hazrat Mian were settled 98 decimals and 50-50 decimal of land by the then Circle Officer. It is also alleged that on the part of the land there was a Pond. Initially, the Pond was treated by villagers as Gairmazrua Malik land but subsequently measurement was done then it was found that the pond in question is part of settled land of the informant. Initially, the villagers settled pond for fishery purposes to Mohan Rai but subsequently the villagers decided that 50% of profit of the fishery will go to the informant. It is alleged that on 14.07.2005 petitioner no.6, Mohan Rai fished out six quintal of fishes worth Rs. 30,000/- but the share of the informant was not paid. On the basis of the aforesaid allegation, Semra P.S. Case No. 36 of 2005 was registered under Sections 406 and 120B of the Indian Penal Code. Consequently, chargesheet was submitted and cognizance was taken under Sections 406 and 120B of the Indian Penal Code in the matter. The petitioners filed an application for discharge under Section 239 of Cr.P.C. on the ground that no case under Sections 406 3 and 120B of the Indian Penal Code is made out because entrustment of the Pond was by the villagers under bonafide believe that the land is Gairmajrua Malik hence settled land to the informant and secondly that the settlement of the land in question of Touzi No. 1 Khata No.121, Khata No. 2, Plot No. 47 in favour of the informant and other person was illegally been done, hence, the learned Land Reforms Deputy Collector, Bagaha, vide Land Reforms Case NO. 2001/06-07 on 03.10.2006 recommended for cancellation of settlement and for taking appropriate action against the concerned Halka Karamchari, Circle Inspector and the Circle Officer. On the recommendation of the learned L.R.D.C., Bagaha, the Collector, West Champaran, Bettiah, on 12.04.2007 vide Annexure-3, intimated to the S.D.O. Bagaha and L.R.D.C., Bagaha, for cancellation of settlement of plot no. 47, Khata No. 2, Thana No. 121, Mouza-Sabna which was in favour of Gokhula Pandey, Sk. Sadik, Sk. Mainuddin, Sagar Mian, Rudal Bhar, Hazrat Mian, Ismile Mian, Md. Akbar, Md. Israil and Md. Basir Mian and asked for the report for taking 4 disciplinary action against the concerned officer who made the illegal settlement. Learned counsel for opposite party no.2 has submitted that the impugned order has been passed after considering all the materials on record hence needs no interference. Perused the materials on record and after hearing the counsel for both the parties, I find that before S.D.J.M.,Bagaha, the matter with regard to cancellation of settlement and bonafide giving fishery right by the villagers to the petitioners has been admitted by the informant also, but cancellation order has not been considered by the learned S.D.J.M.,Bagaha, because the informant claims his name to be Rudal Rai whereas in the cancellation order contained in Annexure-3, the name of settlee appears as Rudal Bhar. I think sur name and title will not change the factual situation of plot number. The informant claims the settlement of plot no. 47, Khata No. 2, Touzi No. 121 at Mouza-Sabna and settlement of said plot and respective area of settlement has been cancelled by the learned Collector. Moreover, 5 entrustment of the pond to petitioner no.6, Mohan Rai, was admittedly done by the villagers under bonafide believe that it is not within the settled area of the informant. In view of the discussions made above, I set aside the order dated 22.09.2007 passed by the learned S.D.J.M.,Bagaha, in Semra P.S. Case No.36 of 2005 Trial No. 1773 of 2007 with a liberty to pass afresh order on the application of discharge under Section 239 Cr.P.C. of the petitioners after giving notice to all the parties and consider the facts and circumstances as discussed above and the submissions of respective parties. This application is, accordingly, disposed of. U.K. (Dinesh Kumar Singh,J)