IN THE HIGH COURT OF JUDICATURE AT PATNA CR. REV. No.1286 of 2008 Mithilesh Kumar Singh son of Sri Yadunandan Singh R/o vill. Mathpa, P.S. Kutumba, Dist. Aurangabad. ----Petitioner. Versus 1. The State of Bihar 2. Bindeshwari Singh son of Biran Singh 3. Ravi Singh son of Bindeshwari Singh 4. Shakti Narayan Singh son of Biran Singh 5. Gauri Singh son of late Ram Tirth Singh 6. Dilip Singh 7. Udit Singh both are sons of shiv shankar singh, All are R/o of vill. Mathpa P.S.Kutumba, Dist. Aurangabad. ---- Opp. Parties. For the petitioner : Mr. Bhanu Pratap Singh, Advocate. For the State : Mr. Dr. Indiwar Kumari, APP. ----------- 02 08.07.2010 Heard both sides. Petitioner, who is the complainant of the case, giving rise to trial no. 418 of 1996 of the Court of Sub Divisional Judicial Magistrate, Aurangabad, is aggrieved by the judgment and order dated 06.09.2008 passed by learned Additional Sessions Judge, Fast Track Court no.II, Aurangabad in Criminal Appeal no. 01 of 2001/ 84 of 2006. By the said judgment lower appellate Court, on a reappraisal of the materials on record and after hearing the parties has come to the conclusion that prosecution has not been able to prove the charge(s) leveled against the accused persons (opposite party nos. 2 to 7 herein) beyond shadow of all reasonable doubts and as such they were acquitted of the charge(s). In other words, the appeal preferred by opposite party no. 2 to 7 herein was allowed. Be it recorded here that learned trial Court found and held all of them guilty under Sections 147 2 and 427 of the Penal Code and sentenced for diverse periods. Opposite party nos. 2 and 3 were additionally found and held guilty under Section 148 of the Penal Code. The complainant/petitioner (P.W.1) filed the complaint alleging therein that on the date of occurrence, the accused persons, who were agnates, arrived at plot no. 1072 of Khata no. 121, and stopped the construction work which was being carried out by the mason and the labourers. On protest made by the complainant and his father (PW 3), they were chased away. It was alleged that half built wall on the said plot was demolished causing loss of Rs. 1000/-. Learned lower appellate Court has inferred from the deposition of the complainant (PW-1) and his father (PW-3) that a concerted effort was made by them to conceal the fact that a Title Suit filed by his father (PW-3) for removal of the encroachment at the hands of the petitioner was already pending. It has been gathered that father of the complainant (PW-3) had already filed Title Suit no. 143 of 1996 relating to the same plot in which the accused persons were defendants. It has also been noticed that prior to this two more criminal proceedings were pending between the parties one being under Section 133 of the Code of Criminal Procedure. In the back ground of these facts it has been found and held that the prosecution has not been able to demonstrate and/or prove the case beyond all reasonable doubts. Learned counsel for the petitioner submits that criminal cases in such matters are not prohibited. If the allegations 3 pertain to criminal liability the Court may try the accused persons even if there is a civil suit pending between the parties. He refers to the judgment of the Apex Court rendered in the case of Rashida Kamaluddin Syed & Anr. Vs. Shaikh Saheblal Mardan 2007(3) PLJR (SC) 150.According to him, learned lower appellate Court has committed illegality in coming to the conclusion that because of the pendency of the suit no case was made out. Learned A.P.P. appearing on behalf of the State without making any argument simply supported the judgment of the learned appellate Court. There is no dispute that if the allegation made out in a complaint or F.I.R. disclose criminal liability the same has to be taken to trial. Only because a civil suit is pending between the parties will not justify refusal of trial. Here is a case where the opposite party nos. 2 to 7 were duly tried and held guilty by the learned trial Court. Learned appellate Court once again considered the evidence available on record and has recorded a finding that there was a wilful concealment of the fact that there was already a suit pending between the parties relating to the land in question which was filed by the father of the complainant, namely, Yadunandan Singh (PW-3). The suit was filed for removal of encroachment which was allegedly made by the accused persons. It has also noticed that the parties were agnates and were litigating from before. In the back drop of these facts appearing from the record, the evidence of the complainant and his father was scanned whereafter it has been found that the prosecution, has not come 4 out with the true version of the case and thus the charges are not proved beyond reasonable doubt(s). This Court finds no infirmity and/or perversity in the said consideration of the matter by the lower appellate Court. There is no merit in this application. It is, accordingly, dismissed. Sym ( Kishore K. Mandal, J.)