Criminal Miscellaneous No.26857 OF 1998 ------ In the matter of an application under section 482 of the Code of Criminal Procedure. ------ 1.SIARAM SAH @ SAHU son of Ganga Bishun Sah 2.Raghunath Sah @ Sahu 3.Shyam Kishore Sah @ Sahu 4.Manoj Kumar Sah @ Sahu 5.Sanjay Kumar Sah @ Sahu Son of Siaram Sah @ Sahu, All resident of Mohalla Kalivedi, P.S.-Rosera, Town and Dist.-Samastipur. ….. …..Petitioners. Versus 1.STATE OF BIHAR 2.Puran Thakur son of Yogendra Thakur, resident of Rosera Mahaveer Sthan, Ward No.9, P.S.-Rosera, Dist-Samastipur. ….. …….Opposite Parties. ------- For the petitioners: Mr. Pushkar Narain Shahi For the opp.party : ------- P R E S E N T THE HON'BLE MR. JUSTICE RAKESH KUMAR ------- Rakesh Kumar.J, Five petitioners are before this court challenging the order dated 12.8.1998 passed by Shri K.S.Singh ‘Sengar’, Judicial Magistrate, 1st Class, Rosera in G.R. No.252 of 1993/T.R. No.233 of 1998 arising out of Rosera P.S. Case No.95 of 1993. By the said order the learned Magistrate had rejected the discharge petition filed on behalf of the accused persons. 2. The short fact of the case is that opposite party no.2 initially filed a complaint petition vide Complaint Case No.191 of 1993. The said complaint petition was referred to the police for investigation under section 156(3) of the Code of Criminal Procedure and thereafter first information report vide Rosera P.S. Case No.95 of 1993 was registered for the offences 2 under sections 147, 148, 149, 379 and 427 of the Indian Penal Code. The allegation in the complaint was made that all the petitioners dismantle the shop of the complainant and thereafter they took away the bricks and other materials of the shop. According to the complainant theft of articles amounting to Rs.10,000/- was committed and the complainant suffered a loss of Rs.25,000/- besides cost of stolen goods. After registering the case, the police investigated the same. However, the police submitted charge sheet under section 504 of the Indian Penal Code. 3. Mr.Pushkar Narain Shahi, learned counsel appearing on behalf of the petitioner firstly, referred to annexure- 2 to the petition i.e. a report submitted by the police under section 173 of the Code of Criminal Procedure. By referring charge sheet, learned counsel for the petitioner pointed out that even during investigation the police found that the complainant was in possession of the shop in question and during investigation the police found entire materials available at the place of occurrence. Learned counsel further submits that charge sheet itself indicates that on earlier occasion also a case was instituted by the complainant (opposite party no.2) against these petitioners vide Rosera P.S. Case No.68 of 1992. However, during investigation the allegation in the said case was found to be completely untrue. He further submits that though no case is made out against these petitioners under section 504 of the Indian Penal Code, punishment for the said offence as prescribed in the Indian Penal 3 Code is imprisonment for two years. He submits that in the case the date of alleged occurrence is 13.5.1993 and the impugned order was passed on 25.9.1998, against which the petitioner approached this court and by order dated 8.3.1993, while permitting the petitioner to add the informant as opposite party no.2 , this court directed that, in the meantime, further proceeding in G.R. No.252 of 1993/T.R. No.233 of 1993 arising out of Rosera P.S.Case No.95 of 1993 pending in the court of Sri K.S.Singh ‘Sengar’, Judicial Magistrate, 1st Class, Rosera, shall remain stayed. Subsequently, by order dated 3.11.199 the petition was admitted for hearing and this court directed that till final disposal of this case, the interim order dated 8.3.1999 shall continue and till date the stay order is operative. Accordingly, he submits that after expiry of more than 17 years it would not be advisable to direct the petitioner to again face the trial for an offence in which maximum punishment is imprisonment for two years. 4. In view of the fact that there were claim and counter claim between the parties and for that both the parties were claiming their right over the shop in question, which has been noticed by the police while submitting charge sheet, it appears that allowing the proceeding to further continue after a lapse of such a long period would amount to an abuse of process of the court and, in that view of the matter, it is necessary to interfere with the impugned order. Accordingly, the order dated 25.9.1998, whereby discharge petition was rejected, is hereby set 4 aside and proceeding pertaining to Rosera G.R. No.252 of 1993/T.R. No.233 of 1998 arising out of Rosera P.S. Case No.395 of 1993 is set aside. Accordingly, the petition stands allowed. Patna High Court, The 29th March,2010. Md.S./NAFR. ( Rakesh Kumar, J.)