IN THE HIGH COURT OF JUDICATURE AT PATNA Cr. Misc. No.4893 of 2009 1. KAPILDEO SAH, Son of Late Khatar Prasad. 2. Meena Devi, Wife of Kapildeo Sah. 3. Shankar Prasad Sah, Son of Surya Narayan Sah. 4. Brahamdeo Sahu, Son of Late Subalal Sah. 5. Jai Prakash Sah, Son of Brahamdeo Sah. 6. Mohan Sah, Son of Sateyandra Sah. 7. Sateyendra Sah, Son of Late Jawahar Sah. 8. Reena Devi, Wife of Sateyendra Sah. 9. Raghvendra Sah, Son of Late Jawahar Sah. 10. Nawal Sah, Son of Brahamdeo Sah. All residents of village Dhanuki, P.S. – Laukaha, District – Madhubani. .................... Petitioners. Versus 1. THE STATE OF BIHAR 2. Sita Ram Sahni, Son of Late Nathuni Sahni, Resident of village Dhanuki, P.S. Laukahan, District – Madhubani. ........... Opp. Parties. ----------- For the Petitioners :- Md. Anisur Rahman, Advocate. For the State :- Mr. Damodar Prasad Tiwary, A.P.P. 04/ 02.02.2011 This is a petition for quashing the order dated 17.01.2008 passed in Trial No. 3024 of 2008 arising out of Complaint Case No. 464 of 2008 passed by Sri K. Prasad, Judicial Magistrate, First Class, Jhanjharpur by which summon has been ordered to issue after taking cognizance under Sections 147, 323, 504 and 506/34 of the Indian Penal Code. 2. The prosecution case as alleged in the complaint petition that all the accused persons stolen away three quintals of the fish worth Rs.24,000/- and when the 2 complainant protested fishing from the pond then Kapildeo Sah attempted to tie Sita Ram Sahani in a mango tree and all the accused persons tied the complainant and when the wife of the complainant came to his rescue then she was also tied, abused and assaulted. On the complaint petition, the statement of the complainant on solemn affirmation and the statement of the witnesses recorded. Taking into consideration the statement of complainant and witnesses and the summons were ordered to be issued after taking cognizance for offence under Sections 147, 323, 504 and 506 of the Indian Penal Code. 3. The learned counsel for the petitioners, however, contended that the pond in question was settled to one Jawaharlal Sah, a cousin of the petitioner no. 1 and Jamabandi was created in his name and after his death his heirs are coming in possession and the complainant has no concern with the pond. The complainant had taken the pond in question from the petitioner no. 1 on a rent for the period from 1995 to 1997. In a dispute the matter was settled and the complainant gave in writing that the period of lease is over and he does not want to continue and left the pond. It was also settled that the land given by the 3 ancestor of the petitioner no. 1 to the complainant for the homestead purpose will be given and the complainant will not raise any objection or grievance with regard to the pond and the complainant will get six feet passage. It is further alleged that in a proceeding under Section 144 of the Cr.P.C the complainant opposite party no. 2 filed a petition that he has put a Zira in the pond on 19.09.1998 and the Anchal Adhikari submitted a report that the complainant does not possess any chit of paper and the Anchal Adhikari held that the claim of opposite party no. 2 is illegal and further a proceeding under Section 107 and 144 of the Cr.P.C between the parties in which proceeding is pending against the complainant and further a case under Section 379 of the I.P.C against the petitioner no. 9 is pending. Hence, litigation is going on between the parties and hence it is alleged that the complaint has been filed mala fidely for personal grudge to spit vengeance. There is no independent witness. The petitioner no. 1 is a science teacher and has been falsely implicated. The case filed under Section 379 of the Indian Penal Code against the opposite party no. 2 claims that petitioner is coming in possession and they have committed no offence and 4 falsely been implicated. 4. Learned counsel for the opposite party, however, contended that the allegations are true and the complaint petition has been filed itself make out an offence as the enmity cuts both the ways. 5. Hence, on the respective submissions of the parties, the question for consideration whether the order taking cognizance is sustainable in the eye of law. 6. However, having regard to the allegation that the accused persons came and stolen away by illegally fishing fishes from the pond of the petitioner and taking the allegation on the face value an offence is made out. However, the argument advanced that they have been falsely implicated as there is no enmity and several civil and criminal litigation between the parties for the pond. However, it is difficult to decide at this stage the defence of the petitioner that the pond belongs to them or the various facts about the lodging of the case due to enmity. At this stage, this court cannot decide by a mini trial about the claim of the parties. However, in a case of theft the question of ownership may not have much relevance as a criminal court cannot decide the ownership. However, the 5 petitioner claims to be in possession and this is a question of fact to be decided in the trial and moreover the defence of accused cannot be looked into at this stage and the court at this stage cannot go into the question of fact to decide either way though the court is not denuded to take into consideration a document which is of undisputable or unimpeachable character but taking into consideration the facts and circumstances of the case it is not proper to take into consideration the defence of the accused at this stage and the nature of the document annexed with the quashing petition, not as such, of an unimpeachable character to rely and consider defence case at this stage to held possession of the petition. So far the question of enmity is concerned cuts both way and hence under the facts and circumstances it is not fit case to interfere with the impugned order and hence the criminal miscellaneous petition is hereby dismissed. Kundan (Gopal Prasad, J.)