IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.25890 of 2006 SHEO BACHAN SINGH & ORS Versus RAJ BANSH SINGH ----------- For the petitioner : Mr. Vidya Nand Kumar For the State : Mr. Jharkhandi Upadhaya, A.P.P. For O.P. No. 2 : M/s Narendra Kumar & Birendra Kumar Singh, Advocates O R D E R The five petitioners who have been arrayed as accused in Complaint Case No. 1333 of 2004 have prayed for the quashing of the entire proceeding arising therefrom including the order 9.5.2006 passed by Sri A.K.Shukla, Judicial Magistrate, 1st Class, Sasaram, whereby he has taken cognizance under sections 379, 323 and 147 IPC against the petitioners. One Raj Bansh Singh, impleaded herein as O.P. No. 2, filed the aforesaid complaint on 30.11.2004 in respect of an occurrence alleged to have taken place on 15.11.2004. It was alleged that the complainant had grown paddy crops on his lands having an area of 5 bigha 17 katha in mauza Kharahan and at about 9 A.M. on 15.11.2004 when the complainant with his father and brother had gone to supervise his fields he saw the accused persons having formed an unlawful assembly and being armed with lathi and danda were getting harvested the paddy crops planted by him. It is said that when the complainant and his father protested against the overt acts all the accused persons surrounded 2 the complainant and his father and threatened them not to raise any alarm or else they would be facing dire consequences. It is alleged that the complainant raised alarm whereupon accused Ram Bachan Singh inflicted a blow by means of danda on his head which caused bleeding injuries and accused Shiv Bachan Singh attempted to strangulate him by pressing his neck. Accused Prabhat, Subhas and Pradeep armed with danda assaulted the complainant and his father on the back and legs. It is said that on hearing alarm the people of the neighbourhood arrived and saw the occurrence. It is further alleged that about 200 maunds paddy had been harvested and taken away thereby causing a loss of Rs. 35000/-. It was also stated that since the police was in collusion with the accused hence the necessity of filing the complaint. Assailing the impugned order it has been submitted that although the date of occurrence is said to be 15.11.2004 the complaint was not filed till 30.11.2004 and there is no explanation for this inordinate delay in filing of the complaint and it only goes to show that the prosecution is a malicious one and no occurrence as alleged did take place. It is further submitted that for the lands in dispute a Title Suit No. 464 of 2003 is pending between the parties in the Court of the learned Subordinate Judge I, Rohtas at Sasaram and the subject matter of the suit was declaration of title and recovery of possession of the said lands apart from others. It was further submitted that for the same lands the complainant had earlier filed another complaint against these petitioners, being 3 Complaint Case No. 1239 of 2003, wherein cognizance was taken under section 379 IPC. The petitioners challenged the said order in Cr. Revision No. 379 of 2004 which was admitted on 21.2.2004 and further proceedings in the court below were stayed by the Sessions Court. It was also submitted on behalf of the petitioners that the lands in question were recorded in the name of their ancestors in the khatian and rent receipts were being granted continuously in their favour and they were in peaceful and continuous possession over the lands in question measuring 3 acres 32 decimals i.e. 5 bighas 17 kathas appertaining to plot nos. 46, 25, 26, 27 and 28 of khata nos. 83 and 84 and it was they who had grown the paddy crops thereupon and as such there was no question of any theft being committed. It was also submitted that prior to the filing of the instant complaint the petitioners had filed Kargahar (C.D.) Case No. 165 of 2004 against Raj Bansh Singh, his father, Jangi Singh, and brother Rajendra Singh in respect of an occurrence which took place on 15.11.2004 wherein cognizance has been taken under sections 341, 324, 323, 307, 504/34 IPC and the trial was pending before the learned 1st Assistant Sessions Judge, Rohtas at Sasaram. It was further submitted that from perusal of the complaint it would be apparent that none of the offences whereunder cognizance has been taken can be said to have been made out and the cognizance under sections 147 and 323 IPC were time barred under section 468 Cr.P.C. as the same was beyond the 4 statutory period prescribed. The complainant - O.P. No. 2 has appeared to contest the application but no counter affidavit or show cause has been filed on his behalf and only oral submissions have been advanced to justify the impugned order. Admittedly a Title Suit in respect of the lands in question is pending between the same parties. It also appears from the perusal of the complaint petition that the complainant had laid a claim of possessing the lands in dispute and the petitioners also claimed possession over the said lands. Therefore, the matter of who is in actual possession of the land can only be decided in the civil suit In the case of Ram Sumer Puri Mahant Vs. The State of U.P. and ors. (AIR 1985 SC 472) the Apex Court deprecated the continuance of parallel proceedings in civil and criminal courts and observed that a party should not be permitted to litigate before the criminal court when a civil suit is pending in respect of the same subject matter and it was open to the parties to move the civil court in respect of the matters and in my opinion it was open for the complainant to have approached the Civil Court with the accusations which have been alleged in the complaint petition. Admittedly the entire case is based on the question of title and possession over the lands and it was only the Civil Court which was competent to adjudicate on the dispute regarding the property and as to who was entitled to cultivate the land and harvesting the crops grown thereupon. 5 That apart it appears that prior to the filing of the instant complaint the petitioners have already filed a complaint case wherein cognizance has been taken and presumably the instant case is by way of a counter blast to the said complaint case. In the facts and circumstances of the case I am of the view that such vexatious and frivolous litigations on the criminal side should not be permitted to continue when the matter is pending adjudication before the Civil Court and the parties were at liberty to approach the Civil Court for appropriate reliefs. In that view of the matter I am of the opinion that the continuance of the instant proceeding is an abuse of the process of the Court which cannot be permitted to continue. Accordingly the impugned order as also the entire criminal proceeding is hereby set aside and the application is allowed. Patna High Court, Patna. Dated : The 25th of June, 2009 Sanjay Pd./A.F.R. (Abhijit Sinha, J.)