IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.56141 of 2007 1. KUNTI DEVI, WIFE OF SHRI GYAN SHANKAR GOSWAMI 2. SANGITA DEVI, WIFE OF SHRI SANJAY GOSWAMI 3. GYAN SHANKAR GOSWAMI, SON OF LATE JAGDISH GOSWAMI ALL RESIDENT OF VILLAGE MOHANPUR, P.S. DHARHARA, DISTRICT MUNGER. 4. MAHANAND MISHRA 5. GOPAL MISHRA 6. SAROJ MISHRA 4 TO 6 ARE SONS OF LATE ARJUN MISHRA, RESIDENT OF VILLAGE BELDIHA, P.S. DHORAIYA, DISTRICT BANKA. ----- PETITIONERS Versus 1. THE STATE OF BIHAR 2. SHRI PREETAM GOSWAMI, SON OF SHRI PERMANAND GOSWAMI, RESIDENT OF VILLAGE BARA TOA BELDIHA, P.S. DHORAIYA, DISTRICT BANKA. ----- OPPOSITE PARTIES ----------- 2. 30.03.2010 Heard learned counsel for the petitioners. Nobody appears on behalf of opposite party no. 2 although notices were issued to opposite party no. 2 in this case. This case was stayed by order dated 8.2.2008 and has come up for final hearing at the stage of admission. The petitioners challenge the order dated 1.8.2005 passed in Complaint Case No. 1463 of 2004 under Sections 147, 148, 447 and 379 of the Indian Penal Code. The allegation in the complaint petition is that the petitioners have harvested the paddy crop from the field of the complainant and thereby committed theft of the crop. Learned counsel for the petitioners submits that the petitioners are bonafide purchasers of the land in question. The father of the complainant has filed Title Suit No. 65 of 2003 which is annexed as annexure-3. The prayer made in the Title Suit is as follows: “That the plaintiffs pray for the following reliefs:- (a) That right and title of the plaintiffs over the suit- 2 property as described in the Schedules – “A” and “B” of the plaint may be declared. (b) That possession of the plaintiffs over the suit property may be confirmed and in case, they be dispossessed therefrom possession over the suit property may be delivered to the plaintiffs. (c) That a decree may be passed declaring the said Sale-Deed No. 10385 of 2003 dated 13.6.2003, Sale-Deed No. 10386 of 2003 dated 13.6.2003 are illegal, null and void and without consideration. (d) That a decree may be passed for cancelling the said Sale-Deed No. 10385 of 2003 dated 13.6.2003. (e) That a decree may be passed for a permanent Injunction restraining the defendant Ist and 2nd parties from interfering with title and possession of the plaintiffs over the suit- property. (f) That cost of the suit may be decreed in favour of the plaintiffs against the defendants. (g) That such other relief or reliefs may be granted to the plaintiffs as may be deemed fit and proper.” In view of the prayer made in Clause (b) and (c), it would appear that the complainant’s father i.e. the complainant himself is challenging the sale deed by which the petitioners claim title and possession over the land. It also appears that the suit has not only been filed for cancellation of the sale deed also for confirmation of possession and it has been said that if the Court 3 finds that the plaintiffs are dispossessed from the land then they may be granted a decree by which delivery of possession should be handed over to the complaint’s father. In a case of this nature where there is a bonafide dispute between two parties over a piece of land and it is alleged that one of the parties has harvested the crop, it cannot be said to be a case under Section 379 of the Indian Penal Code. The complainant has not been able to make a positive assertion that he was in possession over the land in dispute, therefore, it is submitted that this criminal case has been filed to create evidence of possession. A bonafide civil dispute over the same piece of land in which one of the parties claims the sale deed be set aside, while the petitioners are also claiming title & possession, would come within the definition of bonafide civil dispute. In view of the aforesaid facts, I quash the order dated 1.8.2005 taking cognizance under Sections 147, 148, 447 and 379 of the Indian Penal Code in Complaint Case No. 1463 of 2004, pending before the Judicial Magistrate, 1st Class, Banka. This application is allowed. Sanjay (Sheema Ali Khan, J.)