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2011 Supreme(Pat) 659
PATNA HIGH COURT
Sheema Ali Khan, J.
Nand Kishore Tiwary, S/o. Kapildeo Tiwari And Sheo Shankar Singh, s/o. Late Hemraj Singh
Versus
State Of Bihar And Shri Ram Singh, S/o. Late Chandar Singh
Criminal Miscellaneous No. 46410 of 2006
Decided On : April 19, 2011
The case involving a property dispute is purely of civil nature and the question of partition can only be determined in a civil suit.
Headnote:
Quashing - Property Dispute - The court quashed the order taking cognizance of the offences under Sections 420, 467, and 468 of the Indian Penal Code, stating that the case is purely of civil nature and the question of partition can only be determined in a civil suit.
Fact of the Case:
The accused were alleged to have sold property in connivance, leading to a complaint case. The accused argued that the lands belonged to one of them based on records of right and revisional survey.
Finding of the Court:
The court found that the case is purely of civil nature and the question of partition can only be determined in a civil suit. It concluded that no case is made out against the Petitioners under the relevant sections of the Indian Penal Code.
Issues: Whether the alleged offences under Sections 420, 467, and 468 of the Indian Penal Code were made out against the Petitioners.
Ratio Decidendi: The court held that the case is purely of civil nature and the question of partition can only be determined in a civil suit, and if the complainant finds excess sale in the civil suit, there is a remedy available.
Final Decision: The court quashed the order dated 16.05.2006 passed in Complaint Case No. 35 C of 2006 (Trial No. 2361 of 2006).
Sheema Ali Khan, J.
1. Heard Counsel for the Petitioners and the A.P.P. appearing on behalf of the State. Nobody appears on behalf of the Opposite Party No. 2 to pursue this matter despite valid service of notice.
2. This application has been filed for quashing of the order dated 16.05.2006 passed in Complaint Case No. 35 C of 2006 (Trial No. 2361 of 2006) by which the Judicial Magistrate, 1st Class, Sasaram (Rohtas) has taken cognizance for the offences under Sections 420, 467 and 468 of the Indian Penal Code against the Petitioners.
3. The accused No. 1 Sharda Kunwar is the daughter-in-law of Amerika Singh. The informant is the son of Chandar Singh. Chandar Singh and Amerika Singh are full brothers.
4. The allegation against the accused persons is that Sharda Kunwar in connivance with these two Petitioners has sold her share in the property. It is alleged in the complaint petition that there was a partition years ago and by way of that partition, the lands which have been sold come in the share of Chandar Singh. Counsel for the Petitioners, on the other hand, refers to the records of right and the order passed in the revisional survey to submit that the lands are belonging to Sharda Kunwar. It is submitted that the complaint case has been filed in order to deprive Sharda Kunwar from her rightful share.
5. This case is purely of civil nature as the question of partition can only be determined in a civil suit, which has already been filed by the complainant and his brothers.
6. If in the civil suit, it is found that Sharda Kunwar has sold in excess of her share, there is a remedy available to the complainant in the civil suit itself. As such, I find that no case is made out against the Petitioners under Sections 420, 467 and 468 of the Indian Penal Code. Accordingly, the order dated 16.05.2006 passed in Complaint Case No. 35 C of 2006 (Trial No. 2361 of 2006) is hereby quashed.
7. In the result, this application is allowed.
