- (1.) This application has been filed for quashing the order dated 3.7.2003 passed by then Judicial Magistrate, 1st Class, Hazaribagh in Complaint Case No. 92 of 2003 whereby and whereunder cognizance of the offences punishable under Sections 149/323 and 379/149 of the Indian Penal Code has been taken against the petitioners and others. It is a case of the complainant that a pond situated over plot No. 1768 appertaining to Khata No. 88 of Mouza- Kundru Kala, P.S Ramgarh, District-Hazaribagh had fallen in the share of opposite party No. 2 who has reared fish in it but the same was stealthily taken away by the accused persons. On such complaint, cognizance of the offences as aforesaid was taken against the petitioners and others. That order is under challenge.
(2.) Learned Counsel appearing for the petitioners submitted that though the complainant has claimed in the complaint that the pond is in exclusive possession but that claim gets falsified from the report submitted by the Circle Officer under the order of Deputy Commissioner Land Reform, when dispute arose between the parties over the matter relating to creation of Jamabandi in the name of the complainant, wherein it has been reported that the pond is in joint possession.
(3.) Learned Counsel further submitted that not only that even in the decree passed in Title (Partition) Suit No. 192 of 1925 on the basis of compromise, the pond was shown in joint possession of the parties, descendants of whom is the complainant and the accused persons. Since those documents are impeachable in character which can be taken notice of. Thus, the aforesaid document when shows that the pond is in joint possession, the petitioners can never be said to have committed offence of theft. Therefore, the order taking cognizance is fit to be set aside.;