- (1.) This Cr.M.P. has been filed for quashing the order dated 22nd December, 2003 passed by learned Sub Divisional Judicial Magistrate, Deoghar, whereby cognizance for the offence under Sections 452 and 380 of the Indian Penal Code has been taken against the petitioners in connection with P.C.R. Case No.430 of 2003, T.R. No.1238 of 2004. At the very outset, it is pointed out that Petitioner No.1- Hari Prasad Sah is no more in this world and, therefore, prayer made on behalf of Petitioner No.1 has now become infructuous. In view of the submission, name of Petitioner No.1-Hari Prasad Sah stands deleted.
(2.) The fact, in brief, is that the complainant admits himself to be a tenant under Opposite Party No.3-Kamal Prasad Verma. It is alleged that the accused persons committed theft of the articles, kept in the disputed premises, and after removing the articles the house was demolished by them. Learned Magistrate, after holding enquiry, took cognizance for the offence punishable under Sections 452 and 380 of the Indian Penal Code and directed the petitioners to face trial.
(3.) Learned counsel appearing for the petitioners has submitted that date of occurrence as per the complaint is 13th August, 2003 and complaint was filed on 18th August, 2003. In order to bring it on record that litigation between Opposite Party No.3-Kamal Prasad Verma and Petitioner No.1- Hari Prasad Sah was prevailing from before, learned counsel has drawn attention towards Annexure-2 and that indicates institution of a criminal case by Petitioner No.1 against said Kamal Prasad Verma. By referring Annexure-3 it is submitted that Title Suit No.28 of 2003 was filed on 7thth February, 2003 by said Kamal Prasad Verma, impleading the Petitioner No.1 as defendant and the schedule property is same, which is the subject matter of present criminal case. Kamal Prasad Verma, vide amended Paragraph 12(A) of Title Suit No.28 of 2003, has admitted that the defendants, who are petitioners, have already taken illegal possession of the suit property by breaking open the lock of the room on 6thth April, 2003. Again learned counsel has drawn my attention towards the date of occurrence, which is 13thth August, 2003 and the date i.e. 6thth April, 2003 on which the possession of the said premises was forcibly taken by the accused persons as per the version of said Kamal Prasad Verma (plaintiff in Title Suit no.28 of 2003).;