GAURI SHANKAR JHA Vs. CHINTANATH JHA

JUDGEMENT

(1.) Criminal Revision No. 1056 of 1983 has been filed by Gaud Shanker Jha & others (first party) against Chinta Nath Jha & others (second party) against the order dated 5-10-1983 passed by Sri R. N. Shashtri, Executive Magistrate, Djgghar who refused to take action under Section 188 of the Indian Penal Cods (for short I. P. C.) agaiast the 2nd party by taking aid of Section 195 (1) (a) of the Code of Criminal Procedure (for short Cr. P. C.) for violation of the order of attachment under Section 146 (1) Cr. P. C., by putting a Gumti on the attached land. Cr. Rev. No. 906 of 1988 has been filed by the second party Chitanath Jha against the first party Gauri Shankar & others, challenging the order passed by the Judicial Magistrate making observation that the complaint filed by the second party under Section 447 I. P. C. against the first party Gaurishankar Jha & others on 12-8-1988 was not maintainable, as action under Section 188 I. P. C. should have been taken by the Court and further the learned Magistiate by the same order has acquitted the accused persons of the charges under Section 447 I. P. C. Since the parties are common and the land in dispute is same, so both the revisions have been heard together and are being disposed of by this common judgment.

(2.) It appears that the parties in this case are brothers and nephew coming from a common stock. It is said that the joint property of the family had been partitioned in the Year 1968 between the first and second parties and the same was confirmed by judgment dated 31-3-1984 passed in Title Suit No. 203/84 by the learned Subordinated Judge, Deoghar.

(3.) Aproceeding under Section 145 Cr.P.G. was started by Gaurishanker Jha & others In respect of a vacant piece of land, in which the second party elaimed to have their share. During the pendency of the proceeding under Section 145 Cr. P. C. this disputed plot was attached under Section 146 Cr. P. C. by order date 6-11-1982 and the parties were for bidden alter or change the nature of the disputed land by any construction. It is said tnat the second party violated the order of attachment by putting a gumti for seiling articles during the Shravani mela and when the first party tried to restrain, the second party became violent and wanted to assault the first party who restrained themselves. Then the first party tiled an application for action under Section 195 (1) (a) Cr. P. C. for prosecution under Section 188 I. P. C. against the second party but the Court below rejected the prayer of the first party on 5-10-1983 against which order the Cr. Rev. No. 1056 of 1983 was filed and admitted on 3-1-1984. The lower court record was summoned, as appears from the order sheet dated 8-4-1984. The lower court record was received in the High Court. No interim order was passed by this Court.