RATTAN KUMAR SINHA Vs. STATE OF BIHAR

JUDGEMENT

(1.) THIS application at the instance of the sole petitioner under section 482, Code of Criminal Procedure, 1973, is directed against the order dated 23.3.94, passed by Shri S.K. Srivastava, Judicial Magistrate, Patna, in Complaint Case No. 448(C)93 (Tr. No. 538/94) (Dr. Azat Shatru vs. Rattan Kumar Sinha), whereby cognizance of the alleged offence has been taken under section 379. IPC, and the petitioner herein has been summoned to stand his trial.

(2.) O .P. No. 2 had lodged an FIR on 9.1.93 with the Patna GRP alleging therein that he had gone to the Patna Junction Railway Station to see off his relatives in his ambassador car which he had parked there and went in to the platform. After he returned he found his car missing. Accordingly, Patna GRP Case No. 6/93 was registered, a copy of which is Annexure 1 to the quashing petition. Police conducted investigation into the allegations and submitted final form on 29.4.93 (Annexure 2), according to which the car in question was parked in the residential premises of the petitioner. The police stated in his aforesaid report dated 19.4.93 (Annexure 2), that O.P. No. 2 herein and the petitioner are full brothers, both sons of Late Baidya Nath Prasad. The car is registered in the name of the father. In view of the formation of opinion that it really relates to civil dispute within the family, no criminal case is made out. Thereafter O.p. No. 2 herein filed present complaint -cum - protest petition no. 448(C)93 in the court of learned CJM, Patna, in substance repeating the same allegations as in the aforesaid FIR. A copy of the complaint petition is Annexure 4 to the quashing petition. The aforesaid police report (Annexure 2), as well as eomplaint -cum -protest petition no. 448 (C)93, were placed before Shri S.K. Srivastava, learned Judicial Magistrate, lst Class, Patna, who recorded the following lowing dated 31.5.93 : - (LOCAL LANGUAGE)

(3.) WHILE assailing the validity of the impugned order of cognizance, learned counsel for the petitioner submitted that late Sri Baidyanath Prasad, father of the petitioner and O.P.No. 2, died on 10.12.91. O.P. No. 2 has always been at loggerheads with their father and the family, has lived separately and tried to grab family properties. He has also been creating innumerable problems with the family even during the lifetime of their father. He has invited my attention to the plaint in Partition Suit No. 30/90, instituted by O.P. No. 1 herein, in the court of learned Munsif, Hajipur, against late Baidyanath Prasad, the petitioner herein, and others for partition of the family properties. A copy of the plaint is marked - Annexure 10 which does state that O.P. No. 2 (the plaintiff therein) is now separated from the family, but demands partition of portion of the family properties. Learned counsel has also invited my attention to the application filed by late Baidyanath Prasad before the Consolidation Officer, Jhandaha, (Annexure 12), paragraph 17 illumines the position and is set out hereinbelow : - "That the objector has no legal right to file any objection to the petition for permission under section 6 of the Consolidation Act and the same having been filed malafide with a view to wreck the marriage of the petitioner 'sdaughter which is fixed for 21,5.1990 as the marriage cannot be performed if money is not raised by sale of the property and hence the same be rejected."