J.R.CHOPRA,J. - (1.) THIS petition is directed against the order of the learned Munsif and Judicial Magistrate, Ladnu dated 1410 -1987, whereby the learned Magistrate has taken cognizance against the accused -petitioner for the offences under Sections 300 and 457 IPC.
(2.) THE facts necessary to be noticed for the disposal of this petition briefly stated are: that complainant -non -petitioner No. 1 Gaurishanker and accused -petitioners Kashiram, Brahmanand and Mst. Rukmani are the closest relations. Accused Kashiram is the real brother of complainant Gaurishanker and accused Brahmanand is the real brother's son of complainant Gauri Shanker and Mst. Rukmani is the real brother's wife of complainant Gauri Shanker. It is alleged that both the parties have an ancestral house belonging to Shri Motilal, father of Kashiram and Gaurishanker. This house is alleged to have been partitioned between the parties. Complainant Gaurishanker alleges that the room in dispute came to his share on the basis of a Will executed by his father whereas the contention of accused Kashiram is that this room in the Will comes to his share. It was actually let out to one Mst. Sharda Devi and when she ceased to be a tenant complainant Gauri Shanker put his lock by removing certain articles from it. As regards the illegal possession of this room by complainant Gauri Shanker a complaint was submitted on 14 -10 -1986 to the Deputy Inspector General of Police, Jodhpur which was registered in Police Station, Ladnu on 4 -11 -1986 against complainant Gauri Shankar. On 6 -11 -1986, the Police inspected the site of this room in dispute. The contention of complainant Gaurishanker is that in the night intervening between 5th and 6th of November, 1988, the accused -petitioner broke open the locks of this room, removed certain articles of Gauri Shanker lying there and put their lock. He came to know about this fact in the night itself but he did not raise any hue and cry because he was threatened that if he will raise any hue and cry, he will be beaten. No report was made on 6 -11 -1987 because efforts were made to compromise the matter but ultimately on 7 -11 -86 a report of this incident was lodged at the Police Station Ladnu but it is alleged that the Police was siding with the accused petitioners and, therefore, the complainant Gauri Shanker filed a private complaint in the court on 14 -11 -1986. That private complaint was forwarded to the Police for investigation. After usual investigation, the Police found that no theft has been committed in this case In both the complaint cases, the police came to the conclusion that no sign is found of anything lying in the room in dispute and their removal. According to the police, it was found to be a dispute about partition of the house in dispute and each party claims possession of this room and each accused the other party for removal of articles lying therein. The police submitted the Final Report in the complaint filed by accused Brahmanand and as regards this case, the police felt that if actually, complainant Gauri Shanker was present at the time of removal of articles belonging to him from the room in dispute, he would have raised hue and cry in the night itself and would have called the neighbourers to witness the incident. More over, on 6th November, 1986, when the police went for inspection of the room in dispute on the complaint filed by accused Brahma Nand, he should have reported this matter to the police. Even in the report that was lodged before the police, it was never alleged that any partition has taken place on the basis of the Will executed by Motilal. Even in the complaint that was lodged before the Court, such an allegation was not made. In these circumstances, the police came to the conclusion that it is a false case instituted by Brahmanand against him. One more fact was noticed by the Police that wife of Brahmanand died on 2 -11 -1986. Thus, Brahmanand and his family were in great mourning and, therefore, it was not possible for them to have committed a criminal offence during the those mourning period.
(3.) I have heard Mr. H.M. Saraswat, the learned Counsel appearing for the accused -petitioners and Mr. B.C. Mehta, the learned Counsel for the complainant -non -petitioner No. 1 as also Mrs Chandralekha, the learned Public Prosecutor for the State. I have cerefully gone through the record of the case.;