The central legal point established in the judgment is that the removal of property in assertion of a claim of right, even if ill-founded, does not constitute theft under the Indian Penal Code.

Madhavendra Saran, J.

1. This application under Sec. 482 of the Code of Criminal Procedure (in short as the Code) has been filed for quashing the order dated 4.7.1997 passed, by Shri A.K. Singh, Judicial Magistrate, 1st Class, Gaya in Tr.No. 418/97 arising out of Complaint case No. 43/94 whereby and whereunder he has taken cognizance under Sections 144, 148, 427, 323 and 379 of the Indian Penal Code.

2. The case of the complainant-opposite party No. 2, in short, is that the complainants father and father of accused-petitioner No. 1 Maqsood Ahmad Khan were full brothers and they were continuing in possession of the properties and the ancestral properties have not been partitioned. However, some properties were partitioned among them by virtue of Khangi Batwara. It is his further stand that some land of village Piparbar, Tola Salai Tand, Police station Dumaria, District Gaya were gifted to the complainants grand father and accused petitioner No. 1 and since the date of execution of deed, father of petitioner No. 1 came in possession of the gifted land. It is alleged that on 17.6.1993 at about 1.00 PM the accused persons forming an unlawful assembly armed with deadly weapons came to the house and started removing Tiles, Bans Balli Chaukhat, door etc. from the portion of the house in occupation of the complainants father. It is further alleged that accused No. 1 Maqsood Ahmad Khan was armed with rifle and other accused persons were armed with Lathi, Sibbal, spade. On objection being raised by the complainant, accused No. 1 save threat of dire consequences and the accused persons assaulted the informant with fist and slaps. The complainant sustained a loss of rupees more than twenty thousand from the removal of the articles and damage caused to the house.

3. It appears that on the basis of the said allegation F.I.R. was lodged before the Police vide Dumaria P.S. Case No. 3/94 in which the police after investigation submitted final report as mistake of fact. As protest petition was pending from before, therefore the same was treated as complaint. The complainant was examined on solemn affirmation and during inquiry under Section 202 of the Code two witnesses were examined. The learned Magistrate by the impugned order dated 4.7.1997 took cognizance under Sections 144, 148, 427, 323 and 379 of the Penal Code against the petitioners-accused. Against the said order the petitioners have preferred the present application for quashing before this Court.

4. The submission of learned Counsel for the petitioners is that even if the whole allegation in the complaint petition is accepted as true on its face value, even then no offence of theft is made out. His further submission is that according to the complainants case the father of petitioner No. 1 and that of the complainant were full brothers and there was no partition in the family and the alleged house from which the articles are alleged to have been removed was also in joint possession of the complainant and accused petitioner No. 1 and hence the offence under Sec.379 of the Penal Code is not made out. His further submission is that in the present case admittedly the family was joint and the place of occurrence i.e. the house was gifted to father of complainant as well as accused petitioner No. 1 and so there cannot be a case of theft where the property is in joint possession. He then referred to the statement of P.Ws. 1 and 2 recorded during inquiry under Sec.202 of the Code and submitted that their evidence on the question of assault is not consistent one. According to P.W.1, the Mukhiya assaulted with fist and slaps whereas according to P.W.2, Maqsood Ahmad Khan by fist and kick and Ladle by means of Hura portion of Lathi assaulted the complainant. He pointed out that no injury report was produced before the court below in support of the alleged allegation of assault. His further submission is that though the alleged occurrence took place on 17.6.1993 but the police was infor