ORDER

This is a petition for quashing the order dated 30.06.2012, passed by the Judicial Magistrate, Chapra, in T. R. No. 316 of 2012, arising out of Complaint Case No. 3814 of 2007 by which the petition under Section 245 Cr.P.C for discharge the petitioners.

2. The prosecution case for which a Complaint petition was lodged by the informant Chandrika Singh that the land wherein Khata No. 306, Plot no. 1319 and area of 1 Bigha, 19 Katha, 11 dhur is the ancestral land of the complainant and there was a mango orchard in the aforesaid plot. It is alleged that the petitioners along with 4 or 5 unknown persons on 1.11.2007 at 8 P.M were cutting the mango tree. On hearing the sound of cutting of the tree the informant came and protest but the accused persons abused and assaulted him and take away the wood of mango tree worth Rs. 5000/- thereafter cognizance taken place.

3. On the complaint the complainant and witnesses examined on oath and taking into consideration the statement of complainant, witnesses the process issued after taking cognizance.

4. The order taking cognizance was challenged before the Hon’ble High Court in Cr. Misc. No. 40188 of 2008, however, the case was withdrawn by order dated 16.12.2011 with an observation that he may raise the issue at the stage of discharge. The petitioner raised all the issues at the stage of the framing of charge before the trial Court for discharge but the same was rejected on the ground that land recorded in the name of Mahanth Raghunath Das. The defence has not produced any document to indicate that the land is trust property. The title suit has not been decided hence the offence under section 379 of the I.P.C. is made out as there are prima-facie material for the same in the case diary.

5. The learned counsel for the petitioner submits that the allegations made in the complaint are inherently improbable and manifestly abused. The entire prosecution case are false and concocted version, malicious with ulterior motive to wreck vengeance to spit on the face. It is further asserted that in the complaint the complainant claim the land as ancestral but the khatian shows the land recorded in the name of Mahanth Raghunath Das Chela of Amar Das Bairagi. It is asserted that land belong to Ram Janki Temple trust. The property came in succession to surviving last chela Ragho Das. After him the property managed by villagers for the trust. In the meantime antisocial elements started claiming the land of trust by forging document of title by executing sale deed. The matter brought to the notice of Religious Trust Board. The Bihar Religious Trust Board registered the trust with registration number 3662 took the management of trust and appointed petitioner as the President of the trust committee. The steps were taken for taking step against person for illegal activity against the trust property. The petitioner with the permission of the Administrator Cum Special Officer of the Bihar Religious Trust Board brought title suit no. 446 of 2006 on 24.11.2006 for declaration of sale deed executed as void against the complainant as defendant in the suit. The petitioner joined with other including the Administrator Cum Special Officer of Bihar Religious Trust Board as the plaintiffs. The President of the Trust Committee instituted a criminal case for theft of idol of the Mandir in trust, and police after investigation of the said case submitted charge sheet for offence u/s 379 of the I.P.C. against the complainant on 30.11.2007 in Derni P.S.Case No. 40/2007 dated 15.5.2007. This led to the filing of the criminal case against the petitioner & other. The complaint shows the date of occurrence as 1.11.2002 but the complaint has been filed on 1.12.2007 without any explanation for delay or not moving the police for lodging the F.I.R. indicates the ulterior motive.

6. The learned counsel for O.P. No.2 though notice sent, his name appearing in the daily cause list did not chose to appear. The learned counsel for the O.P. no