H.C. Mishra, J.

Heard learned counsel for the petitioners and learned counsel for the State as also learned counsel for the complainant-opposite party No. 2.

2. The petitioners are aggrieved by the order dated 6.7.2011 passed by Sri Piyus Srivastava, learned Judicial Magistrate, Ranchi, in Complaint Case No. 1019 of 2007, whereby, the application filed by the petitioners under Section 245 of the Cr.P.C., for discharge, has been rejected by the Court below, finding that there are sufficient materials to frame charge against the petitioners for the offence under Section 404 of the Indian Penal Code.

3. The petitioners have been made accused in Complaint Case No. 1019 of 2007 filed by the widow of the brother of these petitioners. The brother of these petitioners was working in Indian Army and he was married to the complainant opposite party No. 2. It appears that there was some matrimonial dispute between the husband and the wife, due to which, she was living separately, and in the year 1989 she had filed a case claiming maintenance from her husband, which was allowed by the competent Court and she was getting the maintenance. However, according to the claim of the widow, i.e., complainant-opposite party No. 2, the difference between them had been patched up and at the time of the death of her husband, she was living with her husband in the matrimonial home. However, this fact is disputed by the petitioners and according to the petitioners case, the widow was living separately throughout and a matrimonial case for dissolution of the marriage by the decree of divorce had been filed by her late husband.

4. According to the case of the complainant, her husband was employed in Indian Army and he retired from service in the month of October 2006. Subsequently, he became ill and he was treated at Namkom Military Hospital, Ranchi, but his condition deteriorated and lastly, he was admitted at Nagarmal Modi Seva Sadan, Ranchi, where he expired on 8.11.2006. Thereafter her husband's brothers, i.e., the petitioners, started to conceal and grab the movable and immovable property of her husband. After the completion of the last rites of her husband, the complainant on 23.11.2006 tried to locate his belongings, such as, Military Box, Pension Book and other papers, but she could not get the same. According to her case, not only the papers but her husband's gold ring, chain etc., were also missing and on protest, she was assaulted and ousted from her matrimonial house. The complainant took the help of the police and some of the belongings were handed over to her, but her husband's other belongings, including the papers relating to the house, in which they were living and the land purchased by her husband at Delhi, Share Certificates and other important documents were not handed over to her. With these allegations, the complaint petition was filed, claiming that the accused persons had committed the offence under Sections 379, 403, 404, 465 and 448 of the Indian Penal Code.

5. The statement of the complainant was recorded on solemn affirmation and she also examined four witnesses at the enquiry stage, on the basis of which, the Court below by order dated 27.3.2010, found the prima facie offence against the petitioners only under Section 404 of the Indian Penal Code, and ordered for issuance of summons against the petitioners. After appearance of the petitioners in the Court below, two witnesses were examined before charge, who are the complainant and her son. After examination of these witnesses, the petitioners filed an application under Section 245 of the Cr.P.C., stating that in the facts of this case, no offence was made out under Section 404 of the Indian Penal Code and as such they may be discharged, but the same was rejected by the Court below by the impugned order, holding that there are sufficient materials on record to frame the charge against the accused-petitioners for the offence under Section 404 of the Indian Penal Code. Aggrie