JUDGMENT 1. - Descending from a common ancestor, Late Sri Sheo Lal, Shiam Sunder & Bhagwan Sahai were the real brothers. Whereas Shiam Sunder was blessed by the Almighty with two sons, namely Gopi Chand and Lallu alias Lalit Kishore (petitioner No. 1), Bhagwan Sahai died issueless leaving behind him his widow. Smt. Suraj Devi (the original complainant, since deceased). The families of both the brothers were living in their ancestral house situate in Baba Harish Chandra Marg, Chand Pole Bazar. Jaipur. Lalit Kishor's son, Ravi Mohan had allegedly been adopted by Bhagwan Sahai and Smt. Suraj Devi. A locker in Johri Bazar Branch of New Bank of India, Jaipur is also stated to have been taken on 16.4.1985 in the joint names of Smt. Suraj Devi & Ravi Mohan to keep the valuables & jewellery of the family in safe custody. 2. Late Sri Bhagwan Sahai died on 2.2.85 of some ailment in the local hospital. Just about 15 days before his death Bhagwan Sahai had gone to stay with Smt. Kanta Devi, who happened to be the married daughter of the sister of Bhagwan Sahai's wife Smt. Suraj Devi. Since he died only one day after his return therefrom the petitioners; who are father and son interse, suspected some foul play by Smt. Kanta and her husband Yogendra Kumar in his death. The suspicion was reported to the police whereupon proceedings under section 174 Cr.P.C. were taken but those appear to have finally been terminated with no cation against anybody. 3. The death of Bhagwan Sahai left its scars on the interse relations between the adoptive mother Smt. Suraj Devi on the one hand and the adopted son Ravi Mohan and his natural father Lalit Kumar and real brother Himmat Bahadur on the other Smt. Suraj Devi first lodged a FIR on 20.9.87 against the petitioners and Ravi Mohan for their unlocking the joint locker in the Bank and taking away the valuables therefrom Proceedings under section 107/116 Cr.P.C. were started against them. Then on 24.2.88 a FIR was lodged by her against them for taking away some articles from her room. Crime No. 57/88 under section 453, 380 IPC was registered but a Final Report was submitted in that case in June 1991. Smt. Suraj Devi then filed a complaint against the petitioners on 8.4.1988 in the court of Addl. Then on 24.2.88 a FIR was lodged by her against them for taking away some articles from her room. Crime No. 57/88 under section 453, 380 IPC was registered but a Final Report was submitted in that case in June 1991. Smt. Suraj Devi then filed a complaint against the petitioners on 8.4.1988 in the court of Addl. Chief Judicial Magistrate No. 5 Jaipur City, Jaipur whereupon the learned Magistrate took cognizance of offences under section 420 read with 120-B I.P.C. and summoned the present petitioners as accused thereunder. 4. During the pendency of her complaint Smt. Suraj Devi died on 2.1 1989 On 1.3.89 Smt. Kanta Devi prayed for her substitution in place of the deceased Smt. Suraj Devi, on the basis of a will, alleged to have been executed by the deceased aunt in her favour. Despite serious objections from the petitioners, the application of Smt. Kanta Devi was allowed by the learned Magistrate by his impugned order dated 28.1.91 and Smt. Kanta Devi was permitted to prosecute the complaint filed by deceased Smt. Suraj Devi. 5. Mr. A.K. Sharma, the learned counsel for the petitioner, urged that the impugned order was illegal or in any case amounted to abuse of the process of the court. Nobody appeared on behalf of Smt. Kanta Devi, to oppose the petition. 6. A Criminal prosecution based on a private complaint should ordinarily cease to proceed when the offence involved is minor. This principle seems to have been statutorily recognised in Sections 249 and 256 Cr.PC. Regulating the procedure for warrant cases Section 249 empowers the Magistrate to discharge an accused for absence of the complainant prosecutor, provided the offence involved in the case is compoundable and non- cognizable and the Magistrate, in the facts and circumstances of the case, thinks it fit and proper to do so. Likewise Section 256 empowers him to pass similar order in summons cases. The doctrine underlying both these sections thus gives recognition to the power of the Magistrate to dismiss a private complaint for minor offences and discharge or acquit the accused, as the case may be, in appropriate cases. The discretion vested in the Magistrate in both these provisions is a judicial discretion and should be exercised judicially and not arbitrarily. The doctrine underlying both these sections thus gives recognition to the power of the Magistrate to dismiss a private complaint for minor offences and discharge or acquit the accused, as the case may be, in appropriate cases. The discretion vested in the Magistrate in both these provisions is a judicial discretion and should be exercised judicially and not arbitrarily. If on a consideration of the facts and circumstances of a case, including the conduct of the parties and the nature of offence involved therein, the Magistrate feels satisfied that dismissal of the complaints for absence of the complainant would do justice to both parties, he should dismiss the complaint rather than adjourn the hearing of the case to some other date. 7. In the instant case the offence complained of was punishable under section 420 I.P.C. Offence under section 420 was compoundable with permission of the court. The complainant, Smt. Suraj Devi had died on 2.1.89 and for that reason she could not and did not appear on 4.2.89. The facts attending on the exercise of his discretion by the Magistrate under section 249 Cr.PC. were that the parties were close relations, Lalit Kishore accused was sufficiently old and a retired person, the complainant was survived by nobody save the persons involved in the litigation and that the subject matter of dispute was undivided "ancestral house property and operation, of a locker, in joint names by one of the holders of the lockers. All these factors should have tilted the balance of the exercise of the discretion of the Magistrate for dismissal of the complaint under section 249 Cr.PC. rather than to permit a distant relation to continue the criminal litigation on the basis of an alleged will, particularly when the offence alleged to have been committed by the petitioners had been twice investigated by the police and the commission thereof was negatived. The facts and circumstances of the case clearly spoke that the dispute between the parties was purely of civil nature. Permitting the criminal litigation regarding a dispute of such a nature amounts, in my opinion, to abuse of the process of the court of the learned court & such abuse is required to be prevented in order to secure justice for the petitioners. 8. Permitting the criminal litigation regarding a dispute of such a nature amounts, in my opinion, to abuse of the process of the court of the learned court & such abuse is required to be prevented in order to secure justice for the petitioners. 8. In the result the criminal proceedings pending against the petitioners in this case before the learned Magistrate are hereby quashed, the impugned order set aside and the complaint filed by Smt. Suraj Devi and. after her death, allowed to be continued by Smt. Kanta Devi is hereby dismissed and the petitioners discharged of the offence under section 420 read with 120-B I.PC.> Petition allowed. *******