Judgment S.K.Katriar, J. 1. This application at the instance of the sole petitioner under section 482, Code of Criminal Procedure, 1973, is directed against the order dated 23.3.94, passed by Shri S.K. Srivastava, Judicial Magistrate, Patna, in Complaint Case No. 448(C)93 (Tr. No. 538/94) (Dr. Azat Shatru vs. Rattan Kumar Sinha), whereby cognizance of the alleged offence has been taken under section 379 IPC, and the petitioner herein has been summoned to stand his trial. 2. O.P. No. 2 had lodged an FIR on 9.1.93 with the Patna GRP alleging therein that he had gone to the Patna Junction Railway Station to see off his relatives in his ambassador car which he had parked there and went in to the platform. After he returned he found his car missing. Accordingly, Patna GRP Case No. 6/93 was registered, a copy of which is Annexure 1 to the quashing petition. Police conducted investigation into the allegations and submitted final form on 29.4.93 (Annexure 2), according to which the car in question was parked in the residential premises of the petitioner. The police stated in his aforesaid report dated 19.4.93 (Annexure 2), that O.P. No. 2 herein and the petitioner are full brothers, both sons of Late Baidya Nath Prasad. The car is registered in the name of the father. In view of the formation of opinion that it really relates to civil dispute within the family, no criminal case is made out. Thereafter O.p. No. 2 herein filed present complaint-cum-protest petition no. 448(C)93 in the court of learned CJM, Patna, in substance repeating the same allegations as in the aforesaid FIR. A copy of the complaint petition is Annexure 4 to the quashing petition. The aforesaid police report (Annexure 2), as well as eomplaint-cum-protest petition no. 448(C)93, were placed before Shri S.K. Srivastava, learned Judicial Magistrate, lst Class, Patna, who recorded the following lowing dated 31.5.93 :- (LOCAL LANGUAGE) 3. It is thus manifest that the learned Magistrate accepted the aforesaid police report (Annexure 2), and dropped the police case. However, in view of the aforesaid complaint-cum-protest petition, he directed the same to be registered as complaint case leading to the impugned order of cognizance. 4. While assailing the validity of the impugned order of cognizance, learned counsel for the petitioner submitted that late Sri Baidyanath Prasad, father of the petitioner and O.P.No. 2, died on 10.12.91. However, in view of the aforesaid complaint-cum-protest petition, he directed the same to be registered as complaint case leading to the impugned order of cognizance. 4. While assailing the validity of the impugned order of cognizance, learned counsel for the petitioner submitted that late Sri Baidyanath Prasad, father of the petitioner and O.P.No. 2, died on 10.12.91. O.P. No. 2 has always been at loggerheads with their father and the family, has lived separately and tried to grab family properties. He has also been creating innumerable problems with the family even during the lifetime of their father. He has invited my attention to the plaint in Partition Suit No. 30/90, instituted by O.P. No. 1 herein, in the court of learned Munsif, Hajipur, against late Baidyanath Prasad, the petitioner herein, and others for partition of the family properties. A copy of the plaint is marked- Annexure 10 which does state that O.P. No. 2 (the plaintiff therein) is now separated from the family, but demands partition of portion of the family properties. Learned counsel has also invited my attention to the application filed by late Baidyanath Prasad before the Consolidation Officer, Jhandaha, (Annexure 12), paragraph 17 illumines the position and is set out hereinbelow :- "That the objector has no legal right to file any objection to the petition for permission under section 6 of the Consolidation Act and the same having been filed malafide with a view to wreck the marriage of the petitioners daughter which is fixed for 21,5.1990 as the marriage cannot be performed if money is not raised by sale of the property and hence the same be rejected." 5. None appears for O.P.No. 2. Mr. Ram Krishna Prasad, learned APP, appears and opposes the quashing petition on the. ground that the contention of the petitioner amounts to introducing his defence which is impermissible in quashing petition. 6. Having considered the rival submissions of the parties, I am of the view that this application has to be allowed. On the basis of the entire materials on record I am convinced that this is entirely a family dispute. The brothers are at logger heads to take posession of the family properties which seems to have accentuated after the death of their father on 10.12.91. I have not the slightest manner of doubt that the present dispute is in substance a dispute of civil nature. The brothers are at logger heads to take posession of the family properties which seems to have accentuated after the death of their father on 10.12.91. I have not the slightest manner of doubt that the present dispute is in substance a dispute of civil nature. I am thus unable to agree with the submission of the learned APP that the petitioners contention amounts to introducing his defence in the present quashing petition. That may normally have been the position, but not in the facts and circumstances of the present case, inasmuch as the contention is based on the judicial proceeding pending between the parties. The position is further manifest from the aforesaid police report, marked Annexure 2. 7. I am, therefore, constrained to observe that the learned Judicial Magistrate did not act with sufficient care in passing the impugned order of cognizance. In view of the aforesaid police report marked Annexure 2, he should have exercised greater care in passing the impugned order. He ought to have conducted enquiry under section 202 of the Code. The impugned order, therefore, suffers from non-application of the mind. I may refer in this context a judgment of the Supreme Court reported in AIR 1998 SC 128 (Pepsi Foods Ltd. V/s. Special Judicial Magistrate), wherein it has been held that summoning of an accused in a criminal case is a serious matter. Criminal Law cannot be set into motion as a matter of course. It is not that the complainant has to bring only two witnesses to support his allegations in the complaint to have the criminal law set into motion. The order of Magistrate summoning the accused must reflect that he has appfted his mind to the facts of the case and the law applicable thereto. He has to examine the nature of allegations made in the complaint and the evidence both oral and documentary in support thereof and would that be sufficient for the complainant to succeed in bringing charge home to the accused. 8. In the result, this quashing petition is allowed, the impugned order of cognizance dated 23.3.94, passed in complaint case No. 948 (C)93(Tr. No. 538 of 1994), is hereby set aside. In view of the facts and circumstances of the present case, the parties are advised to act with self-restraint. They should constantly remind themselves that they are full brothers.