MAC CULLOCH Vs. STATE

JUDGEMENT

(1.) THIS Rule is at the instance of the Accused-Petitioner, mac Culloch for quashing proceedings under Sections 147, 323, 341, 448, 504, 427 and 506 of the Indian Penal Code, being case No. C/293[73, pending against the Petitioner and others in the Court of the Chief Presidency Magistrate, calcutta.

(2.) THE facts leading on to the Rule are short and simple. A petition was filed by the Complainant, Md. Sharfuddin on the 30th January, 1973, before the learned Chief Presidency Magistrate, calcutta under Sections 147, 323, 341, 448, 504, 427 and 506 I. P. C. The cause title mentioned that the application is under Section 156 (3) Criminal Proceeding Code and it contained a prayer to the effect that the police may be direct ed to take cognizance of the offences committed on treating the complaint as f. IH. or in the alternative process may be issued against the accused. A list of witnesses was given below the said application. The learned Chief Presidency Magistrate, Calcutta, examined the complainant on solemn affirmation and by his order dated the 30th January, 1973, held that a prima facie case was made out and summoned all the accused persons under Sections 147, 448, 504, 427 and 506 I. P. C. :- the accused No. 1 further under Section 323 I. P. C. and the accused Nos. 5 and 6 also under section 341 I. P. C. The accused No. 5 mac Culloch, who is the present petitioner, appeared in the Court below of the 19th February, 1973 and was direct ed to be released on a bail of Rs. 5001/ -. He impugned the said proceedings and obtained the present Rule.

(3.) THREE points have been raised by Mr. Dinesh Chandra Roy, Advocate (with Mr. S. P. Roy Choudhury, Advocate) in support of the Rule. The first one relates to merits and is to the effect that the materials on the record do not disclose any mens rea on the part of the accused in a dispute, between a tenant-landlord and a sub-tenant, that is essentially of a civil nature, and for a proper determination whereof the criminal court is not the proper forum. The second dimension of his arguments is that the petition filed is a hybrid one being both under Sections 156 (3) and 4 (1) (h) Criminal procedure Code and the cognizance taken thereupon by the learned Chief presidency Magistrate, Calcutta has been bad, vitiating thereby all the subsequent orders. The third and last branch of Mr. Rays contention relates to a non-performance to the mandatory provisions of Section 200 Criminal Procedure code inasmuch as the learned chief Presidency Magistrate, Calcutta while taking cognizance of die offences. did not examine the witnesses present along with the complainant. In this con text he submitted that no less than six witnesses were mentioned in the petition of the complaint. Mr. Abdul Hossain, advocate (with Mr. Bidyut Kumar banerjee, Advocate) appearing on be half of the Complainant-Opposite Party no. 2 joined issue contending inter after that it is. premature at this stage to quash the criminal proceedings of merits on the ground that there is no mens rea disclosed; that the cognizance taken by the learned Chief Presidency magistrate, Calcutta is on the alternative prayer made in the petition of complaint; and that there has been no non-conformance to Section 200 criminal Procedure Code; inasmuch ass there are no materials on the record to establish that witnesses were present of the occasion along with the complain ant. Mr. Narendra Nath Sur, Advocate, appearing on behalf of the State also opposed the Rule. He submitted in the first instance that there should be no quashing of the criminal proceedings at this stage and the points raised may be decided on proper materials adduced during the trial. Mr. Sur further con tended that the complainant was examined and the relevant papers were persued before the processes were issued and as such there has been no prejudice.