SUSHIL KAR Vs. SYED MEHDI

JUDGEMENT

(1.) By the instant revisional application under section 482 of the Code of Criminal Procedure (hereinafter referred to as Code), the petitioners-accused have prayed the Court for quashing the relevant proceedings, being Case No. C/249 of 1986 before the learned Metropolitan Magistrate, 12th Court. Calcutta, on the grounds set forth therein.

(2.) On 23.7.86 the opposite party No. 1-complainant had filed a petition of complaint before the learned Additional Chief Metropolitan Magistrate, Calcutta, against the four petitioners-accused and another under sections 324, 379 and 440, I.P.C., on the allegations made therein. It had been contended, inter alia, therein that he (complainant) is the acting Managing Mutwali of Imambara and Trust Estate at 10, Portuguese Church Street, Calcutta-700 001, which is an exclusive Wakf property, now under the direct control of this Hon'ble Court and a Special Officer has also been appointed to look after the affairs of the said Trust. On 21.7.86, when the complainant was away from the aforesaid premises the "accused" had come to the spot at 11.30 A.M. with apparatus and had broken open the shutters which were fixed in front of two shops within the Imambara premises. The "accused" had dismantled the said shutters and had taken away the same in presence of the local people without talking to any authority of the Estate. The "accused" by "misusing their own respective power" had exercised the same in a detrimental way, and is liable to be punished in accordance with law. The learned Additional Chief Metropolitan Magistrate, upon perusal of the complaint and upon examination of the complainant and two other witnesses and the materials on record was of opinion that there was sufficient ground for proceedings against the accused persons under section 379, I.P.C. only, and had accordingly directed issue of summons against them all by his order dated 23.7.86. A petition appears to have been subsequently filed on behalf of the accused on 2.2.88 praying for their discharge on the grounds made out therein, which was also rejected by the reamed Magistrate, to whom the case was assigned by order dated 21.6.88. The four petitioners-accused have thereupon moved this Court in Revision under section 482 of the Code for quashing the relevant proceedings mainly on the ground that the principal ingredient of an offence punishable under section 379, I.P.C. have not been made out in the absence of any whisper about dishonest intention on the part of the petitioners -accused as also intention to cause wrongful gain to themselves. It had further been contended by them that the criminal prosecution has been instituted by the complainant maliciously for wreaking vengeance on the accused and to stall the action taken by them for stopping unauthorised construction at premises No. 10, Portuguese Church Street, and unauthorised and illegal construction at Karbala-Mohammad Lane on the back portion of the aforesaid premises, as stated at length in the relevant application. It is further contended by the petitioners-accused that the opposite party No. 1-complainant, in gross abuse of the process of criminal court has been continuing encroachment on Karbala Mohammad Lane with impunity in gross violation of law by putting the petitioners, who are public screams, acting according to law, on the dock for an alleged offence punishable under section 379, I.P.C.

(3.) As already indicated above, process had been issued by the learned Magistrate by his relevant order dated 23.7.86 under section 379, I.P.C. against all the four petitioners-accused herein and another for having allegedly committed an offence of theft punishable thereunder on the basis of the complaint filed by the opposite party No. 1-complainant. "Theft" has been defined in section 378 of the Indian Penal Code as follows :