KAVIRAJ BASUDEVANANDA Vs. THE STATE

JUDGEMENT

(1.) THIS Rule must be made absolute.

(2.) THE Rule is against an order dated the 12th March, 1969, passed by Sri K.R. Banerjee, Magistrate, 1st Class, Howrah in Case No. G. R. 1011 of 1967/ T. R. 141 of 1963 - -charging the accused -petitioner Kaviraj Basudevananda under Section 406 of the Indian Penal Code where to he pleaded not guilty and claimed to be tried and fixing two dates for evidence.

(3.) MR . Chintaharan Roy, Advocate (with Mr, Arun Kishore Das Gupta, Advocate), appearing on behalf of the accused -petitioner, in support of the Rule, has made a two -fold submission. The first contention of Mr. Roy is that the present proceedings are unwarranted and untenable, in view of the two earlier suits in the Civil Court now pending, namely, one in the court of the learned Munsif, 5th Court at Howrah and the other in the Hon'ble High Court over the said properties. Mr. Roy argued in this context that the cause of action is essentially civil in nature and the criminal proceedings are an abuse of the process of the Court. The second contention of Mr. Roy is that the date of the incident is, ex facie, significant being the 21th day of March, 1948 and for agitating such an old matter, the criminal court is, certainly, not the proper forum. Mr. Narayan Ranjan Mukherjee, Advocate, appearing on behalf of the State has submitted that there is nothing on the record to show that there is a suit pending in the High Court and that there is no bar in law to the institution of the present criminal proceedings, merely because, over the same property a suit in the civil court at Howrah is pending. With regard to the second contention raised by Mr. Roy, Mr. Mukherjee has submitted that it is, undoubledly, unusual but not illegal and he left the matter to the discretion of tile Court.