Jaganmohan Reddy, J.
1. By this petition the petitioners seek to have the charges framed against them in C. C No. 555 of 1957 by the Judicial IInd Class Magistrate, Badvel, quashed. A-1 is the son-in-law of A-2 who is the mother of A-3. The charge framed is that A-1 and A-2 on or about the 30th day of September, 1954 at Proddutur committed a theft in a building and that A-3 at Proddutur abetted A-1 and A-2 in the commission of the said offence of theft which was committed as a consequence of his abetment. A-1 and A-2 were charged on 27-7-1957 under Section 380, IPC while A-3 was charged of the abetment of that offence under Section 109 read with Section 380 IPC In Sriram v. State of Hyderabad ILR (1953) Hyd 293 (A) a Bench of the erstwhile Hyderabad Court, of which I was a party, held that interference in revision by the High Court in pending criminal proceedings should be rare unless the impropriety is a flagrant one and immediate action is necessary to prevent injustice. It is unusual for the High Court to interfere in revision in cases pending in the Subordinate Courts. An interference to quash proceedings should only take place in two contingencies (l) if the prosecution allegations, even when accepted as true, do not establish any offence against the accused, and (2) where an offence is established if the allegations are believed but there is no evidence at all to support the allegations. The invocation of revisional powers during the pendency of a case in the trial court cannot be made a substitute for the exercise of the right of appeal, which an aggrieved party always has after the termination of the proceedings. The High Court is, therefore reluctant to interfere in a case which has not yet been completed in the trial court and it would do so only in exceptional cases such as, where a person is being harassed by an illegal prosecution or where there is some manifest and patent injustice apparent on the face of the proceedings calling for prompt redress or where the evidence on record for the prosecution clearly does not justify a charge of any offence or where the trial is on the face of it an abuse of the Process of the Court. In that case one of the tests accepted as justifying the interference is that on a bare statement of the case without any elaborate argu- ments it should be sufficient to convince the High ; Court that it is a fit case for interference at the intermediate stage. But where there is evidence constituting the offence with which the accused is charged, the High Court will not interfere I in the lower court's proceedings, nor will it go into the question of credibility of that evidence. As long as there is prima facie evident to sustain the charge, no interference with the trial is called for. These above principles are clearly deductible from the case law cited therein and it would be futile to re-examine them.
2. A narration of the story of the prosecution and a cursory reference to the evidence led in support of the charge may now be useful in determining whether this is a case in which the High Court would be justified in quashing the proceedings at this stage. One v. Rangaiah Chetty, the father of Radhakrishnatah Chetty filed a complaint on 19-12-1956 before the Judicial IInd Class Magistrate, proddutur, who ordered investigation by the police under Section 156 (3) Cr.PC The police after investigation filed a charge sheet under Section 380 or 411 IPC against A-1, A-2, A-4 and A-5. The last two are related to one another as brothers-in-law.
A charge sheet was filed under Section 380 read with Section 109 against A-3. The charge-sheet alleges that one Mitta Thayaramma residing at, Proddutur adopted the complainant Rangayya Chetty. She died in 1918 leaving considerable moveable and immoveable properties. As the said Rangayya Chetti was a minor at the time of her death, the Official Trustee of Madras was appointed as property guardian in pursuance of the proceedings in the High Court. In 1952 the properties were handed over to Rangayya Chetty and his sons under the orders of the High Court.
The house bearing door No. 175, Bazar Street, proddutur, was the residential house of Thayaramma and this house was leased by the Official Trustee to one Jutur Nagamaiah, the father of A-3, and the husband of A-2, that six iron safes locked and sealed in a locked room, and two big mirrors, one centre big cluster, 8 pendent shall globes, two marble benches, were left in the house as they were umviedly and could not be removed to Madras by the Official Trustee; that in 1952 the Official Trustee handed over the possession to one Rangayya Chetti and his sons; that the said Nagamayya died in 1954 and that A-2 continued to remain in the same house.
It was further alleged that in the middle of September, 1994, A-2 had the furniture named above removed to the house of A-1 without the consent of the owners at the instance of A-3; that A-2 had the locks of room in which the iron-safes were left broken open and with the help of A-1 removed them to A-1's house at the instance of-A-3 who abetted the same; that an year thereafter A-1 sold two f the iron-safes to one Trutur Veerayya Ghetti who in his turn sold them to Ghouse Mohiddin and Chinna Venkata Subbiah; that on search by the police the two iron safes were recovered on 23-12-1956, one from the house of Ghouse Mohiddin and the other from China Venkata Subbaiah; that the other iron safes were kept deposited in the house of Thammadru Subbama and one of them was recovered in good condition from her house on 23-12-1956 and one more was recovered in a broken condition from the shop of Munireddi.
It is stated that a door-frame of the safe wag recovered from the house of A-5 on 23-12-1956. Further details of recoveries were given, namely certain silver-ware belonging to Rangayya Chetty were said to have been recovered from the safe recovered on 21-12-1956 from A-S who produced them, before the S.I. of Police and two big mirrors were alleged to have been recovered on the same day from the house of A-1 and identified by the complainant.
It is necessary at this stage to examine the case of the complainant Put forward by him before the complaint and on the date of the com. plaint.
3. In paragraph 5 of the complaint it is alleged there were 7 locked and sealed iron safes, kept in the house, 8 pendent small globes, 2 marble tables and one marble bench, that these articles were left over- in the house as they were unwieldy to be removed by the official trustee being. too heavy; that in 1952 the Official Trustee handed over possession of the building in which late jutur Nagamayya with his wife and son were living, to the sons of the complainant; that these seven iron safes referred to above could not be removed by the complainant and his sons to-Madras because they were too heavy and difficult for since they were already there during the' management of the official trustee, the complainant and his son did not think it necessary to remove them till an appropriate time came; that late Jutur Nagamayya father of A-3 had consented to allow them to remain there; that after the death of Nagamayya, A-3 and A-2 were allowed to continue in the house at their request for some time and ultimately vacated the house in 1954.
It is further alleged that A-3 was not residing at Proddutur and so he instructed his mother A-2 and his br0ther4n-Law A-1, to remove the above articles while they were vacating the house and as a consequence A-1 and A-2 removed them without the knowledge and consent of 'the complainant, whereupon the complainant caused a notice to be issued to A-3 for the return of the articles removed and that though A-1 was promising to. settle the matter, it was still under negotiation.
The notice to which complainant refers may now be examined. A notice issued by one Kalahasti Sarma, Advocate, Madras dated 11-10-1954 under instructions from the complainant V. Radhakrishnayya Chetti and four others, to A-3 is the following- effect. It says:
that formerly when the said estate was vested in the Official Trustee of Madras, your father,, the late Sri Nagamayya, became the tenant of the said premises; that after his death, the said tenancy is being continued in your names; that certain articles belonging to the said estate, four big mirrors, two long benches with marble tops, one table with marble top in the central hall, two iron safes besides other articles were left in your custody; at the inception of the tenancy of your father, that certain other articles belonging to the said estate were locked and kept in a room downstairs of the said premises; that when the trustees when they came off and on to Proddutur found that the said articles were kept intact by your father; that quite recently under instructions from you, your step-mother who continued to live in the said premises after your father's death, re moved the said articles and on information to that effect having been received by the trustees, one f the said trustees proceeded from here and verified the said fact On the 15th of the last month; that as the said articles belong to the said estate absolutely, the said trustees hereby apply to you for their immediate restoration....
To this a reply was sent by the lawyer of A-3, Sri A. Sahasranamam on 26th October, 1954 state ing that he had called for some information from Proddutur and that on receipt of the same he would address them In the matter in detail. He further requested the complainant through his advocate to depute some one on his behalf to take vacant possession of the building on 1-11-19.54 without prejudice to the contentions of either party. Previous to that there was another letter dated 28th September, 1954, addressed by Radha-krishnayya Chetti to Nagamayya in which he .states as follows:
We understand that certain articles belonging to us and left in custody with your late father in premises No, 199/200 Big Bazar Street, Proddusur have been removed by your stepmother who is residing there under instructions from you. On receipt of a telegram from our agent at Proddutur one of us proceeded from here and verified the said fact on the 15th instant.
As the articles above mentioned belong to us absolutely, we would request you to have those -articles restored to us at once. Lest We should be obliged to seek our remedies through Court, which procedure on our part we hope you will avoid.
This was replied to by Sahasranamam, Advocate by his letter dated 9th October, 1954. In that letter it was stated as follows:-
In the notice under reply, there is a reference to certain articles alleged to belong to you and left in the custody of my client's late father And since removed by my client's stepmother under my client's instructions. My Client is not aware of the said articles at all and much less the entrustment thereof to my client's father. Please arrange to furnish my client immediately with a list of the said articles and whether there is anything in writing or otherwise to identify or trace the identity of the said articles. Without particulars of the said articles, my client is not able to address you in detail at this stage. On receipt from you of the particulars, my client will address you at length in the matter,
It was evidently after this letter that the letter of the 11th October, was addressed to A-3. It is thus seen that on the 9th October, 1954, no list of articles alleged to have been entrusted to A-3's father was given and the case of the complainant and his son was that the articles specified subsequently in the letter of 11-10-1954 were entrusted by the Official Trustee to the father of A-3 at the time when the house was leased to him.
In the subsequent detailed reply dated 10th November, 1954, sent by A-3's advocate to the complainant's advocate, it was stated that the original tenancy was with the father of A-3 some 20 years ago and that the Official Trustee by his letter dated 13-1-1952 No. R. O. O. 345/52 required the -said Nagamayya Chetty to attorny to the complainant in whom the said estate came to be vested by reason of the directions of the High Court in their order made on the applications Nos. 4365 and 4578 of 1951 in O, O. 265/1951 and enter into a separate agreement of tenancy with him paying them the arrears of rent for the month expiring with 29-2-1952; that the said Nagamayya acted in accordance with that letter; that on his demise A-3 had continued the tenancy as he could not immediately determine the same; and that in October he informed the complainant of his Intention to have the tenancy terminated and in pursuance thereof the building was surrendered to him on 1-11-1954.
In the reply it was stated that till about August. 1954 his clients were not aware of the said items of furniture now referred to; that when the complainant's son made a reference to the said fur- niture, his clients wrote to the Official Trustee requiring him to let them know whether his records would show that the aforesaid items of furniture or any furniture as having been delivered to him when the tenancy commenced or at any other time as part of the tenancy or otherwise, that he had also requested the complainant's son to enlighten them whether there was anything in writing to identify the furniture.
The accused denied through their advocate that any safes were kept under lock and key and of their having been removed etc. It now remains to be stated that the Official Trustee, Madras by his letter R. O. C. 16180/54/OTKC dated 12-2-1959 Wrote to the advocate of A-3 in reply to his letter dated 20-10-1954 informing him that there was no record to show that any articles Were put in possession of his client's father Nagamayya at the inception of the tenancy or at any later date.
4. The documentary evidence produced as well as the oral evidence does not reveal that in 1932 or at any time subsequently, the articles alleged to have been entrusted to Jutur Nagamayys, were in fact so entrusted or left in the premises as alleged. If such articles were entrusted or left in the premises leased out to the late Nagamayya, the Official Trustee could easily have produced evidence to that effect or for that matter the complainant himself by production of the schedule in the O. P. could have shown that such articles which are the subject matter of the charge were in fact handed over to Nagamayya, or formed part of the estate of the deceased Thayaramma.
5. The very first ingredient of theft, namely, that there was property of the complainant or that it was removed from his possession cannot be established as there is no evidence whatsoever, nor is there any evidence to show that one of the rooms in the house let out to Nagamayya was; kept locked and remained in possession of the Official Trustee. The learned Public Prosecutor was fair enough to admit that there is that lacuna in the evidence of the prosecution.
A good deal of evidence relating to subsequent searches, and recoveries, has been led, but no seizure of the alleged silver-ware etc., with the initials in Telugu has been made before the mediators as required by law. In 1954 Itself neither the complainant nor his son knew what articles were in the house of the accused & they were trying to fish out information from the accused. Further there is no evidence whatever that A-2 and A-3 got any property alleged to have been entrusted to the late Nagamayya in their possession. It is not necessary to refer to the other evidence which can only assist the prosecution 11 the first ingredient of the charge is established, but having regard to the complete absence of any evidence on that aspect of the matter, the charge cannot be sustained. It will in these circumstances amount to a mere harassment of the accused to allow the proceedings to go on.
6. Learned Advocate for the accused has raised a legal contention, namely, that when a written complaint has been filed, the Magistrate must examine the complainant under Section 200 Cr.PC and proceed under Section 202. Instead, he proceeded under Section 156(3) which is illegal and would vitiate the entire proceedings as it causes prejudice t0 the accused, in that the old Procedure would be applicable if action was taken under Section 202 and the accused would have an opportunity to cross-examine before the charge and after the charge. But if action Is taken under Section 156(3), then the procedure under the amended Code would be applicable.
It Is Unnecessary to consider this point having regard to the conclusion arrived at on the facts.
7. In the view I have taken, the proceedings in O. C. No. 555 of 1957 are quashed and the accused directed to be discharged.