1. This is a petition for revision of an order of a learned Presidency Magistrate convicting the accused persons of an offence under Section 341, Penal Code and sentencing each of them to pay a fine of Rs. 50 and in default of payment of the fine each to undergo simple imprisonment for one month.
2. How this dispute could be made the subject matter of criminal proceedings I find it difficult to understand. The learned Magistrate seems to think that it was not a civil dispute. But if ever there was a civil dispute this is one.
3. Shortly the case of the complainant was that he was the tenant of certain rooms of the ground floor and of the first floor of the premises concerned, No. 310 Chittaranjan Avenue. According to him there were on the first floor a bathroom and a privy which he as tenant used. He went away according to his evidence on the last Saraswati Puja day and on returning the next morning found that the door of the bathroom and the privy on the first floor had been padlocked. This he said restrained his movements and accordingly he made a complaint under Section 341, Penal Code. That section is in these terms:
'Whoever, wrongfully restrains any person, shall be punished with simple imprisonment for a term which may extend to one month, or with fine which may extend to five hundred rupees, or with both.' And wrongful restraint is defined in Section 339, Penal Code as:
'Whoever voluntarily obstructs any person so as to prevent that person from proceeding in any direction which that person has a right to proceed, is said wrongfully to restrain that person.'It is to be observed that there is an exception to Section 339 to the effect that'the obstruction of a private way over land or water which a person in good faith believes himself to have a lawful right to obstruct, is not an offence.'
4. It is quite clear that these sections are framed wide enough to coyer a case of this kind. But I imagine that the framers of the Penal Code envisaged a very different class of case where the freedom of movement of a person had been affected not by locking a door but by other means. However, if it could be shown that the complainant had been prevented from entering a privy and bathroom of which he was a tenant, there would technically be an offence under this section. However, it appears to me that a dispute of this kind could be tried far more suitably in the civil Court than in a criminal Court.
5. As many as thirteen witnesses were called to show that the complainant was entitled to use this privy and bathroom; but I think that all the witnesses but the complainant can be eliminated from consideration. As an example, Ponchu Gopal Chai, P. W. 7, a milkman who seems to deliver milk to the complainant gave evidence that the complainant used the privy and the bath on the first floor. How on earth would milkman know what privy the tenant of a house used. Other witnesses were guests and such like, and it would appear that if the evidence of these persons be accepted the complainant received his milk and apparently received most of his guests in the bathroom or the privy. Not one of these witnesses except one say that they used the bathroom or the privy themselves which they might have done if they were guests. I imagine that guests would have very little knowledge about the sanitary arrangements of a house unless they found it necessary to make use of such arrangements while they were guests. But nobody says that he had ever used the bath-room or the privy except Subodh Sen, P. W. 12, who says that he once used the bathroom himself.
6. This case must stand entirely upon the complainant's evidence as the other evidence is not worthy of consideration. The complainant in his examination-in-chief stated:
'I am a tenant under accused No. 1 in respect of the entire first-floor of premises No. 310 Chittaranjan Avenue. Accused 2 is her husband and accused 3 is their son. There is a privy and bath in the first-floor. I have been using this privy and bath in the first-floor since I went there as tenant. I have a dispensary on the ground floor and there is a latrine and water tap for use of my patients and compounders.'
7. That is all the evidence as to the nature of this tenancy and the accused in their written statement deny that this privy and bathroom were included in the tenancy.
8. There are features which would suggest that this bathroom and privy were not part of the tenancy. There are apparently two staircases leading up to the first and upper floors and the complainant who was a tenant of the first floor had the exclusive use of the western staircase. The privy and the bathroom concerned however opened off the eastern staircase. Further there was a privy on the ground floor and doubtless there could be arrangements for bathing as there was a water tap there. The privy and the bathroom therefore were not essential for the use of a tenant of the first-floor and the whole or part of the ground-floor.
9. Further, the case for the complainant is very odd. Why should the accused suddenly lock him out of his privy and bathroom? The suggestion made was that this was part of the harassing conduct of the accused to compel the complainant to pay more rent or vacate the premises.
10. Can a Court upon such evidence find with any certainty that this privy and bathroom formed part of the complainant's tenancy? It seems that there is considerable enmity in this case For example, the complainant's first supporting witness Gosaidas Ray, P. W. 2, was the brother-in law of accused 2 and he gives evidence supporting the complainant, he being a person who lived across the road from this house. This witness in cross examination denied enmity with accused 2. But quite obviously he would not have given evidence against his brother-in-law unless there was enmity and when there is enmity these cases have to be examined with the very greatest care.
11. On the evidence of the complainant standing by itself I do not think that it can be said that it was established beyond all reasonable doubt that this bathroom and privy were part of his tenancy. He might have been allowed to use it as it was on the first-floor in which he was tenant of certain rooms. But the user may have been as a licensee, in which case the right to use the privy and the bathroom could be terminated at any time.
12. In spite of what the Magistrate thinks I am still of opinion that this was pre-eminently a case to be decided by a civil Court and not a criminal Court, and in my view the evidence is not sufficiently convincing to sustain a conviction on a criminal charge.
13. That being so, I would allow this petition, set aside the convictions and sentences and acquit the accused. The Rule is made absolute.
14. I am now informed that a civil suit has been instituted by the complainant and this is undoubtedly the proper course for him to follow and the decision of the criminal case upon the evidence before the learned Magistrate cannot in any way affect a decision of the civil Court on the evidence tendered before that Court.