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Brojo Lakshmi Paul and anr. Vs. Sailendra Nath Banerjee and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKolkata High Court
Decided On
Case NumberCriminal Rev. No. 711 of 1958
Judge
Reported inAIR1959Cal260,1959CriLJ446
ActsConstitution of India - Article 20(2); ;West Bengal Premises Tenancy Act, 1956 - Section 31; ;Indian Penal Code (IPC), 1860 - Sections 425 and 426
AppellantBrojo Lakshmi Paul and anr.
RespondentSailendra Nath Banerjee and anr.
Appellant AdvocateNoni Coomar Chakravorti, Adv.
Respondent AdvocateNikhil Chandra Talukder and ;Ramendra Nath Ghosh, Advs.
Cases ReferredPulin Krishna v. Sishupati Chakravorty
Excerpt:
- .....before the presidency magistrate, 3rd court, calcutta on charge under section 426 of the indian penal code and were convicted of that charge and sentenced to pay a fine of rs. 50/- each in default to rigorous imprisonment for one month. out of the fine, if realised, a sum of rs 50/- was directed to be paid to the complainant--opposite party as compensation. it is against this order of conviction and sentence passed on the petitioners that the present rule is directed.2. the prosecution case against the petitioners is that on 1-12-1957 the electric connection of the said shop room of the complainant had been cut off. it is alleged that this was done due to the refusal of the opposite parties to pay an enhanced rent for electrical charges, demanded by the petitioners. it was further.....
Judgment:
ORDER

N.K. Sen, J.

1. The petitioner Brojolakshmi Paul is the wife of the other petitioner--Madan Mohan Paul and the opposite party Sailendra Nath Banerjee is a monthly tenant under Petitioner No. 1 Brojo Lakshmi in respect of a shop room at 59/2, Baitakkhana Road, Calcutta at a monthly rental of Rs. 15/5/- plus Rs. 2/- as electric charges for one light. The petitioners were tried before the Presidency Magistrate, 3rd Court, Calcutta on charge under Section 426 of the Indian Penal Code and were convicted of that charge and sentenced to pay a fine of Rs. 50/- each in default to rigorous imprisonment for one month. Out of the fine, if realised, a sum of Rs 50/- was directed to be paid to the complainant--opposite party as compensation. It is against this order of conviction and sentence passed on the petitioners that the present Rule is directed.

2. The prosecution case against the petitioners is that on 1-12-1957 the electric connection of the said shop room of the complainant had been cut off. It is alleged that this was done due to the refusal of the opposite parties to pay an enhanced rent for electrical charges, demanded by the petitioners. It was further alleged that the petitioner No. 2 cut off the electric line with a pair of scissors, while the petitioner No. 1, who is his wife was standing by.

3. The defence taken was that the cutting oft of the electric connection did not amount to mischief within the definition of Section 425 of the Indian Penal Code. A further defence was taken that the prosecution was not maintainable inasmuch as the proceeding under Section 31 of the West Bengal Premises Tenancy Act (West Bengal Act XII of 1956) had been filed before the Rent Controller, Calcutta against the opposite party No. 1 for imposition of the maximum amount of fine presumably under that section.

4. Mr. Noni Coomar Chakravarti, appearing in support of the Rule, argues that the present prosecution is an abuse of the process of court inasmuch as simultaneously with the present prosecution a proceeding before the Rent Controller for imposing a penalty upon petitioner No. 1 was pending. It was then argued by Mr. Chakravorty that inasmuch as a special Act provides for the trial and prosecution for this particular offence, it was not legally permissible to prosecute the offender on the same allegations under the general law. The third point that was taken was that the prosecution of the petitioner in two cases in respect of identical allegations offends Article 20 of the Constitution of India and finally it was argued that in any event the prosecution allegations did not amount to a mischief within the meaning of the Indian: Penal Code.

5. It is true that cutting off of electric connection amounts to wilfully disturbing an easement annexed to the premises and also amounts to interference with the supply or service comprised in the tenancy and as such is punishable under Section 31 of the West Bengal Premises Tenancy Act, 1956 (Act XII of 1956). I am not, however, prepared to say that an offence contemplated under Section 425 of the Indian Penal Code is identical with the offence that is made punishable under Section 31 of the West Bengal Premises Tenancy Act, 1956 and certainly at least, petitioner No. 2 Madan Mohan Paul is not being prosecuted under the provisions of that section. Mr. Chakravorti has cited before me two cases in support of his contention that the prosecution allegations in the present case do not amount to mischief within the meaning of the Indian Penal Code. The first case cited by Mr. Chakravorti is the case of Ramdas Pandey v. Nagendra Nath : AIR1948Cal197 , where it was held that 'the change contemplated by Section 425 is some physical change in the property. Where the landlord agrees to pump water from the central reservoir to the flats of his tenants for some charge, omission on the part of the pumpman or the land, lord to pump water on certain days does not amount to 'mischief within Section 425 of the Indian Penal Code.'

6. What happened in that case was that the landlord had agreed with the tenants of his flats to pump water from a reservoir in which filtered water supplied by the Corporation was collected, and for that purpose a separate charge was imposed and paid by the tenants. One of the tenants alleged that on certain dates in the month of June, 1946, the water was not pumped as per agreement and on his making enquiries the pumpman informed him that the landlord has stopped the water supply, in other words had cancelled the order for pumping water into the flats. Sharpe J. was of the view that this omission to supply water could not be said to constitute any such change in any property or in the situation thereof as destroys or diminishes its value or utility or affects it injuriously. It is to be observed that it was contended in that case that there was no interference with the taking of water from the central reservoir, but the only allegation was that on certain dates there was omission to pump water from the reservoir into the flats.

7. The next case cited is a decision of the Sind Judicial Commissioner's Court in the case of Abdul Rahman v. The Emperor, 28 Cri LJ 960: (AIR 1928 Sind 49) (1)). In the case the learned Judges--Percival and Aston said that they had an interesting discussion before them regarding the definition of 'mischief and on the question whether the facts of the case before them involve the offence of mischief and the learned Judges held that mere omission to give light to a house by failing to switch on the light did not constitute an offence of mischief under Section 426 of the Indian Penal Code. The learned Judges came to this conclusion because of the fact that they held that the 'change' referred to in Section 426 of the Indian Penal Code meant physical change in composition or form and in the facts of the case before the learned Judges they came to the conclusion that a mere omission to give light to the house by failing to switch on the light would not constitute an offence of mischief. The learned Judges, however, observed that there did not appear to be an exact precedent on the point.

8. In my judgment, the cutting off the electric connection, which was done in the present case was with the intention of causing wrongful loss to the opposite parties and the same has resulted in causing such destruction of the property or such change in the property or diminution in its value or utility so as to clearly come within the definition of Section 425 of the Indian Penal Code. So far as the evidence goes there is no doubt that the petitioner No. 2 Madan Mohan Paul had, in fact, cut off the electric connection with a pair of scissors in presence of petitioner No. 1 and this was witnessed by prosecution witness No. 2 Pran Ballav Paul, who deposed as follows:

'In my presence the accused No. 2 Madan Mohan Paul cut the electric connection of P. W. 1's shop. The accused was present then. At the time he cut the electric connection he brought out a pair of scissors from his pocket and cut the electric connection with the same.' ....

9. The learned Magistrate has accepted this evidence and I do not see any reason for not accepting the same. The conviction of the petitioner under Section 426 of the Indian Penal Code was, therefore, perfectly justified and the sentence passed on them as also the order of the compensation must be maintained.

10. So far as the other point taken by Mr. Chakravorty is concerned it appears that the petitioner No. 1 was the only person that is being proceeded against in the Court of the Rent Controller, Calcutta.

11. Mr. Nikhil Chandra Talukdar, appearing on behalf of the opposite parties has contended on the authority of the decision in Emperor v. Joti Prasad Gupta, reported in : AIR1932All18 that

'where an act is punishable under a special law and also under a general statute, the offender could be proceeded with under either or both but could not be punished twice for the same act or omission which constituted the offence. Where there is nothing in the special act to exclude the operation of the general criminal law, it cannot be inferred that there was an intention on the part of the legislature to exclude it.'. Where an act or omission constitutes an offence under two or more enactments then the offender shall be liable to be punished under either of these enactments, but he shall be liable to be punished twice for the same offence. Mr. Talukdar has pointed out that in the present case, the case before the Rent Controller viz. Case No. 771A of 1957 M. E. S. has not yet been taken up for hearing and as there could be no prosecution under two or more enactments, the petitioner No. 1 could not make any grievance until the trial came to an end and she was punished under the provisions of Section 31 of the West Bengal Premises Tenancy Act, 1956 (Act XII of 1956). Mr. Talukder has therefore contended that the Petitioners can have no grievance. Mr. Talukdar has also cited the case of Jhabermal Dudhwalla v. Govindram, decided by Das Gupta and P. N. Mookerjee JJ., : AIR1952Cal121 , where their Lordships held that the fact that certain proceedings under Section 34 of the W.B. Premises Rent Control (Temp. Provs. Act, 1950) were taken before the Rent Controller and had been concluded could not stand in the way of the proceeding started under Section 41 in the criminal Court. He also cited a Supreme Court decision in the case of Maqbool Hossain v. The State of Bombay, : 1983ECR1598D(SC) where their Lordships of the Supreme Court held 'that Article 20(2) of the Constitution incorporates within its scope the plea of 'autrefois convict' as known to the British jurisprudence or the plea of double jeopardy as known to the American Constitution but circumscribes it by providing that there should be not only a prosecution but also a punishment in the first instance in order to operate as a bar to the second prosecution and punishment for the same offence.'

12. Mr. Chakravorti has, on the other hand, cited the case of Pulin Krishna v. Sishupati Chakravorty : AIR1953Cal85 where Harries C.J. sitting with Sarkar J. held that Article 20(2) of the Constitution of India was a bar to the prosecution and punishment in a Criminal Court where the Statute gave the Rent Controller power to impose penalty, that is, fine a person and gave him right to deal with the prosecution of an offence and to punish him for the commission of such offence.

13. Harries C.T. was of the view that going to the Rent Controller and asking him to fine a man for an act was really a prosecution of that man and the act was an offence against the statute and was a criminal offence because it was punishable by a fine which was a punishment of a criminal nature. It would be observed that in that case there was a proceeding under Section 34 of the West Bengal Premises Rent Control (Temporary Provisions Act), 1950 and the landlord was fined by the Rent Controller for his illegal action of not allowing the tenant to use the privy and water tap. Subsequently, the landlord was prosecuted in a criminal court under Section 41 of the Act, on the same facts and was convicted.

14. Mr. Talukdar has pointed out that in the application under Section 31 of the West Bengal Premises Tenancy Act, 1956 the allegations against the petitioner No. 1, that is the landlady was not only with regard to the cutting off of the electric wires but also with regard to certain other matters.

15. Having considered all the facts and circumstances of the case I have no doubt left in my mind that although there is proper and adequate remedy available to the opposite party under Section 31 of the West Bengal Premises Rent Control Act, it could not be said that the petitioner No. 1 should not have been prosecuted under the general law before the Presidency Magistrate. This prosecution before the Magistrate can, in no circumstance, be said to be art abuse of the process of the Court. The prayer of the Petitioners that the case before the Rent Controller, viz., case No. 771A of 1957 M. E. S., might be set aside or quashed cannot be entertained and the case should proceed to its finish. It will be for the petitioner No. 1 if so advised to point out before the learned Rent Controller, Calcutta, if she is punished that there had been a punishment awarded to her on a conviction under Section 426 of the Indian Penal Code on the same facts and it will be for the learned Magistrate to deal with the matter according to law.

16. All the contentions raised by Mr. Chakravorty on behalf of the petitioners, therefore, fail and the relative Rule is discharged.


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