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Abdul Rashid and ors. Vs. Nausher Ali - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKolkata High Court
Decided On
Judge
Reported in1979CriLJ1158
AppellantAbdul Rashid and ors.
RespondentNausher Ali
Excerpt:
- .....of the witnesses recorded therein, that there were sufficient grounds for proceeding, the learned magistrate issued process against the 11 petitioners under sections 395/397 of the i.p.c. all the accused persons appeared before the learned magistrate and thereafter moved this court and obtained the present. rule for quashing the proceeding of the said case.2. mr. poddar, the learned advocate appearing for the petitioners contended that the materials on record do not make out a prima facie case under sections 395/ 397 of the i.p.c. and as such, the learned magistrate was not justified in issuing process against them under the aforesaid section. to appreciate the contention of mr. poddar it will be necessary to refer to the material allegations made in the complaint and the.....
Judgment:
ORDER

Monoj Kumar Mukherjee, J.

1. Upon a complaint filed by the opposite party, Sk. Nausher Ali, the learned Sub-divisional Judicial Magistrate, Arambagh took cognizance of the offence under Section 395 read with Section 397 of the I.P.C. and decided to hold an enquiry under Section 202 of the Cr. P.C. Accordingly he called upon the complainant to produce all his witnesses as enjoined by the proviso to Sub-section (2) thereof. On being satisfied from the statements of the witnesses recorded therein, that there were sufficient grounds for proceeding, the learned Magistrate issued process against the 11 petitioners under Sections 395/397 of the I.P.C. All the accused persons appeared before the learned Magistrate and thereafter moved this Court and obtained the present. Rule for quashing the proceeding of the said case.

2. Mr. Poddar, the learned Advocate appearing for the petitioners contended that the materials on record do not make out a prima facie case under Sections 395/ 397 of the I.P.C. and as such, the learned Magistrate was not justified in issuing process against them under the aforesaid section. To appreciate the contention of Mr. Poddar it will be necessary to refer to the material allegations made in the complaint and the depositions of the complainant and his witnesses in support thereof.

3. In his complaint the opposite party has stated that on June 5, 1978 the petitioners formed an unlawful assembly along with some unknown others and trespassed into the land of the complainant, armed with various weapons. They then started removing the til crops which were cultivated by the complainant. On getting this information the complainant went to the land and protested when the accused persons threatened him saying that in case he attempted to enter into the land in future, he will be done to death. His further allegation is that the accused persons were frequently giving out that they would set fire to the house of the complainant and do other mischief. In his initial deposition the complainant stated that when he protested, the accused persons abused him in filthy language and chased him with lathis. Some of his witnesses, deposed to the effect that when the complainant protested, the accused abused him and threatened to kill him. In the context of the allegations made by the complainant and the statements of the witnesses examined on his behalf, the question that falls for determination is whether the materials on record make out a prima facie case under Sections 395/397 of the I.P.C.

4. For transformation of an offence of theft to one under robbery it has to satisfy the requirement of Section 390 of the I.P.C. 'Theft' is 'robbery' under the said section if, in order to the committing of the theft, or in committing the theft, or in carrying away or attempting to carry away property obtained by the theft, the offender, for that end, voluntarily causes or attempts to cause to any person death or hurt, or wrongful restraint, or fear of instant death or of instant hurt, or of instant wrongful restraint. When 'robbery' is committed by five or more persons, it answers to the definition of 'dacoity' under Section 391 of the I.P.C.

5. The essence of the offence of robbery therefore is that the offender for the end of committing theft, or carrying away or attempting to carry away the looted property, voluntarily causes or attempts to cause to any person death or hurt or wrongful restraint or fear of instant death or of instant hurt or of instant wrongful restraint. The use of Violence will not, therefore, ipso facto convert the offence of theft into robbery unless the violence is committed for one of the ends specified in that section.

6. Judging the facts of the instant case in the light of Section 390 of I.P.C. I do not find any allegation whatsoever to show prima facie that the threat was meted out by the petitioners for any of the ends mentioned in the Section 390 of the I.P.C. In absence of any specific averment or allegation to that effect, I am of the view that the learned Magistrate was not justified in holding that a prima facie case under Sections 395/397 of the I.P.C. was made out on the materials on record.

7. In view of the foregoing discussion, the application succeeds and the Rule is made absolute. The proceeding of C. R. Case No. 340 of 1978 from the stage the learned Magistrate took cognizance is hereby quashed and the learned Magistrate is directed to proceed with the complaint in accordance with law.

8. Let the records be sent down early.


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