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Byomkesh Bhattacharya and ors. Vs. Lakshmi Narayan Datta - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKolkata High Court
Decided On
Judge
Reported in1978CriLJ848
AppellantByomkesh Bhattacharya and ors.
RespondentLakshmi Narayan Datta
Cases ReferredState of Karnataka v. L. Muniswamy
Excerpt:
- .....against them before a judicial magistrate, sealdah under sections 426 and 430/34 of the indian penal code.2. on may 20. 1975 lakshmi narayan dutta, the complainant-opposite party filed a petition of complaint in the court of the senior judicial magistrate at sealdah against the petitioners praying for process against them under sections 426/430/ 341/34 of the indian penal code. in the petition of complaint it is alleged by the complainant that he is a leasehold tenant in respect of a first floor flat of the premises no. 28/a, sarat ghosh street within the police station of entally. the accused no. 1 byomkesh bhattacharjee is a monthly tenant in respect of the second floor of the premises in question, accused no. 2 sm. manisa bhattacharjee is his wife, accused, no. 3 sandip.....
Judgment:

Monoj Kumar Muhkherjee, J.

1. In this revisional application six accused persons pray for quashing of the proceeding of case No. C/348/75 (T. Rule 239/75) pending against them before a Judicial Magistrate, Sealdah Under Sections 426 and 430/34 of the Indian Penal Code.

2. On May 20. 1975 Lakshmi Narayan Dutta, the complainant-opposite party filed a petition of complaint in the Court of the Senior Judicial Magistrate at Sealdah against the petitioners praying for process against them Under Sections 426/430/ 341/34 of the Indian Penal Code. In the petition of complaint it is alleged by the complainant that he is a leasehold tenant in respect of a first floor flat of the premises No. 28/A, Sarat Ghosh Street within the Police Station of Entally. The accused No. 1 Byomkesh Bhattacharjee is a monthly tenant in respect of the second floor of the premises in question, accused No. 2 Sm. Manisa Bhattacharjee is his wife, accused, No. 3 Sandip Bhattacharjee is his nephew and accused No. 4 Sujit Kumar Ghosh is his domestic servant; Of the other two accused, accused No. 5 Kanailal Sen is a tenant in respect of ground floor of the premises while Sm. Rekha Sen, accused No. 6, is his wife. There is long standing dispute and difference between the complainant and the accused and a case at the instance of the complainant is pending in the Court of another Judicial Magistrate at Sealdah. The accused persons stopped supply of filtered water, required for drinking and bathing purposes, to the complainant's flat since the morning of January 5, 1973 through operation of a wrench valve key. The complainant further alleged that since March 17. 1973 the accused Nos. 1-4, by damaging and dismantling the overhead roof of the first floor, have been deliberately and purposely throwing refuses and foul water every now and then and thereby spoiling the cooked food of the complainant.

3. The learned Magistrate examined the complainant on solemn affirmation and one witness present on his behalf But as the general diaries lodged by the complainant with the police were not produced before the learned Magistrate, the learned Magistrate directed the complainant to produce the said diaries. On 21-5-75 the learned Magistrate perused the different general diaries lodged by the complainant after calling for the records of case No. 109 of 1974 which was pending between the parties in the Court of a Judicial Magistrate, Sealdah, and in which the diaries were filed and on consideration of the materials on record he issued process against the six accused persons to stand their trial Under Section 426 and Section 430 read with Section 34 of the Indian Penal Code. In obedience to the summons all the accused persons entered appearance before the learned Magistrate on 9-8-75 and thereafter the case was transferred to the file of the Judicial Magistrate, Second Court, Sealdah for disposal. Before the transferee Court the accused persons filed an application on 13-8-75 praying for their discharge Under Section 245(2) of the Code of Criminal Procedure, 1973. After hearing the parties, the learned Magistrate by his order dated 28-11-75 rejected the said application and fixed a date for evidence of the prosecution witnesses. The accused persons in the meantime moved this Court and obtained the present Rule.

4. Mr. Balai Chandra Roy, the learned Advocate appearing for the petitioner contended that so far as the offence Under Section 426 of the Indian Penal Code is concerned, the learned Magistrate erred in taking cognizance as the same was barred by limitation. Mr. Roy submitted that the maximum punishment for the offence Under Section 426 of the Indian Penal Code beting imprisonment for 3 months, the learned Magistrate could not have taken cognizance in respect of the said offence in view of the provisions of Section 468 of the Code of Criminal Procedure, 1973 (here in after referred to as the new Act) a? the period of limitation for such offence was one year only. Since the offence of mischief for which some of the petitioners are being proceeded with Under Section 426 of the Indian Penal Code was, according to the complainant committed on March 17, 1973, the learned Magistrate, according to Mr. Hoy, could not have taken cognizance of the offence on 20-5-75, the date on which the complaint was filed. Mr. Dilip Kumar Dutt, the learned Advocate appearing for the complainant opposite party did not contest the legal position in this respect, but contended that inasmuch as the offence of mischief Under Section 426 of the Indian penal Code alleged against some of the petitioners was a continuing offence, the limitation was to run every moment of time during which the offence continued and since it Is the positive case of the complainant that the mischief committed by the petitioners in continuing, a fresh period of limitation shall begin to run at every moment of stitih continuance of the offence. Mr. D. M. Ghosh, the learned Advocate appearing for the State, however, supported the contention of Mr. Roy and submitted that the learned Magistrate erred in taking cognizance of the offence Under Section 426 of the Indian Penal Code as it was barred by limitation.

5. For the purpose of properly appreciating the respective contentions of the parties it would be profitable to refer to the specific allegations made in the complaint in respect of the offence Under Section 426 of the Indian Penal Code which read as follows;

Over and above, it be noted that the accused Nos. 1 to 4 since March 17, 1973 by damaging and dismantling the overhead roof of the first floor have been deliberately and purposely throwing dirty sweepings, refuses and foul waters every now and then by spoiling the cooked food of the complainant in order that the complainant might feel impelled otherwise to leave the premises in question.

6. In my view, every act of the accused of spoiling the cooked food of the complainant by throwing dirty sweepings, refuse and foul water is a separate and complete offence of mischief and not a continuing offence and for each such act the accused can be prosecuted separately. In absence of any averment in the petition of complaint that any act of such mischief was committed within a period of one year prior to the date of filing of the complaint, the learned Magistrate was not legally entitled to take cognizance of the offence Under Section 426 of the Indian Penal Code without condoning the delay on appropriate materials Under Section 473 of the new Code. The proceeding in respect of this offence therefore is liable to be quashed.

7. As regards the offence Under Section 430/34 of the Indian Penal Code, Mr. Roy firstly contended that the allegation made in the petition of complaint does not bring It within the mischief of Section 430 of the Indian Penal Code. Mr. Roy submitted that the only allegation that has been made in the petition of complaint for an offence Under Section 430 of the Indian Penal Code is that the accused persona through operation of wrench valve key stopped supply of water by turning the main pipe outside the storage reservoir. According to Mr. Roy the above allegation even if it is taken on Its face value does not constitute 'mischief' within the meaning of Section 425 of the Indian Penal Code as there was neither any destruction of the property nor any change in the property or in the situation there as to destroy its value or utility. The property in the instant case being the pipe line, there has been no change in the property inasmuch as it is not the allegation, of the complainant that there has been a change in the composition and term of the pipe itself so as to destroy or diminish its value or utility as a pipe. Mr. Roy further contended that to bring it within the meaning of 'mischief' Under Section 425 of the Indian Penal Code, there must be a physical change in the property which diminishes its value or utility. The pipe did not change its character as a pipe and its value or utility as a pipe has not been diminished or destroyed since it can be used for the self-same purpose for which it was being used at some other places. Both Mr. Dutta and Mr. Ghosh contended on the other hand that the very fact that the supply of water through the pipe line was stopped, it amounted to a change in the property so as to attract the definition of 'mischief' Under Section 425 of the Indian Penal Code,

8. In my considered judgment the expression 'change in the property so as to destroy or diminish its value or utility4 does not necessarily mean a change in character, composition or form. If something is done to the property contrary to its natural use and serviceable-ness that destroys or diminishes its value or utility, it will amount to 'mischief'. It is not necessary for the purpose of Section 425 of the Indian Penal Code that there must be a material change in the property itself, nor does the said section require that value or 'utility of the property means its market value or utility. position may be clarified by an example. If a miscreant loosens the nuts and bolts fixing the tyres of a motor car thereby making it impossible for the owner to drive the vehicle, he cannot certainly in an indictment for 'mischief' be allowed to say that by his act he did not change the nuts and bolts so as to destroy or dimiaaish their value or utility because their market value or utility rnains the same and they can be used in the self-same motor car by tighten them up again. As I have already indicated, in the instant case the allegations are stoppage, of water through a pipe by operation of a key. If the water supplied is stopped by a positive act in 'the shape of turning the main pipe through operation of a wrench valve key, that would amount to bringing about some change in the property (here the pipeline) which diminishes its value or utility for the purpose for which it was being used, namely, supply of water to the flat of the complainant and such act would be mischief within the meaning of Section 425 of the Indian Penal Code if the other ingredients of the section are present. The stoppage of water supply to the flat of the complainant in the manner in which it was done in this case was something contrary to the natural use and serviceableness of the water pipe for the purpose it was being used and obviously such act diminishes or destroys the value or utility of the same. This contention of Mr. Roy therefore fails.

9. Mr. Roy next contended that the learned Magistrate should not have issued process against the petitioners as the materials on the basis of which the learned Magistrate issued process against the petitioners were not sufficient to make out a prima facie case against them. Mr. Roy submitted that issue of process in the instant case was an abuse of the process of the Court and this Court in exercise of its inherent powers under Section, 482 of the new Code is entitled to quash the same. Both Mr. Dutta and Mr. Ghosh in reply to the contention of Mr. Roy contended that at the time of issuing of the process the learned Magistrate was to consider whether a prima facie case was made against the accused persons and there being sufficient materials1 on record to justify issuance of process, the proceeding of the instant case should be allowed to continue.

10. The materials on which the learned Magistrate issued the process against the accused petitioners Under Sections 426 430/34 of the Indian Penal Code are the petition of complaint, the deposition of the complainant and of his wife and certain general diaries lodged by the complainant with the police on diverse dates. As regards the evidence Under Section 430 of the Indian Penal Code, the allegation in the petition of complaint Is as follows:

The accused persons in furtherance at their common intention with a view to saddling the complainant and his family with unspeakable troubles and distress, besides incredibly disturbing their lawful existence in the premises in question by turning the main pipe outside the storage reservoir on the ground floor through operation of the wrench valve key, which they have in their full control have totally caused stoppage of supply of filtered water for drinking and bathing purposes in the complainant's flat since the morning of 5th January, 1973.

11. In his initial deposition the complainant stated. ''Since 5th January. 1973 the supply of water was totally stopped by operation of wrench valve. 1' The wife of the complainant, Sm. Chameli Dutta in her deposition at the time of lodging the complaint stated, 'since 5-1-73 the accused persons stopped the flow of water through pump. The pump used to be operated by them. They stopped the flow of water by wrench valve.' The general diaries lodged by the complainant are however not on record. The absence of those general diaries are not of much consequence as from the date of lodging of those diaries appearing in the order-sheet of the learned Magistrate I do not find that any diary was lodged immediately after the date of alleged stopping of water.

12. It would thus appear from the materials on record that except a bald statement in the petition of complaint that the accused persons in furtherance of their common intention caused the mischief and the general allegation in the depositions of the complainant and his wife that the accused persons stopped the water supply, there is no other material for issuing the process against the accused Under Section 430/34 of the Indian Penal Code. It has to be borne in mind that this petition of complaint was filed after a lapse of 2 years and 4 months from the date of the alleged incident. Surprisingly however even in this belated complaint no specific allegation has been made against any of the accused persons. On the contrary, the accused persons are sought to be made liable for operation of a wrench valve key by the aid of Section 34 of the Indian Penal Code.

13. It is trite law that Section 34 of the Indian Penal Code is only a rule of evidence and does not create a substantive offence. It means that if two or more persons intentionally do a thing jointly, it is just the same as if each of them has done it individually. I fail to appreciate how an operation of a wrench valve key could have required active participation of six persons so as to make all of them liable for the offence Under Section 430 read with Section 34 of the Indian Penal Code. Mr. Dutta sought to contend that the actual role played by each of the accused will be a matter of evidence and at the time of issuance of process such details were not necessary. I am however, unable to accept the contention of Mr. Dutta.

14. Section 482 of the new Code entitles this Court to exercise its inherent power to prevent abuse of the process of any Court or otherwise to secure the ends of justice. The scope of Section 482 of the Code of Criminal Procedure and extent of power thereunder came up for consideration before the Supreme Court in a number of cases and recently in the case of State of Karnataka v. L. Muniswamy reported in : 1977CriLJ1125 , Chandrachud, J. speaking for the Court observed:

In the exercise of this wholesome power, the High Court is entitled to quash a proceeding if it comes to the conclusion that allowing the proceeding to continue would be an abuse of the process of the Court or that the ends of justice require that the proceeding ought to be quashed. The saving of the High Court's inherent powers, both in civil and criminal matters is designed to achieve a salutary public purpose which is that a court proceeding ought not to be permitted to degenerate into a weapon of harassment or persecution. In a criminal case, the veiled object behind a lame prosecution, the very nature of the material on which the structure of the prosecution rests and the like would justify the High Court in quashing the proceeding in the interest of justice. The ends of justice are higher than the ends of mere law though justice has got to be administered according to laws made by the legislature. The compelling necessity for making these observations is that without a proper realisation of the object and purpose of the provision which seeks to save the inherent powers of the High Court to do justice between the State and its subjects it would be impossible to appreciate the width and contours of that salient jurisdiction.

Then again in the same judgment His Lordship further held:

Considerations justifying the exercise of inherent powers for securing the ends of justice naturally vary from case to case and a jurisdiction as wholesome as the one conferred by Section 482 ought not to be encased within the strait-jacket of a rigid formula.

15. In the instant case, as I have already pointed out except a general allegation there is no other material against the accused persons. Then again the complaint was filed after more than two years from the date of the alleged incident. It is of course true that the complainant has given an explanation for this unusual delay and it will not be proper for me at this stage to decide whether such explanation of delay is reasonable or not. But the uncontroverted fact is, that even after such a long period no specific allegation has been made against the individual accused. On the contrary six accused persons including two ladies are being made accused for operation of a valve key, which operation could be done by a pair of hands only, and I cannot think of any conceivable way of participation of six accused persons in such an operation. Normally this Court is reluctant to interfere with the ordinary course of law and substitute its own judgment on the judgment of the Magistrate which has found prima facie case against the accused. But as I am satisfied that no prima facie case has been made out specifically against any of the accused and continuance of the proceeding of the instant case would amount to unnecessary harassment of the accused petitioners, I think it is the duty of this Court to interfere Under Section 482 of the Code of Criminal Procedure to put an end to this abuse directing the quashing of the prosecution in respect of the offence Under Section 430 of the Indian Penal Code, and I direct accordingly,

16. In the result, the Rule is made absolute and the entire proceeding of case No. C/348 of 1975 pending against the petitioners in the court of the Judicial Magistrate, Sealdah is hereby quashed. The accused petitioners who are on bail are discharged from their respective bail bonds.


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