Rishi Ram Mitra vs Prahlad Chandra Das

N.C. Talukdar, J.—This Rule is at the instance of the three accused Petitioners for quashing proceedings u/s 427 of the Indian Penal Code pending in the Court of Sri G. M. Ganguly, Magistrate, First Class, Alipore, District 24-Parganas, in case No. C. 238 of 1969.

The facts leading on to the Rule are short and simple. The complainant Prahlad Chandra Das, who is the opposite party in the present Rule, is a tenant in respect of a shop room at premises No. 5A Fern Road, Calcutta, under the accused Rishi Ram Mitra alias R. R. Mitra and Sm. Anima Mitra, at the rate of Rs. 10 per month and carries on the business of a tailoring shop named and styled as Dress Museum. The accused-Petitioner No. 3 Kulbir Singh is the durwan of the landlords. A petition of complaint was filed by the complainant-opposite party on February 5,1960, before Sri G. M. Gunguly, Magistrate First Class, Alipore, 24-Parganas, under Sections 379/427, Indian Penal Code, against the three accused-Petitioners and others who are stated to be the diirwam of the landlord alleging, inter alia, that the landlords refused to receive the rent compelling thereby the complainant to deposit the same with the Rent Controller. It was further alleged that the electric meter box of the complainant''s shop was installed in premises No. 5E Tern Road, Calcutta, along with the meters of some other tenants. On January 31, 1969, at about 5-30 p.m. on the date of the incident, the accused No. 3, Kulbir Singh, as also other durwans under the orders of the owners of the premises, namely Rishi Ram Mitra and Sm. Anima Mitra, cut the electric connection of the complainant''s shop by removing the electric wirings and the meter kid guard committing thereby mischief lo the extent of Rs. 300 in addition to the daily Loss suffered by the complainant because of the absence of any electric connection. Protest made to the landlord was in vain. A diary was lodged and ultimately the petition of complaint was hide. The complainant in his examination on solemn affirmation before the learned Magistrate reiterated that on January 31, 1969, at about 5-30 p.m. the accused Kulbir Singh under orders of the accused Nos. 1 and 2, namely the two owners of the premises, disconnected electric connection and removed the outside wirings from the meter board the value whereof would be Rs. 300 and that the protests made by the complainants employee were thrown to the winds. The learned Magistrate examined the complainant and by his order dated February 5, 1969, summoned the accused persons u/s 427, Indian Penal Code, only. The accused persons appeared thereafter and were released on bail arid the accused No. 2 Sm. Anima Mitra was also granted personal exemption u/s 205, Code of Criminal Procedure. The proceedings pending in the Court below were impugned and the present Rule was issued.

Mr. Dinesh Chandra Roy, Advocate (with Mr. Nilmani Goswami, Advocate) appearing in support of the Rule on behalf of the three accused-Petitioners, has made a three-fold submission. Mr. Roy contended in the first place that a continuance of the present proceedings u/s 427, Indian Penal Code, which is a general Act, is bad and repugnant because on the same set of facts a prosecution is maintainable u/s 31 of the West Bengal Premises Tenancy Act, 1956, which is a special Act. In this context Mr. Roy referred to the observations of Maxwell on Interpretation of Statutes (11th ed.) as to the maintainability of a prosecution under the general Act when there is specific provision therefore in the special Act. The second contention of Mr. Roy relates to the merits of the case, and in this context he submitted that the prosecution case taken at its highest, as incorporated in the petition of the complainant as also in the statement on solemn affirmation, falls short of the essential ingredients of mischief as defined in Section 425 of the Indian Penal Code enjoining that there must not only be the intention to cause or the knowledge of loss or damage to the public or to any person in destroying the property in question or causing such change in the property or in the situation thereof as destroying or diminishing its value or utility or affect it injuriously would amount to mischief. Mr. Roy submitted that the allegations made by.the prosecution taken at their highest did neither cause any destruction to the property nor any such change in the same as would destroy or diminish its value or utility. The sine qua non of a prosecution u/s 427, Indian Penal Code, was therefore non est. The third and the last submission of Mr. Roy is that in any event there is no case against the ''accused-Petitioners Nos. 1 and 2, viz. Rishi Ram Mitra and Sm. Anima Mitra and a continuance of the proceedings against them would be merely an abuse of the process of the Court. Mr. Krishnadas Jaiswal, Advocate appearing on behalf of the complainant-opposite party, joined issue. Mr. Jaiswal submitted in the first instance that the first contention raised on behalf of the accused-Petitioner by Mr. Roy is more technical than real inasmuch as the cloud raised on the said point has been removed and the point has been decided finally in a series of decisions of this Court and also of the Supreme Court. There is no bar in limine accordingly to a prosecution under the general Act merely because on the same set of facts a prosecution u/s 31 of the West Bengal Premises Tenancy Act, 1956, which is a special Act, also did lie. Mr. Jaiswal contended in the second place that it was rather premature at this stage to pray for quashing the proceedings on the ground of merit, in view of the material allegations made in the petition of complaint in general and in para. 5 thereof in particular along with the statements made on solemn affirmation by the complainant. Mr. Jaiswal further submitted in this context that the quashing was an extra-ordinary remedy and, if the prosecution be allowed to be quashed at this stage, the complainant would be denied his rig-lit to establish his grievances in the Court of law. As to the third contention of Mr. Roy, Mr. Jaiswal''s rejoinder is that it is too early to hold that there is no case against the accused-Petitioners Nos. 1 and 2 in view of the averments made in the petition of complaint as also on solemn affirmation that the durwan merely carried out the orders of the owners. Whether the said allegations are correct or not would be proved by a trial on evidence. Mr. Mukul Gopal Mukherjee,. Advocate appearing on behalf of the State, opposed the Rule. Apart from the submissions of law made by Mr. Jaiswal, which he adopted, Mr. Mukherjee further submitted that on the question of merits the proceedings could not at this stage be quashed. The allegations made in the petition of complaint as also in the statements on solemn affirmation should be the basis for proceeding unless and until there is any evidence of rebuttal and the question of quashing at this early stage does not arise. It will merely prejudice the complainant and tinker with the continuance of the present proceedings. Besides the arguments referred to above, an affidavit-in-opposition as also an affidavit-in-reply were filed and used by the Petitioner as also the complainant-opposite party.

Having heard the learned Advocates appearing on behalf of the respective parties and on going through the materials on record, 1 hold that the first contention raised by Mr. Roy is ultimately unwarranted and untenable. As a proposition of law simplicitor the contention made by him that when on the same set of facts a proceeding can be instituted both under the general Act as also under the special Act, such a proceeding will not be maintainable under the general Act to the exclusion of the special Act is not tenable. Mr. Roy depended on the observations made by Maxwell on Interpretation o[ Statutes (11th ed.) in this context. I have given my anxious consideration to the point raised by Mr. Roy and I find that Maxwell in his Interpretation of Statutes (11th ed., p. 176) did not really observe what was submitted by Mr. Roy. Maxwell merely pin-pointed therein that when a general Act was incorporated into a special one, the provisions of the latter would prevail over any one of the former with which they were inconsistent and in that context referred to the case of the Attorney-General v. G.G. Railway L.R. 6 H.L. 367. The facts here are quite distinguishable. The point at issue here is not of inconsitenancy but whether parallel proceedings under the general Act as also under the special Act on the same set of facts can be allowed to go on. Therefore, it is abundantly clear that the observations made by Maxwell in his Interpretation of Statutes (p. 176) run off at a tangent from the point required for consideration here. The point can also be approached from another standpoint. It is pertinent to refer to Section 26 of the General Clauses Act which runs as follows:

Where an act or omission constitutes an offence under two or more enactments, then the offender shall be liable to be prosecuted and punished under either or any of those enactments but shall not be liable to be punished twice for the same offence.

It would appear, therefore, that subject to the overall consideration that the offender shall not be liable to be punished twice for the same offence, if an act or omission constitutes an offence under two or more enactments, the offender can be prosecuted and punished under either or any of those enactments. In this context, a reference may be made to an unreported decision by the Division Bench of this Court in Nagendra Chandra Ghosh v. The State (Unreported) Criminal Rev. No. 1569 of 1960, decided on September 11, 1961, by S.K. Sen and N. K. Sen JJ. The case was against the backdrop of Section 427, Indian Penal Code, vis-a-vis the Employees'' State Insurance Act, 1948. Their Lordship; after considering the material provisions of Section 26 of the General Clauses Act held ultimately. in the facts of that case that the prosecution u/s 420,. Indian Penal Code, would not be bad even if the offence with which the accused was charged did come within the scope of Section 84 of the the Employees'' State Insurance Act, 1948. I respectfully agree with the said observation of, the Division Bench and hold that there is no bar in limine to such a prosecution under the general Act merely because on the same set of facts a case could also go on under the special Act. The objection taken, in this behalf by Mr. Roy, therefore, is not maintainable.

Further light on the point has been thrown by two recent decisions of their Lordships of the Supreme'' Court; In the case of Basir-ul-huq and Others Vs. The State of West Bengal, . Mahajan J. (as his Lordship then was) observed'' in the facts of that case that Section 195 could not be evaded by the device of charging a person with an offence to which that section did hot apply and then convicting him of an offence to which it did on the ground that the latter offence was a minor one of the same character or by describing the offence as one punishable under some other section of the Indian Penal Code. The Supreme Court, however, in a later case made material observations, and it is pertinent in this context to refer to the same for a proper disposal of the point at issue. A reference may, therefore, be made to the case of Ghandrika Sao and Hazari Lai v. State of Bihar AIR 1967 S.C. 170 wherein Mudholkar J. delivering the judgment observed that in choosing to prosecute the accused for a graver offence under the general law the prosecution could hot be regarded as having acted colourably. It was further observed that if the prosecution were to be so restricted graver offences would go unpunished. Respectfully agreeing with the aforesaid observations and applying the said yardstick to the facts of the present case, I find that the penalty enjoined u/s 427, Indian Penal Code, is a graver one, graver than that provided for u/s 31 of the West Bengal Premises Tenancy Act, 1956. Under Article 141 of the Constitution of India the decision of the Supreme Court is binding on me and I accordingly hold that the first contention of Mr. Roy is not maintainable, and it therefore fails."

As to the second branch of Mr. Roy''s submissions on merits I must hold that it is difficult for me to come to an omnibus finding at this stage that there is no case at all to go on so far as all the accused are concerned. Mr. Roy has referred to a number of decisions in support of his contention that mere removal of some electric wirings does not constitute mischief within the ambit of Section 425, Indian Penal Code, therefore not attracting the penalty enjoined u/s 427 of the said Code. In this context, Mr. Roy underlines the expression causing the destruction of the property in question or any such change in the said property or in its situation as destroying or diminishing its value or utility and submitted that the removal of the wirings did not in any way destroy or diminish the value as alleged or at all. Therefore, ex facie there is no offence u/s 427, Indian Penal Code, and a continuance of the present proceedings against the three accused persons would be an abuse of the process of the Court. Mr. Jaiswal urged that it was premature to argue the same because as yet no evidence had been adduced and further submitted that removing of electric wirings worth Rs. 300 could surely come within the offence of mischief as defined u/s 425, Indian Penal Code. In any event, Mr. Jaiswal submitted that the averments made in the petition of the complaint would be decided by a trial on evidence and it would not be fair to scotch the proceeding at this stage. Mr. Mukul Gopal Mukherjee, as already noted above, supported this branch of the submissions of Mr. Jaiswal. Having considered the said submissions in the light of the materials on record I hold that so far as the accused-Petitioner No. 3, Kulbir Singh, is concerned it is not possible for me to hold at this stage because of the absence of any materials in the record that the case cannot proceed against him u/s 427, Indian Penal Code. But so far as the other two Petitioners are concerned, namely Rishi Ram Mitra alias R. R. Mitra and Sm. Anima Mitra, upon the averments made in the petition of complaint itself as also on the statements made on solemn affirmation by the complainant, there is no case against them u/s 427, Indian Penal Code. The allegations at their highest are that en January 31, 1969, in the evening, the durwan cut the electric connection and that he had done it under the orders of two persons who were not physically present there but are stated to be living at Kailash Bose Street, Calcutta. By no stretch of imagination or of law persons at that distance could be alleged to have abetted the offence in the manner as referred to above and that also within the knowledge of the complainant. They too serve who stand and wait may be good enough in some contingency but bad enough in the context of Section 427, Indian Penal Code, and in the light of the averments made by the complainant himself in the petition of complaint and also in the statement made on solemn affirmation. I, accordingly, hold that the continuation of the present proceeding u/s 427, Indian Penal Code, against the two owners, namely Rishi Ram Mitra alias R. R. Mitra and Sm. Anima Mitra, would be an abuse of the process of the Court and I quash the proceeding so far as they are concerned. I make it quite clear that I make no observation as to the merits of the case which is to proceed against the accused No. 3, viz. Kulbir Singh, in accordance with law.

In the result, I make the Rule absolute in part. While I quash the proceedings against the accused Petitioners Nos. 1 and 2, namely Rishi Ram Mitra alias R. R. Mitra and Sm. Anima Mitra.. u/s 427, Indian Penal Code, I direct that the proceedings against the accused Petitioner No. S. Kulbir Singh, shall continue before the learned trying Magistrate u/s 427, Indian Penal Code, in accordance with law and expeditiously. Let the affidavits filed in the Court today be kept on the record.

Let the records go down as early as possible.