Calcutta High Court (Appellete Side)
Dr. Bratindra Nath Mukherjee vs The State Of West Bengal And Another on 5 January, 2018
Author: Debi Prosad Dey
Bench: Debi Prosad Dey
1 S/L.213. C.R.R. No.825 of 2015 January 5, 2018 Bpg. In the matter of : Dr. Bratindra Nath Mukherjee Versus The State of West Bengal and another.
Mr. Biplab Mitra, Mr. Haradhan Banerjee, Mr. Amitava Pain, Mr. Rajmohan Chatterjee, Ms. Trina Mitra.
...for the petitioner.
Ms. Faria Hossain.
...for the State.
This application under Section 482 of the Code of Criminal Procedure has been filed for quashing the charge-sheet in connection with Entali Police Station Case no.348 dated 16.12.2010 under Section 448 of the Indian Penal Code corresponding to G.R. Case no.3362 of 2010 in respect of charge- sheet no.187 of 2013 on the ground that the case under reference is not maintainable in law in view of the fact that the petitioner remains in possession of the property and the petitioner being the sole surviving trustee used to occupy the property from before the alleged occurrence.
Learned advocate appearing on behalf of the petitioner contends that the beneficiaries of the property sold out the property in favour of opposite party no.2 by a registered deed of transfer and the said deed was executed on May 13, 2010 beyond the participation and knowledge of the present petitioner. However, the petitioner filed a Title Suit being no.185 of 2010 in the court of learned Civil Judge (Senior Division) at Sealdah challenging the deed of transfer made by some of the owners of the trustees in favour of the opposite party no.2 and the learned trial court after hearing both the parties decreed the suit in favour of the petitioner holding, inter alia, that the petitioner was in possession of the property from before. It is submitted that in that Title Suit, the opposite party no.2/defendant no.1 of that suit by filing the written statement admitted that he was never in possession of the suit property.
On careful consideration of the schedule property with the decree as 2 well as the First Information Report of this case, it transpires that the description of the property in the First Information Report matches with the property described in the schedule of the decree.
Learned advocate appearing on behalf of the petitioner further contends that the case was started under Sections 445/447/448/427/380/34 of the Indian Penal Code, but, in fact, charge-sheet has been submitted under Section 448 of the Indian Penal Code. Learned advocate has taken me through the definition of Section 448 of the Indian Penal Code in respect of the criminal trespass and submits that there was no intention on the part of the petitioner to commit any sort of annoyance or any other illegality by entering into the property and accordingly, the allegation under Section 448 of the Indian Penal Code alone cannot stand.
Learned advocate for the petitioner has relied on the decision reported in AIR 1964 SC 986 (Smt. Mathri and others Vs. State of Punjab), the relevant paragraph of such decision may be reproduced below:
"18. We think, with respect, that this statement of law as also the similar statements in Laxman Raghunath case and in Sellamuthu Servaigaran case is not quite accurate. The correct position in law may, in our opinion, be stated thus: In order to establish that the entry on the property was with the intent to annoy, intimidate or insult, it is necessary for the Court to be satisfied that causing such annoyance, intimidation or insult was the aim of the entry; that it is not sufficient for that purpose to show merely that the natural consequence of the entry was likely to be annoyance, intimidation or insult, and that this likely consequence was known to the persons entering; that in deciding whether the aim of the entry was the causing of such annoyance, intimidation or insult, the Court has to consider all the relevant circumstances including the presence of knowledge that its natural consequences would be such annoyance, intimidation or insult and including also the probability of something else than the causing of such intimidation, insult or annoyance, being the dominant intention which prompted the entry."3
Learned advocate Ms. Faria Hossain appearing on behalf of the State, however, fairly accepts the principle of law enunciated in the aforesaid decision and leaves the matter to the discretion of the Court to decide in terms of the prayer of the petitioner. Therefore, the question of trespassing into the suit property does not arise at any material point of time. That fact has already been admitted by the opposite party no.2 in his written statement and accordingly the title suit has been decreed by the civil court. Such decree between the parties is definitely binding on the opposite party no.2 and accordingly in any view of the circumstances, it cannot be said that the petitioner is guilty for the offence under Section 448 of the Indian Penal Code.
After going through the materials on record as well as the Case Diary, I am of the considered view that the charge-sheet does not constitute any offence under Section 448 of the Indian Penal Code and continuance of the said proceeding would be an abuse of process of law. In that view of this case, charge- sheet no.187 of 2013 corresponding to G.R. Case no.3362 of 2010 pending before the Court of learned Judicial Magistrate, 2nd Court at Sealdah is quashed. The application under Section 482 of the Code of Criminal Procedure stands allowed.
Let a copy of this order be forwarded to the court below for favour of information and necessary action.
Urgent photostat certified copies of this order, if applied for, be given to the parties upon compliance of all necessary formalities.
(Debi Prosad Dey, J.)