PARITOSH CHOWDHURY v. SIPRA BANERJEE — 1987 DIGILAW 206 (CAL)

MONORANJAN MALLICK, J. ( 1 ) THIS revisional application is directed against an order dt. 9th Feb. , 1987 passed by the learned Additional Sessions Judge, 12th Court, Alipore, on a revisional application directed against the order of discharge under S. 239 Cr. P. C. ( 2 ) THE facts stated in the order of the learned Additional Sessions Judge against which the present revisional application has been filed have not been disputed in the present revisional application before me : ( 3 ) THE opposite party No. 1 filed a complaint before the learned Sub-Divisional Judicial Magistrate on 17-7-85. The learned Magistrate sent it to the Officer-in-Charge Lake P. S. for investigation under S. 156 (3) Cr. P. C. on the basis of that complaint a formal F. I. R. was drawn up on 21-7-85 and a police case was started. The complainant, the present opposite party No. 1 who lives with her husband is a tenant under the opposite party No. 3 in respect of some rooms of the premises No. 152/b, Rash Behari Avenue, Calcutta-29. That tenancy includes a common passage leading from the main entrance door to the bath and privy of the complainant. The present opposite party No. 3 was trying to dispossess the petitioner who is a school teacher and her husband from 1985. The present petitioner and the present opposite party No. 4 reside in some portions of the same premises. The present opposite party No. 4 is a niece of the landlord, Sri R. N. Dey, the opposite party No. 3. The present petitioner is an associate of the landlord. These accused persons with a common intention of dispossessing the petitioner from the premises in question wrongly stopped supply of drinking water and restrained the petitioner and the members of her family from entering by the main entrance door and using the common passage. ( 4 ) AFTER investigating the case police submitted Charge-sheet against all the accused persons under S. 430/341 and 114 of the Penal Code. The learned Sub-Divisional Munsif taking cognizance of the case transferred the case to the court of the learned Magistrate concerned against whose order the Criminal revision was filed before the learned Sessions Judge. ( 5 ) THE learned Advocate for the petitioner at this stage points out to me that the said Criminal revisional application was numbered as criminal appeal. The learned Sub-Divisional Munsif taking cognizance of the case transferred the case to the court of the learned Magistrate concerned against whose order the Criminal revision was filed before the learned Sessions Judge. ( 5 ) THE learned Advocate for the petitioner at this stage points out to me that the said Criminal revisional application was numbered as criminal appeal. It is true that the certified copy of the order shows that. But the judgment of the learned Sessions Judge clearly shows that this application before him was treated as a revisional application and not as an appeal. ( 6 ) THE present petitioner urged the following points before me : No. 1 that the petitioner is merely a tenant in some portion of the same premises having no vested interest therein and that therefore he cannot be said to have connived with the landlord to do any wrong to the respondent and that there is nothing to show that the present petitioner could have any motive to do the wrong as alleged. No. 2. The complainant is not a tenant under the petitioner and that, therefore the petitioner cannot have any reason to interfere with the egress and ingress of the petitioner. No. 3. The petitioner is under no obligation to the opposite party No. 3, the landlord of the petitioner, because the petitioner is not a tenant under the opposite party No. 3, R. N. Dey but a tenant under Sm. Pranati Dey. No. 4. The complaint is under Ss. 430 and 341/1141. P. C. and the Challan was submitted by the police under those Sections but the learned Sessions Judge directed framing of the charge under S. 341/34 I. P. C. No. 5. The charge under S. 341 cannot be framed unless it is shown that the restraint was wrongful and was made under threat. In the present case in view of the relationship stated there cannot be any mens rea or motive or enmity between the complainant on the one hand and the present petitioner on the other. No. 6. The Magistrate rightly discharged the accused persons because he correctly held that the question as to whether the complainant has a right of user of the passage was absolutely civil in nature. ( 7 ) THE only point raised in this revisional application is whether any prima facie case has been made out under S. 341. No. 6. The Magistrate rightly discharged the accused persons because he correctly held that the question as to whether the complainant has a right of user of the passage was absolutely civil in nature. ( 7 ) THE only point raised in this revisional application is whether any prima facie case has been made out under S. 341. ( 8 ) THE learned Magistrate found that no such case was made out because "the papers of the police disclose that there is another avenue for the complainant to approach her tenancy. It cannot, therefore, be said that the complainant tenant was restrained to enter into the flat or from using the same". This approach of the learned Magistrate is based on a wholly erroneous conception of the provision of S. 341 which has been correctly stated by the learned Sessions Judge in the impugned order. ( 9 ) THE points Nos. 1, 2 and 3 which have been raised by the learned Advocate for the petitioner and which have already been noted above are based on conjectures, what are to be considered at the time of framing charge are not conjectures but the police papers including the statement recorded under S. 161 Cr. P. C. ( 10 ) WITH regard to point No. 4 it may be noted that the mentioning of particular charges in the police Challan cannot be said to be sacrosanct. Charge is to be framed not merely on the basis of the statements of the complainant mentioning particular Section or the statement to the similar effect in the police Challan but on the basis of the papers prima facie making out a case. ( 11 ) WITH regard to point No. 5, the learned Sessions Judge has correctly appreciated the materials on record. He after duly considering the statements of several witnesses recorded under S. 161 Cr. P. C. making out a prima facie case that the accused Paritosh Chaudhuri and the opposite party No. 4, Kum Kum Dey are also restraining the complainant and the members of her family from using the main gate by force and abuses. It has not been alleged before me that the statements of the witnesses were not duly considered by the learned Sessions Judge. It has not been alleged before me that the statements of the witnesses were not duly considered by the learned Sessions Judge. In view of such papers the learned Magistrate was utterly wrong in discharging the accused on the ground that the question raised was a question of a civil nature and that criminal restraint cannot be found. After considering the judgment of the learned Sessions Judge I do not find that any irregularity or illegality has been committed by him subject to the observation made below. ( 12 ) WITH regard to the order passed, the learned Advocate for the State as well as the learned Advocate for the petitioner pointed out that the learned Sessions Judge has committed an error by directing the learned Judicial Magistrate to frame charge against all the accused persons for the offence punishable under S. 341/34 I. P. C. It should be noted that this is undoubtedly a defect. Accordingly this direction is set aside. As the order of discharge has been justly found to be erroneous by the learned Sessions Judge, the learned Sessions Judge was quite justified in setting aside the order of discharge. As it is the function of the trial Court to frame charge the learned Magistrate should frame charge on the basis of the materials discussed by the learned Sessions Judge as well as other materials on record on the basis of which charge is framed. This revisional application is thus disposed of. Order accordingly.