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2010 DIGILAW 587 (CAL)

Dipak Barman v. STATE OF WEST BENGAL

2010-05-21

ASHIM KUMAR ROY

body2010
JUDGMENT 1. INVOKING Section 482 of the Code of Criminal Procedure, the petitioners have moved this Court for quashing of the charge sheet relating to Mathabhanga P.S. Case No. 4 of 2006 under Section 411/413/414 of the Indian Penal Code, now pending before the Learned Additional Chief Judicial Magistrate, Mathabhanga, Cooch Behar being G.R. No. 08/06. 2. HEARD Mr. Rabi Shankar Chattopadhyay, learned advocate, appearing on behalf of the petitioners as well as Ms. Minati Gomes, learned advocate, appearing on behalf of the State. Perused the materials on record. It appears in the year 1999 four idols made of "Austo Dhatu" namely, Durga, Kartick, Lakshmi and Swaraswati were stolen away by some miscreants from the temple of "Shri Shri Iswari Sunandeswari Durga Devi Temple", Mathabhanga, Cooch Behar. Following such incident, Mathabhanga P.S. Case No. 142 of 1999 under Sections 461/379 of the Indian Penal Code was registered. However, in the year 2001 the police submitted final report in connection with the said case on the ground neither the stolen idols could have been recovered nor any miscreants was apprehended vide final Report No. 116 of 2001 dated November 28, 2008. Subsequently, acting on a source information police held a raid at the residence of the present petitioners on January 11, 2006 and recovered one idol of Durga concealed beneath the cot and the present petitioners, the father and the son were arrested. Whereupon Mathabhanga P.S. Case No. 4 of 2006 under Sections 411/413/414 of the Indian Penal Code was registered. During investigation it was discovered that this idol which was recovered by the police now, was that idol which was stolen away in the year 1999 from the temple of "Shri Shir Iswari Sunandeswari Durga Devi Temple". However, police proceeded simultaneously with both the aforesaid cases, namely Mathabhanga P.S. Case No. 4 of 2006 and Mathabhanga P.S. Case No. 142 of 1999 and submitted charge sheet while in connection with Mathabhanga P.S. Case No. 142 of 1999 under Sections 461/379 of the Indian Penal Code, submitted charge sheet under Sections 411/413/414 of the Indian Penal Code in connection with Mathabhanga P.S. Case No. 4 of 2006. After submission of the charge sheet, petitioners moved the Learned Court below for tagging of both the cases on the ground that the same arose out of the selfsame incident but such prayer was rejected, hence this criminal revision. 3. After submission of the charge sheet, petitioners moved the Learned Court below for tagging of both the cases on the ground that the same arose out of the selfsame incident but such prayer was rejected, hence this criminal revision. 3. IT would not be out of place to mention that while moving this criminal revisional application, the petitioners have also prayed for quashing of the charge sheet relating to Mathabhanga P.S. Case No. 4 of 2006 for the offences punishable under Sections 411/413/414 of the Indian Penal Code and on the ground that the evidentiary materials collected during investigation do not constitute such offences. 4. HEARD the learned advocates appearing on behalf of the parties. Perused the Case Diaries relating to the Mathabhanga P.S. Case No. 142 of 1999 and the Mathabhanga P.S. Case No. 4 of 2006. It appears while the first case was started over the theft of idols from the temple of "Shri Shir Iswari Sunandeswari Durga Devi Temple", the second case was started following the recovery of one such stolen idols from the possession of the present petitioners. In my opinion, when in both the cases the acts involved are so closely connected together as to form same transaction, for ends of justice both the cases to be tagged together. 5. NOW, the only question that left for consideration whether on the materials collected by the police during the investigation of Mathabhanga Police Station Case No. 142 of 1999 justify submissions of charge-sheet under Sections 411/413 and 414 of the Indian Penal Code. In order to prosecute a person for an offence punishable under Sections 413 and 414 of the Indian Penal Code it is necessary that there must be some materials to show that the accused concerned is the habitual receiver or habitually deals in any stolen properties and voluntarily assist in concealing or disposing of or in making away with property which he knows or has reason to believe to be stolen property. NOW, having gone through the evidentiary materials collected by the police during investigation, I find no material to show that the accused/petitioners were habitually dealing or habitual receiver of any stolen property except some bald allegation made by some witnesses. I also do not find the police worked out such allegation and collected any materials in support of the same. NOW, having gone through the evidentiary materials collected by the police during investigation, I find no material to show that the accused/petitioners were habitually dealing or habitual receiver of any stolen property except some bald allegation made by some witnesses. I also do not find the police worked out such allegation and collected any materials in support of the same. However, so far as the offence punishable under Section 411 and 414 of the Indian Penal Code are concerned I find it is the case of the prosecution that the stolen idol of Devi Durga was recovered from the possession of the petitioners which was kept concealed beneath their bed inside a gunny bag. Therefore, there is no wrong in submission of charge-sheet under Sections 411/414 of the Indian Penal Code against the petitioners. Accordingly, the charge-sheet under Section 413 of the Indian Penal Code, relating to Mathabhanga Police Station Case No. 4 of 2006 is quashed. It is directed the charge-sheet relating to Mathabhanga Police Station Case No. 142 of 1999 under Sections 461/379 of the Indian Penal Code and the charge-sheet relating to Mathabhanga Police Station Case No. 4 of 2006 under Sections 411/414 of the Indian Penal Code be tagged together. The Court below is further directed to immediately proceed with the matter and conclude the trial as expeditiously as possible within a year from the date of communication of this order. The petitioners are directed to be present before the Court below within two weeks from this date. Criminal Section is directed to deliver urgent Photostat certified copy of this Judgement to the parties, if applied for, as early as possible.