JUDGMENT : Ananya Bandyopadhyay, J. 1. This instant criminal appeal is preferred against the judgment and order of acquittal dated 31.08.2001 passed by Learned Metropolitan Magistrate, 8th Court, Calcutta in Case No. C-1122/96 arising out of the T.R. No. 331/96 holding thereby the accused/respondents not guilty of having committed an offence under Section 380 of the Indian Penal Code. 2. Appellant filed a complaint on 20.06.1996 in the court of the Learned Chief Metropolitan Magistrate, Calcutta against the accused/respondents to the effect that on 16.12.1993 he filed a complaint in the court against the accused/respondents under Section 156(3) of the Code of Criminal Procedure being Case No. C/126/93. Accordingly a case was registered and investigation was going on. The averments of complaint disclosed that on 05.02.1993 at about 12 noon the accused/respondents along with 30/40 persons including house breakers and anti-social forming an unlawful assembly in furtherance of their common intention attacked the room of the appellant at 3/H/31, Khalasitola Road (Personage Road) under Police Station Hastings, Calcutta – 700022 and by using of criminal force caused extensive damage to the room by breaking its door, roof and wall most wrongfully and illegally and dishonestly removed all belongings and valuable materials of the appellant, comprising of Clothing, Furniture, Utensils, One Bicycle, Radio-cum-Tape, One Steel Box containing of Cash of Rs. 1400/-, One Gold Tailak and other Gold Ornaments valued Rs. 12,000/-, gold and silver Ornaments were purchased for the marriage of the daughter of the appellant. At the time of incident the appellant had gone to Mosque to attend Jumma Prayer. When the complainant returned, he found the accused/respondents gathered in front of his room. The accused/respondents were instigating the anti-socials assembled there to pull down his room and to remove all the articles and belongings of the appellant. Appellant out of fear ran away and lodged a G.D. Entry with Hastings Police Station but the police was found to be in-active. Thus the aforesaid Case No. C-126/93 was filed in the Court. Pursuant to the direction of Court in the Case No. C-126/93 the Section ‘L’ Case No. 107 dated 30.03.1993 i.e. G.R. Case No. 107 dated 30.03.1993 i.e. G.R. Case No. 926/93 was instituted. Subsequently the aforesaid case was shifted the Hastings Police Station, Police did not investigate and file charge-sheet even after lapse of more than 3 years from the date of occurrence. Subsequently the aforesaid case was shifted the Hastings Police Station, Police did not investigate and file charge-sheet even after lapse of more than 3 years from the date of occurrence. Under the above circumstances Narazi petition was filed in form of the above stated case against the accused persons seeking justice. 3. Under Section 200 of the Code of Criminal Procedure, a prima facie case under Section 147/380 and 427 of the Indian Penal Code was noted by the Learned Chief Metropolitan Magistrate, Calcutta who issued summons against the accused/respondents. 4. Charge was framed against the accused/respondents under Section 380 of the Indian Penal Code. 5. The aforesaid charge was read over and explained to the accused/respondents to which they pleaded not guilty and claimed to be tried. 6. To prove his case the appellant adduced six witnesses including himself as PW-1. 7. On the other hand the accused/respondents adduced One oral evidence and three documentary evidence to rebut the charge against them. 8. However, the Learned Metropolitan Magistrate, 8th Court, Calcutta after considering the evidence and other materials on record was pleased to acquit the accused/respondents from the case on 31.08.2001. 9. Heard the submissions of both the Learned Amicus Curiae. 10. A circumspection of the prosecution witnesses revealed as follows: i. PW-1 was the de-facto complainant of the instant case. He stated that he was the sole occupant of the premises situated at 3/H/31 Khalasitola Road, Calcutta-22, where the alleged incident transpired on 5.2.93, at 12pm. He further stated that, on the aforementioned date, subsequent to attending 'Juma' prayer at the local mosque and having a meal at a nearby hotel, he returned to discover the presence of the accused persons, accompanied by approximately 30 to 40 other persons, in front of his residence. Notably, police officers were also present at the scene. PW-1 observed the destruction of his room and the theft of various personal items. The purloined possessions encompassed an electric fan, a bicycle, a tape recorder, garments, furniture, and a steel box. The aforementioned steel box contained a gold 'tikli' weighing 12 anas, two 'nak chabi' weighing 8 anas and 4 anas respectively, a silver 'payel' weighing 12 bhori, and an amount of Rs.1400/-in cash. The cumulative value of the articles contained in the box was estimated to be approximately Rs.12000/-. In response to his inquiry, the accused individuals purportedly issued threats of physical harm. The cumulative value of the articles contained in the box was estimated to be approximately Rs.12000/-. In response to his inquiry, the accused individuals purportedly issued threats of physical harm. Fearing for his safety, PW-1 reported the incident to the Hastings police station and filed a G.D. entry. He noted that, despite three years having elapsed, the police had not filed a charge sheet, nor had a thorough investigation been conducted, resulting in the recovery of the stolen items. Consequently, PW-1 initiated a 'Narazi' petition before the Court. He disclosed that he had not received any summons from the Small Causes Court, pertaining to the incident that led to the ransacking of his residence, based on the court order. Prior to the incident under consideration, PW-1 indicated that he had instituted a civil suit in the City Civil Court against the accused individuals. Notably, he mentioned the payment of a monthly rent amounting to Rs.100/-to the Rent Control Authority. During cross-examination, PW-1 clarified that no written lease agreement existed between him and the accused individuals. He further disclosed that he had been the sole tenant of the aforementioned residence since the year 1987 or 1988. He asserted that although his landlord, Sk. Mehboob, collected rent, no formal rent receipts were issued, and no written tenancy or lease agreement existed. PW-1 refuted allegations of unlawful possession subsequent to the expiration of the lease, disputing any legal action taken by his landlord in the Small Causes Court. He denied any knowledge of case no. 32 of 1992, alleging a favorable order against him on 19.8.1992, and contended that police officers removed his possessions on the day of the incident, which were subsequently looted and stolen. ii. PW-2 asserted that on the 5.2.1993, around 12-2pm, the accused persons, in conjunction with others, invaded the residence of PW-1. They forcibly gained entry by breaking the lock on the aforementioned house and proceeded to ransack it, looting various items such as a bicycle, a fan, a tape recorder, and a steel box. Notably, at the time of the incident, PW-1 was not present in his residence. The perpetrators, in the course of their actions, inflicted damage and demolished the residence. Subsequently, at approximately 2pm, PW-1 arrived at the scene, whereupon the accused persons issued threats, prompting PW-1 to depart from the scene out of fear. Notably, at the time of the incident, PW-1 was not present in his residence. The perpetrators, in the course of their actions, inflicted damage and demolished the residence. Subsequently, at approximately 2pm, PW-1 arrived at the scene, whereupon the accused persons issued threats, prompting PW-1 to depart from the scene out of fear. PW-2, along with other individuals, attested to being eyewitnesses to the incident. Additionally, PW-2 contended that he was assaulted by the accused individual, Sk. Azim, due to his association with the ongoing case. In response to the assault, PW-2 filed a case before the 3rd M.M. Court in Calcutta, resulting in the acquittal of the accused, Sk. Azim. During cross-examination, PW-2 disclosed that he held joint tenancy at 3/H/31 Khalasitola, Calcutta-22. This assertion appeared to be incongruent with the deposition of PW-1. Furthermore, PW-2 stated that no name was specified on the rent receipt, and he deposited his rent with the Rent Controller in 1992 or 1993. He clarified that there was no formal tenancy agreement between him and his landlord. Notably, he observed that the police allegedly assisted the accused individuals and other participants in the destruction and ransacking of PW-1's residence. iii. PW-3 recounted that the incident occurred on the 5.2.1993, between 12-2pm. As he was returning home from the mosque, he encountered a group of 30 to 40 people, including the accused persons, in the act of looting items from the room of PW-1. Notably, PW-1 was present at the location during the unfolding of the looting. The accused individuals forcibly entered the room by breaking the lock on the door using an iron rod. Subsequently, they issued threats to PW-1, prompting him to flee the scene in fear. During cross-examination, PW-3 affirmed the presence of the police at the scene while the looting was taking place.PW-4 affirmed his acquaintance with both parties involved in the case. He specified that the incident transpired on the 5.2.1993, between 12-1pm. According to his account, the accused persons engaged in the looting of the personal belongings of PW-1, and approximately 30 to 40 people were assembled at the location during the occurrence. Notably, PW-1 was not present at the scene at the time of the incident. iv. During cross-examination, PW-4 reiterated the presence of the police at the scene when the incident was unfolding. Notably, PW-1 was not present at the scene at the time of the incident. iv. During cross-examination, PW-4 reiterated the presence of the police at the scene when the incident was unfolding. v. PW-5, having acquaintance with both parties, recounted the incident that transpired on the 5.2.1993, between 12-1pm. He reported that the looting of articles belonging to PW-1 commenced in the absence of PW-1. vi. PW-6, having familiarity with both parties, recounted the incident that occurred on the 5.2.1993, between 12-1pm. According to his testimony, the police, along with the accused persons and approximately 25 to 30 people, forcefully entered the residence of PW-1 by breaking into his room. Notably, PW-1 was absent at the time of the incident. PW-6 observed the accused individuals damaging and looting the belongings of PW-1. Additionally, he mentioned that PW-1 resided alone at the place of occurrence. 11. Section 380 of Indian Penal Code states as follows:- “380. Theft in dwelling house, etc.— Whoever commits theft in any building, tent or vessel, which building, tent or vessel is used as a human dwelling, or used for the custody of property, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.” 12. In Birla Corporation Limited Vs. Adventz Investments and Holdings Limited and Ors., (2019) 16 SCC 610 , the Hon’ble Supreme Court held as follows:- “70. In the criminal complaint, by order dated 8-10-2010, the Magistrate has taken the cognizance of the offence under Section 380 IPC — “Theft in dwelling house, etc.” In order to constitute theft, the following ingredients are essential: (i) Dishonest intention to take property; (ii) The property must be moveable; (iii) It should be taken out of the possession of another person; (iv) It should be taken without the consent of that person; (v) There must be some removal of the property in order to accomplish the taking of it. 71. Intention is the gist of the offence. It is the intention of the taker which must determine whether taking or moving of a thing is theft. The intention to take “dishonestly” exists when the taker intends to cause wrongful loss to any other which amounts to theft. 71. Intention is the gist of the offence. It is the intention of the taker which must determine whether taking or moving of a thing is theft. The intention to take “dishonestly” exists when the taker intends to cause wrongful loss to any other which amounts to theft. It is an essential ingredient of the offence of “theft” that the movable property should have been “moved” out of the possession of any person without his consent. “Movable property” is defined in Section 22 IPC, which reads as under: “22. “Movable property”.—The words “movable property” are intended to include corporeal property of every description, except land and things attached to the earth or permanently fastened to anything which is attached to the earth.” 72. “Dishonestly” has been defined in Section 24 IPC, which reads as under: “24. “Dishonestly”.—Whoever does anything with the intention of causing wrongful gain to one person or wrongful loss to another person, is said to do that thing “dishonestly”.” 73. “Wrongful gain” and “Wrongful loss” have been defined in Section 23 IPC, which read as under: “23. “Wrongful gain”.— “Wrongful gain” is gain by unlawful means of property to which the person gaining is not legally entitled. “Wrongful loss”.— “Wrongful loss” is the loss by unlawful means of property to which the person losing it is legally entitled. Gaining wrongfully : Losing wrongfully.— A person is said to gain wrongfully when such person retains wrongfully, as well as when such person acquires wrongfully. A person is said to lose wrongfully when such person is wrongfully kept out of any property, as well as when such person is wrongfully deprived of property.” 74. In the facts and circumstances of the case, it is to be seen in using the documents in the litigation, whether there is “dishonest intention” on the part of the respondents in causing “wrongful loss” to the appellant Company and getting “wrongful gain” for themselves.” 13. The complaint apparently failed to establish the charge of theft to justify the ingredients to constitute an offence under Section 380 of the Indian Penal Code. The Learned Trial Court opined that the opposite party took possession of the room in accordance to an order pronounced by a Civil Court and the same could not be considered to be illegal. 14. In view of the above discussions, the instant criminal appeal being CRA 477 of 2001 is dismissed. 15. The Learned Trial Court opined that the opposite party took possession of the room in accordance to an order pronounced by a Civil Court and the same could not be considered to be illegal. 14. In view of the above discussions, the instant criminal appeal being CRA 477 of 2001 is dismissed. 15. There is no order as to costs. 16. I record my appreciation for the able assistance rendered by Learned Advocates, Ms. Suparna Chatterjee, and Mr. Santanu Talukdar as Amicus Curiae in disposing of the appeal. 17. Lower Court records along with a copy of this judgment be sent down at once to the Learned Trial Court for necessary action. 18. Photostat certified copy of this order, if applied for, be given to the parties on priority basis on compliance of all formalities.