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1969 Supreme(Cal) 149
CALCUTTA HIGH COURT
N. C. TALUKDAR, J.
Kaviraj Basudevananda - Petitioner
v.
The State - Opp. Party
Criminal Revn. No. 381 of 1969
Decided on: 23-6-1969
Chintaharan Roy and Arun Kishore Das Gupta, for Petitioner;
Narayan Ranjan Mukherjee, for Opposite Party.
Criminal proceedings cannot be initiated for a civil cause of action, especially when a civil suit over the same subject matter is pending and has been decreed. Additionally, it is improper to agitate an old incident in a criminal court.
Headnote:
CRIMINAL PROCEDURE CODE, 1973 - SECTION 406 - CHARGE FRAMING - ABUSE OF PROCESS - CIVIL SUIT PENDING - OLD INCIDENT - PROPRIETY OF CRIMINAL PROCEEDINGS - RULE MADE ABSOLUTE.
Fact of the Case:
The accused-petitioner was charged under Section 406 of the Indian Penal Code for allegedly misappropriating property entrusted to him in 1948. The accused challenged the charge, arguing that the criminal proceedings were an abuse of process since a civil suit over the same property was pending and that the incident was too old to be agitated in a criminal court.
Finding of the Court:
The court found that the criminal proceedings were unwarranted and untenable since a civil suit over the same subject matter was already pending and had been decreed. The court also held that the continuance of the criminal proceedings would be improper and not maintainable, considering the old age of the incident.
Issues: 1. Whether the criminal proceedings were an abuse of process in light of the pending civil suit. 2. Whether the criminal court was the proper forum to adjudicate an incident that occurred so long ago.
Ratio Decidendi: 1. The court held that the criminal proceedings were an abuse of process since the relief sought was essentially civil in nature and the criminal court was not the proper forum to determine the issue. 2. The court held that the continuance of the criminal proceedings would be improper and not maintainable, considering the old age of the incident.
Final Decision: The court made the rule absolute, set aside the charge framed against the accused, and quashed the relative proceedings pending before the magistrate.
This Rule must be made absolute.
2. The Rule is against an order dated the 12th March, 1969, passed by Sri K.R. Banerjee, Magistrate, 1st Class, Howrah.
In Case No. G. R. 1011 of 1967
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T. R. 141 of 1968
charging the accused-petitioner Kaviraj Basudevananda under Sec. 406 of the Indian Penal Code where to be pleaded not guilty and claimed to be tried and fixing two dates for evidence.
3. The facts leading on to the present Rule are short and simple. On the 6th April, 1967, one Dibakar Chakravorty as the Manager of the Estate of Mr. C.L. Daga and Sm. Ratan Kunwar Debi, filed a petition of complaint under Section 406 of the Indian Penal Code against the present accused Kaviraj Basudevananda, before the Sub-Divisional Magistrate (Judicial), Howrah, and on receipt of the said complaint, the learned Sub-Divisional Magistrate, sent the petition of complaint to the Police for taking cognizance and for investigation. The said complaint, thereupon, was treated as the First Information Report and, after completing the investigation, a charge-sheet was submitted against the accused-petitioner under Sections 420/406 of the Indian Penal Code before the learned Sub-Divisional Magistrate, Howrah. The case was, ultimately, transferred to the file of the present incumbent Sri K.R. Banerjee, Magistrate, 1st Class, Howrah for disposal. Copies of documents and statements were supplied to the accused and, after hearing the parties, the learned trying Magistrate, by his order dated the 12th March, 1969, framed a charge under Sec. 406 of the Indian Penal Code against the accused-petitioner. The said charge has been impugned and forms the subject-matter of the present Rule.
4. Mr. Chintaharan Roy, Advocate (with Mr. Arun Kishore Das Gupta, Advocate), appearing on behalf of the accused-petitioner, in support of the Rule, has made a two-fold submission. The first contention of Mr. Roy is that the present proceedings are unwarranted and untenable, in view of the two earlier suits in the Civil Court now pending, namely, one in the court of the learned Munsif, 5th Court at Howrah and the other in the Hon'ble High Court over the said properties. Mr. Roy argued in this context that the cause of action is essentially civil in nature and the criminal proceedings are an abuse of the process of the Court. The second contention of Mr. Roy is that the date of the incident is, ex facie, significant being the 24th day of March, 1948 and for agitating such an old matter, the criminal court is, certainly, not the proper forum. Mr. Narayan Ranjan Mukherjee, Advocate, appearing on behalf of the State has submitted that there is nothing on the record to show that there is a suit pending in the High Court and that there is no bar in law to the institution of the present criminal proceedings, merely because, over the same property a suit in the civil court at Howrah is pending. With regard to the second contention raised by Mr. Roy, Mr. Mukherjee has submitted that it is, undoubtedly, unusual but not illegal and he left the matter to the discretion of the Court.
5. Having heard the learned Advocates appearing on behalf of the respective parties and on going through the materials on record, I find that there is a considerable force behind the submissions of Mr. Chintaharan Roy. On or about the 15th December, 1965, long before the institution of the present criminal case under Sec. 406 of the Indian Penal Code, Smt. Ratan Kunwar alias Ratan Kunwar Debi as well as Kaviraj Basudevananda, the present petitioner, jointly instituted Title Suit No. 233 of 1965 in the court of the learned Munsif, 5th Court at Howrah against one Sidheswar Chakravorty for khas possession of the suit properties evicting the said Sidheswar Chakravorty and it was clearly averred therein that the property was possessed by the plaintiff No. 1 Smt. Ratan Kunwar Debi by virtue of a declaration made by the plaintiff No. 2, Kaviraj Basudevananda. The said suit, thereafter, was decreed
