N.C. Talukdar, J. -
(1.) This Rule is at the instance of the three accused Petitioners for quashing proceedings under Sec. 427 of the Indian Penal Code pending in the Court of Sri G. M. Ganguly, Magistrate, First Class, Alipore, District 24 -Parganas, in case No. C. 238 of 1969.
(2.) The facts leading on to the Rule are short and simple. The complainant Prahlad Chandra Das, who is the opposite party in the present Rule, is a tenant in respect of a shop room at premises No. 5A Fern Road, Calcutta, under the accused Rishi Ram Mitra alias R. R. Mitra and Sm. Anima Mitra, at the rate of Rs. 10 per month and carries on the business of a tailoring shop named and styled as Dress Museum. The accused -Petitioner No. 3 Kulbir Singh is the durwan of the landlords. A petition of complaint was filed by the complainant -opposite party on February 5,1960, before Sri G. M. Gunguly, Magistrate First Class, Alipore, 24 -Parganas, under Ss. 379/427, Indian Penal Code, against the three accused -Petitioners and others who are stated to be the diirwam of the landlord alleging, inter alia, that the landlords refused to receive the rent compelling thereby the complainant to deposit the same with the Rent Controller. It was further alleged that the electric meter box of the complainant's shop was installed in premises No. 5E Tern Road, Calcutta, along with the meters of some other tenants. On January 31, 1969, at about 5 -30 p.m. on the date of the incident, the accused No. 3, Kulbir Singh, as also other durwans under the orders of the owners of the premises, namely Rishi Ram Mitra and Sm. Anima Mitra, cut the electric connection of the complainant's shop by removing the electric wirings and the meter kid guard committing thereby mischief lo the extent of Rs. 300 in addition to the daily Loss suffered by the complainant because of the absence of any electric connection. Protest made to the landlord was in vain. A diary was lodged and ultimately the petition of complaint was hide. The complainant in his examination on solemn affirmation before the learned Magistrate reiterated that on January 31, 1969, at about 5 -30 p.m. the accused Kulbir Singh under orders of the accused Nos. 1 and 2, namely the two owners of the premises, disconnected electric connection and removed the outside wirings from the meter board the value whereof would be Rs. 300 and that the protests made by the complainants employee were thrown to the winds. The learned Magistrate examined the complainant and by his order dated February 5, 1969, summoned the accused persons under Sec. 427, Indian Penal Code, only. The accused persons appeared thereafter and were released on bail arid the accused No. 2 Sm. Anima Mitra was also granted personal exemption under Sec. 205, Code of Criminal Procedure. The proceedings pending in the Court below were impugned and the present Rule was issued.
(3.) Mr. Dinesh Chandra Roy, Advocate (with Mr. Nilmani Goswami, Advocate) appearing in support of the Rule on behalf of the three accused -Petitioners, has made a three -fold submission. Mr. Roy contended in the first place that a continuance of the present proceedings under Sec. 427, Indian Penal Code, which is a general Act, is bad and repugnant because on the same set of facts a prosecution is maintainable under Sec. 31 of the West Bengal Premises Tenancy Act, 1956, which is a special Act. In this context Mr. Roy referred to the observations of Maxwell on Interpretation of Statutes (11th ed.) as to the maintainability of a prosecution under the general Act when there is specific provision therefore in the special Act. The second contention of Mr. Roy relates to the merits of the case, and in this context he submitted that the prosecution case taken at its highest, as incorporated in the petition of the complainant as also in the statement on solemn affirmation, falls short of the essential ingredients of mischief as defined in Sec. 425 of the Indian Penal Code enjoining that there must not only be the intention to cause or the knowledge of loss or damage to the public or to any person in destroying the property in question or causing such change in the property or in the situation thereof as destroying or diminishing its value or utility or affect it injuriously would amount to mischief. Mr. Roy submitted that the allegations made by.the prosecution taken at their highest did neither cause any destruction to the property nor any such change in the same as would destroy or diminish its value or utility. The sine qua non of a prosecution under Sec. 427, Indian Penal Code, was therefore non est. The third and the last submission of Mr. Roy is that in any event there is no case against the 'accused -Petitioners Nos. 1 and 2, viz. Rishi Ram Mitra and Sm. Anima Mitra and a continuance of the proceedings against them would be merely an abuse of the process of the Court. Mr. Krishnadas Jaiswal, Advocate appearing on behalf of the complainant -opposite party, joined issue. Mr. Jaiswal submitted in the first instance that the first contention raised on behalf of the accused -Petitioner by Mr. Roy is more technical than real inasmuch as the cloud raised on the said point has been removed and the point has been decided finally in a series of decisions of this Court and also of the Supreme Court. There is no bar in limine accordingly to a prosecution under the general Act merely because on the same set of facts a prosecution under Sec. 31 of the West Bengal Premises Tenancy Act, 1956, which is a special Act, also did lie. Mr. Jaiswal contended in the second place that it was rather premature at this stage to pray for quashing the proceedings on the ground of merit, in view of the material allegations made in the petition of complaint in general and in para. 5 thereof in particular along with the statements made on solemn affirmation by the complainant. Mr. Jaiswal further submitted in this context that the quashing was an extra -ordinary remedy and, if the prosecution be allowed to be quashed at this stage, the complainant would be denied his rig -lit to establish his grievances in the Court of law. As to the third contention of Mr. Roy, Mr. Jaiswal's rejoinder is that it is too early to hold that there is no case against the accused -Petitioners Nos. 1 and 2 in view of the averments made in the petition of complaint as also on solemn affirmation that the durwan merely carried out the orders of the owners. Whether the said allegations are correct or not would be proved by a trial on evidence. Mr. Mukul Gopal Mukherjee,. Advocate appearing on behalf of the State, opposed the Rule. Apart from the submissions of law made by Mr. Jaiswal, which he adopted, Mr. Mukherjee further submitted that on the question of merits the proceedings could not at this stage be quashed. The allegations made in the petition of complaint as also in the statements on solemn affirmation should be the basis for proceeding unless and until there is any evidence of rebuttal and the question of quashing at this early stage does not arise. It will merely prejudice the complainant and tinker with the continuance of the present proceedings. Besides the arguments referred to above, an affidavit -in -opposition as also an affidavit -in -reply were filed and used by the Petitioner as also the complainant -opposite party.;