HARENDRA NATH MANDAL Vs. BEJOY KRISHNA DAS

JUDGEMENT

(1.) THIS is a rule against an order of acquittal. The facts which need be stated briefly are as follows: Certain property belonged to one Mohan Lai Singh who died leaving two brothers Murarilal Singh and Manilal Singh and two children who are the two accused Bejoy Krishna Das alias Singh and Subal Chandra Das alias Singh as well as certain other female children with whom we are not concerned. Upon Mohan - lal's death, proceedings were started by Murarilal Singh and Manilal Singh under part vii, Succession Act. Some proceedings were started to determine who were entitled to the property. Pending the determination of those summary proceedings the complainant, Harendra Nath Mandal was appointed curator of the property left by the deceased in accordance with the provisions of Section 195, Succession Act. The curator took possession of the - properties and made an inventory thereof. Amongst the properties was an almirah which was left in the custody of Murarilal Singh and Manilal Singh on their furnishing security, It was found that this almirah contained a secret drawer in which 'there was a sum of Rs, 3400. It is said that the two accused whose names are Bejoy Krishna Das alias Singh and Bubal Chandra Das alias Singh seized the almirah and withdrew from it the sum contained in the drawer. Upon this the curator approached the accused persons and they promised to return the same or to deposit in Court. They however did not do so and the curator instituted criminal proceedings against them charging them with having committed an offence punishable under Sections 404 and 379, Penal Code, I may mention here that the contention of Murarilal Singh and Manilal Singh is that these two accused persons were not legitimate sons of Mohanlal Singh but sons of mistress of his. That matter however has not been decided by either of the Court below. There is no doubt however that they were sons, legitimate or illegitimate, of the deceased Mohanlal Singh. The trial Court found the accused guilty of having committed an offence under Section 404, Penal Code but acquitted them of the charge under Section 379, Penal Code, that is, of the charge of theft, on the ground that possession of the almirah was not really the possession of the curator. Against this order of conviction and sentence the two accused appealed to the Sessions Judge of 24 -Parganas and the appeal was disposed of by the Additional Sessions Judge, He has held that no charge could lie under Section 404, Penal Code anc1. he has acquitted the appellants of that charge and allowed the appeal. Against this order of acquittal by the Additional Sessions Judge the curator Harendra Nath Mandal moved this Court and obtained this rule

(2.) THIS Court seldom interferes in revision with orders of acquittal and where Government does not decide to appeal, the Court is always reluctant in revision to interfere but interferes only where there has been some flagrant misapplication of the law or Borne flagrant injustice. The first point for decision therefore is whether on the facts stated by the prosecution the accused could be found guilty of an offence punishable under Section 404, Penal Code. Section 404, Penal Code is in the following terms:

(3.) THE learned advocate appearing on be. half of the petitioner, Harendra Nath Mandal, strongly criticises the decision of the Additional Sessions Judge on the second question. He says that the curator is not a person legally entitled to possession of the property and therefore, the property not being in possession of a person legally entitled to possession thereof, Section 404 Penal Code applies. I am leaving aside for the moment the question of dishonest intention. I shall deal first with this criticism by the learned advocate for the petitioner of the decision of the learned Additional Sessions Judge on the question whether the curator was the person legally entitled to possession of the property. The learned advocate contends that the property must eventually go to one or the other of the claimants, that therefore the curator cannot be said to be legally entitled to possession of the property, I am of opinion that this argument is fallacious. A person may not have title to property in the sense of title to the ownership of the property, but yet he may be legally entitled to possession thereof. In the present case the curator was appointed by the District Judge and under Section 196, Succession Act the curator was authorised by the District Judge to take possession of the property and he took possession thereof. A person who is authorised by a Court to take possession of property is in my opinion the person legally entitled to possession, I think that there is some confusion of thought in the argument of the learned advocate for the petitioner who seems to think, that v because the words "entitled to possession" have been used no person without tills to the owner -ship of the property can be a person legally entitled to possession. There is no authority in support of such an argument and I am of opinion that it cannot prevail. On this ground alone the charge against the accused under Section 404, Penal Code must fail as one of the necessary ingredients of the offence described in Section 404, Penal Code is absent.