- (1.) The present case arises out of an application under Section 397, Section 401 and Section 482 of the Code of Criminal Procedure, 1973. The petitioners filed the said application praying for quashing of the proceedings being No. C-8452 of 2005, G.R. No. 2198 of 2005, Shakespeare Sarani Police Station F.I.R. No. 2198 dated 21.9.2005 under Sections 454/380/34 of the Indian Penal Code. The relevant facts of the petitioners case may briefly be stated as follows : The opposite party No. 2, R.G. Sales (P) Limited, filed an application under Section 156(3) of the Code of Criminal Procedure praying for referring the said application to Police Authority for investigation after treating the same as F.I.R. Grievances of the complainant, as ventilated in the said application, may be capsulated in a few sentences as follows : The complainant is the Director of R.G. Sales Private Limited having its registered office at 6, Dr. U.N. Brahmachari Street, P.S. Shakespeare Sarani, Kolkata 700017. The complainant company is a tenant in respect of the said premises since sometime in the year 1962 under Boo Ali Wakf Estate, Kolkata. There was a dispute with regard to the mutwali after the demise of mutwali Farooque Hyder and the said dispute is still pending for adjudication before the High Court Calcutta. The complainant company filed a suit for declaration with a prayer for injunction impleading the said Wakf Estate as defendant and in response to the application for injunction, the learned Court directed the parties to maintain status quo with regard to the possession of the premises in question. The complainant allowed one Mr. Anil Kumar Mahansaria, an ex-director of the complainant company, to stay in the said premises as a caretaker. The complainant company used to run a restaurant in the said premises, but in view of an order of the Hon'ble Supreme Court, the company had to close down the restaurant though the entire assets of the restaurant, valued at Rs. 1 crore, is lying over there. Some people claiming to be mutwali in respect of the premises in question were creating various disturbances with the help of some local hooligans and anti-social elements. On 22.8.2005, when the order of status quo was in full force, one Mr. Deepak Kumar Singh along with his brother Mr. Sanjay Singh forcibly broke open the padlocks of the main entrance gate and took away various valuable articles including office computer, statutory books, books of accounts, utensils and other equipments and assets of the company besides personal belongings of Mr. Anil Kumar Mahansaria including gold chain, gold bracelet and cash about Rs. 25,000/-. Mr. Mahansaria's men, Upinder and Chowdhury, who tried to resist them by producing the order of status quo, were mercilessly beaten up. The said Mr. Deepak Singh and his brother, Sanjay Singh, with their men and agents started soil testing in the said premises for the purpose of illegal construction. This was being done in connivance and collusion with the mutwali. The complainant is still in possession of the premises. The said Upinder and Chowdhury informed the complainant about the incident from a STD booth. This incident was reported to the local police station on 26.8.2005, but no action was taken.
(2.) In response to such application, the learned C.M.M., Calcutta by order dated 1.9.2005 directed the Officer-in-Charge, Shakespeare Sarani Police Station, to investigate into the matter after treating the petition of complaint as First Information Report under Section 156(3) of the Code of Criminal Procedure. The accused persons in the said case, being petitioners herein, while seeking quashing of the proceeding claimed as follows : The petitioner No. 1 is a Director of M/s. City Enclave Private Limited having its office at 6. U.N. Brahmachari Street, P.S. Shakespeare Sarani, Kolkata 700017. M/s City Enclave Private Limited is a tenant of the entire first floor together with three servants' rooms at the rear side and two covered garages facing the road in the ground floor at premises No. 6, Brahmachari Street, Kolkata 700 017. The said company is a monthly tenant under Boo Ali Wakf Estate, represented by the joint Mutwallis, Syed Tahsin Huq and Arifur Rahman and had been paying the monthly rent regularly to the said Mutwallis, R.G. Sales (P) Limited, being O.P. No. 2, was the erstwhile tenant at the said premise for a period of more than 30 years. An Ejectment Suit was filed in the year 2000 by the landlord. One Mr. Anil Kumar @ Laddu Mahansaria, who was then in possession of the premises in question, approached the petitioners and expressed his willingness to deliver the vacant and peaceful possession of the entire tenanted premises and further assured that he would issue necessary letter of surrender in favour of the landlord of the premises to enable the petitioners to get the tenancy transferred in favour of the petitioners company. The O.P. No. 2 further passed a board resolution and resolved to appoint the petitioner as the constituent attorney of the company to look after and maintain the entire premises No. 6, U.N. Brahmachari Street, formerly Loudan Street, Kolkata 700 017. The petitioners were further empowered to deal with all the matters of tenancy for and on behalf of the O.P. No. 2. In pursuance to the said letter of authority, the vacant possession of the tenanted premises was delivered to the petitioners peacefully. The petitioners were using the premises for the requirement of the petitioners company. While in possession of the tenanted premises, some objections were raised by the landlord/mutwallis and a complaint was made to the office to the Board of Wakf. The Board by letters dated 4.12.2003 and 13.1.2004 served notice upon the petitioners asking them to handover the possession of the wakf property to the mutwallis of the wakf, estate. The petitioners filed an application under Article 226 of the Constitution being W.P. 326/2004 and orders were passed in the said case by the Hon'ble High Court. The petitioners also filed an application under Section 144(2) of the Code of Criminal Procedure being M.P. No. 432 of 2003 on 5.5.2003. A police report was filed in connection with the said proceeding and it revealed that the petitioner No. 1 had been in actual physical possession of the tenanted premises. The petitioners also purchased the furniture and fixtures of O.P. No. 2 for a total consideration of Rs. 10 lakhs and paid the said amount by cheque being No. 120826 dated 11.9.2004 drawn on I.D.B.I. Bank, Kolkata. The O.P. No. 2 surrendered the tenancy in respect of the tenanted premises i.e., joint mutwallis on or about 6.1.2005. The Ejectment Suit, which was filed against the O.P. No. 2, was subsequently withdrawn on the surrender of the tenancy in favour of the joint mutwallis. Thereafter, the petitioners' company, i.e., M/s. City Enclave Pvt. Ltd. was inducted as a monthly tenant in respect of the area as indicated earlier. The joint mutwallis executed a tenancy agreement on 7.1.2005. The petitioners had been in uninterrupted peaceful possession of the premises and had been paying rent against rent receipts, which were granted by the joint mutwallis in favour of the petitioners from time to time. On 21.8.2005, at about 3.00 p.m., about 20/25 persons being led by one, who introduced himself to be one Chakraborty, visited the tenanted premises and attempted to dispossess the petitioners men and representatives and plunder valuable furniture and articles stored therein. They were, however, effectively resisted. The petitioners lodged a written complaint to the local police station on the same date. Apprehending further retaliation, the petitioners filed an application under Section 144(2) of the Code of Criminal Procedure and the learned Magistrate by order dated 22.8.2005 directed the Officer-in- Charge, Shakespeare Sarani Police Station to enquire and repot., but the petitioners started receiving threatening and obnoxious calls over telephone. Some miscreants claiming to be agents of Mr. Anil Kumar @ Laddu Mahensaria continued to intimidate the petitioner. The petitioners informed the said incident to the local police station by letter dated 26.8.2005. At that time the petitioners came to know about filing of the application under Section 156(3) of the Code of Criminal Procedure by the present opposite party No. 2. The petition of complaint was filed on 1.9.2005 without offering any satisfactory explanation for the delay in filing of the same. The petitioners had all along been in possession of the disputed premises, and, as such, there could be no question of any threat or a lurking house trespass. The petitioners on the strength of the agreement dated 7.1.2005 had been in possession of the disputed premises and, as such, there could be no occasion for them for taking over forcible possession. The O.P. No. 2 also filed Title Suit being No. 855 of 2005 praying inter alia, that the O.P. No. 2 is the lawful tenant in respect of the premises in question and seeking other reliefs. The said suit is still pending before the learned 5th Bench of the City Civil Court, Calcutta. In the circumstances, the present application was filed with a prayer for quashing of the criminal proceeding being No. C 8452 of 2005 (G.R. No. 2198 of 2005).
(3.) Mr. Sekhar Bose, appearing as learned counsel for the petitioners, first invited attention of the Court to the fact that the date of alleged incident was mentioned as 22.8.2005, whereas the matter was first informed to the local police station on 26.8.2005 and the petition of complaint under Section 156(3) of the Code of Criminal Procedure was filed on 1.9.2005. He submitted that no satisfactory explanation for such delay was offered by or on behalf of the opposite party No. 2 herein. Mr. Bose then submitted that no document was annexed to the application under Section 156(3) of the Code of Criminal Procedure in order to prima facie establish that the opposite party No. 2 was the recorded tenant. According to Mr. Bose, the dispute between the parties is civil in nature and the opposite party No. 2 could file an application under Section 6 of the Specific Relief Act.;