N.C.TALUKDAR, J. - (1.) 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/ T. R. 141 of 1963 - -charging the accused -petitioner Kaviraj Basudevananda under Section 406 of the Indian Penal Code where to he pleaded not guilty and claimed to be tried and fixing two dates for evidence. 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 Section 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.
(3.) 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 21th 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, undoubledly, unusual but not illegal and he left the matter to the discretion of tile Court.;