MONOJ KUMAR MUKHERJEE, J. - (1.) UPON a complaint filed by the opposite party, Sk. Nausher Ali, the learned Sub -divisional Judicial Magistrate, Arambagh took cognizance of the offence under Section 395 read with Section 397 of the I.P.C. and decided to hold an enquiry under Section 202 of the Cr. P.C. Accordingly he called upon the complainant to produce all his witnesses as enjoined by the proviso to Sub -section (2) thereof. On being satisfied from the statements of the witnesses recorded therein, that there were sufficient grounds for proceeding, the learned Magistrate issued process against the 11 petitioners under Sections 395/397 of the I.P.C. All the accused persons appeared before the learned Magistrate and thereafter moved this Court and obtained the present. Rule for quashing the proceeding of the said case.
(2.) MR . Poddar, the learned Advocate appearing for the petitioners contended that the materials on record do not make out a prima facie case under Sections 395/ 397 of the I.P.C. and as such, the learned Magistrate was not justified in issuing process against them under the aforesaid section. To appreciate the contention of Mr. Poddar it will be necessary to refer to the material allegations made in the complaint and the depositions of the complainant and his witnesses in support thereof. In his complaint the opposite party has stated that on June 5, 1978 the petitioners formed an unlawful assembly along with some unknown others and trespassed into the land of the complainant, armed with various weapons. They then started removing the til crops which were cultivated by the complainant. On getting this information the complainant went to the land and protested when the accused persons threatened him saying that in case he attempted to enter into the land in future, he will be done to death. His further allegation is that the accused persons were frequently giving out that they would set fire to the house of the complainant and do other mischief. In his initial deposition the complainant stated that when he protested, the accused persons abused him in filthy language and chased him with lathis. Some of his witnesses, deposed to the effect that when the complainant protested, the accused abused him and threatened to kill him. In the context of the allegations made by the complainant and the statements of the witnesses examined on his behalf, the question that falls for determination is whether the materials on record make out a prima facie case under Sections 395/397 of the I.P.C.
(3.) FOR transformation of an offence of theft to one under robbery it has to satisfy the requirement of Section 390 of the I.P.C. 'Theft' is 'robbery' under the said section if, in order to the committing of the theft, or in committing the theft, or in carrying away or attempting to carry away property obtained by the theft, the offender, for that end, voluntarily causes or attempts to cause to any person death or hurt, or wrongful restraint, or fear of instant death or of instant hurt, or of instant wrongful restraint. When 'robbery' is committed by five or more persons, it answers to the definition of 'dacoity' under Section 391 of the I.P.C.;