Nagendra Nath Sinha And Others v. Emperor Opposite Party.

1. This is a Rule issued at the instance of two petitioners, No. 1 Raja Nagendra Nath Sinha Sahas Roy and No. 2 Nagendra Nath Das calling upon the District Magistrate of Midnapur to show cause why certain proceedings complained of in the petition, on which this Rule has been issued, should not be quashed or why such other or further order should not be made as to this Court may seem fit and proper.

2. The facts necessary to be stated for the purposes of this Rule are the following. Petitioner 1 is the proprietor of a jungle which he alleges is in his khas possession, and petitioner 2 is a forest guard in the employ of petitioner 1. A complaint was lodged on behalf of petitioner 1 against one Baikuntha Nath Ghose and others as accused persona alleging that they were in possession of certain stolen properties, to wit, certain logs of wood, the allegation being that they had been taken away by theft from a portion of the jungle in the khas possession of petitioner 1.

3. The case was tried by a Second Class Magistrate, who acquitted the accused holding that the prosecution had failed to prove beyond reasonable doubt that the trees in question had been cut from the plot which was alleged to be in the khas possession of the complainant, i.e, petitioner 1. At the same time, the Magistrate ordered the alleged stolen logs to be returned to petitioner 1. This order was made on 5th June 1933. The accused Baikuntha Nath Ghose and others preferred an appeal under Section 520 of the Cr PC, on 7th June 1933; and the Additional District Magistrate of Midnapur on the same day admitted the appeal, called for the records, directed issue of notice on the complainant and fixed 22nd June 1933 for the hearing of the appeal. At the same time, the learned Additional District Magistrate made an order staying the restoration of the properties to the complainant, i.e, petitioner 1, pending disposal of the appeal. It now appears that on account of some mistake in the office of the learned Additional District Magistrate, the order staying the restoration of the properties was not communicated to the trial Magistrate.

4. It is not necessary to refer to the orders that were thereafter passed from time to time by the latter, but it will be sufficient to state that eventually, on 5th July 1933, a notice issued by a Police Officer of Binpur Police Station was received by some officer of petitioner 1 whereby the said petitioner was called upon to take delivery of the trees and it was also stated in that notice that if the said petitioner failed to take delivery within three days of the said notice the same would be sold by public auction and the sale proceeds would be forfeited to Government. The notice also said that it purported to be issued in pursuance of the order which the trial Magistrate, had made. On receipt of the aforesaid notice, on 7th July 1933, petitioner 2 took delivery of the logs from the President Panchayat in whose charge the said logs had been up to that time. The fact that the properties had thus been taken away by petitioner 2 on behalf of petitioner 1 was not brought to the notice of the Additional District Magistrate when he heard the appeal under Section 520 of the Cr PC. This the learned Magistrate did on 11th July 1933. On that day the learned Additional District Magistrate holding that the proper order to make in the circumstances of the case was to return the logs to the persons with whom they had been found, allowed the appeal, set aside the order of the trial Magistrate and directed that the logs in question should be returned to the aforesaid Baikuntha Nath Ghose and others. On these facts, the Additional District Magistrate, on 20th September 1933, directed the prosecution of the two petitioners for an offence under S. 403, I.P.C He purported to take cognizance of the offence under Section 190, Clause (1), sub-Clause (c) of the Code. It is against this order of the Additional District Magistrate that the present Rule is directed.

5. It appears that the proceedings have been taken as aforesaid by the learned Additional District Magistrate upon the view that although on 11th July 1933 the properties were ordered to be restored to Baikuntha Nath Ghose and others by the order which the learned Magistrate made in the appeal on that date, that order became in fructuous because the two petitioners had taken delivery of the properties in pursuance of the notice which they had obtained from the police though they knew full well that a stay order had been made by the said learned Magistrate on 7th June 1933, prohibiting such delivery and that after taking delivery the properties had already been converted by the said petitioners to their own use. The learned Magistrate in the order which he made taking cognizance of the offence has expressly stated that “the petitioners must have acted dishonestly in taking delivery of the properties from the police on 7th July 1933 and converting them to their own use.”

6. In the explanation which the learned Magistrate has submitted in answer to this Rule he has emphasized the position that the fact that the stay order had been issued by him was known to the pleaders who were appearing in the case on behalf of the petitioners in his Court and he has further said that from such knowledge on the part of the pleaders, knowledge of the petitioners should be presumed. He has observed thus:

“The applicants knew of the stay order as early as 22nd June 1983 if not earlier and (that) in spite of such knowledge they afterwards disposed of the property in such a way as to make it impossible of being returned to the other party if the Additional District Magistrate would order such return.”

7. According to the learned Additional District Magistrate therefore the offence was committed before the order for return of the logs was made by him and consisted in this that inspite of the stay order and with knowledge thereof the petitioners had taken the logs and disposed of them. This, in our judgment, was not sufficient for constituting an offence of criminal misappropriation. Even though they may have been aware of the stay order there was the notice issued by the police, which in distinct terms called upon them to take delivery of the logs and threatened them with a forfeiture in case no delivery was taken. They were thus clearly justified in taking delivery of the logs. If after doing so they disposed of them, although they may have known that the question, as to whom they should be given, was pending consideration in appeal they can not be held guilty of criminal misappropriation. To found a case under S. 403, I.P.C it would be necessary to allege something more, and indeed Mr. Mukherjee who has appeared on behalf of Baikuntha Nath Ghose and others has himself seen the point. He has therefore placed considerable reliance upon a statement which is to be found in an affidavit which has been filed on behalf of his clients and which is to the effect that the properties were disposed of by the petitioners or converted by them to their own use after the Additional District Magistrate had made his order on 11th July 1933. This statement has been made in an affidavit the deponent whereof has stated that it is true to his information obtained on an inquiry which he held. He has not given the particulars of the inquiry or the source of his information. We express no opinion on the question whether a prosecution under S. 403, I.P.C would or would not be justified upon an allegation that even with knowledge of the order passed by the Additional District Magistrate on 11th July 1933 the petitioners converted the properties to their own use, because this does not seem to us to be the ground upon which the Additional District Magistrate has proceeded. His order appears to us to, be based on the fact that with knowledge of the stay order the properties had been taken delivery of by the petitioners and disposed of or converted in a manner which would make it impossible to restore them to others if an order to that effect was eventually passed. We are of opinion therefore that upon the materials on which the learned Additional District Magistrate has proceeded, such a prosecution would not be justified and cannot be allowed to proceed.

8. We accordingly make the rule absolute and quash the proceedings under S. 403, I.P.C against the two petitioners which have been started by the Additional District Magistrate under Section 190, Clause (1), sub-Clause (c) of the Cr PC. No. 1186 of 1933. In this case the aforesaid Baikuntha Nath Ghose and others have obtained a rule to show cause why the order made by the Additional District Magistrate on their application of 20th September 1933 should not be set aside and why the opposite parties, namely, the two petitioners in Revision Case No. 1051 of 1933 just disposed of should not be directed to bring into Court the value of logs for payment to the petitioners or why such other order or orders should not be made as to this Court may appear fit and proper. The order of the learned Additional District Magistrate which is complained of in this case runs in these words:

“The property ordered to be restored to Baikuntha Nath Ghose and others by the Additional District Magistrate on 11th July 1983 has already been converted to their own use by Nagendra Nath Sinha Sahas Boy and Nagendra Nath Das. No further action can be taken with regard to the property in a criminal Court. Baikuntha Nath Ghose and others should seek relief in civil Court about the matter.”

9. In support of this rule Mr. Mukerjee has contended that the criminal Court is not powerless in circumstances such as these to give an aggrieved party the remedy which he stands in need of. He has drawn our attention to the decision of the Special Bench of this Court in the case of Piggot v. Ali Muhammad Mandal . AIR 1921 Cal 30 and to the terms of Section 517 of the Cr PC as amended in 1923 and has argued that even though some of the logs have been used, up and the rest sold to others it is open to the criminal Court to compel the opposite parties to produce such properties as may be capable of production and also to produce the money equivalent of such properties as may be incapable of production. Without disputing for a moment the power which a criminal Court has got in this respect we think it will be highly inconvenient on the part of the Court now to launch upon an inquiry as to what happened to the logs, how much has been used up by the opposite parties in constructing their buildings and how much has been sold away and for what price. If it was possible from the record, as it is, to get any idea as to the value of the logs actually fetched at their sale or if any specific amount of money could be seized as representing such sale proceeds, such an order could, with propriety, be made by the Court. It has been pointed out to us that in a certain petition which the opposite parties made, they stated that the value of the logs would be Rs. 300 or so. Upon such a statement as that and without knowing what amount, if any, was actually fetched at the sale it would not be possible for the Court to make any order in petitioners' favour. If an inquiry is to be launched upon in order to ascertain the necessary particulars, there is every likelihood of such an inquiry to be not productive of any satisfactory result. We think the order which the learned Additional District Magistrate has made, advising the petitioners Baikuntha Nath Ghose and others to seek, relief in the civil Court, is the proper order to make in the circumstances of the case. Rule is discharged.

R.K

10. Rule discharged.