IN THE HIGH COURT AT CALCUTTA CRIMINAL REVISIONAL JURISDICTION APPELLATE SIDE Present:- HON’BLE JUSTICE CHAITALI CHATTERJEE DAS CRR 1557 OF 2007 ABDUS SAFI @ BABAN & ORS. VS STATE OF WEST BENGAL & ANR. For the Petitioners : Mr. Samrat Chowdhury, Adv. Mr. Sk. Aktar Hossain, Adv. For the State/O.P. : Mr. Sandip Chakraborty, Adv. Last heard on : 16.07.2025 Judgement on : 01.09.2025 CHAITALI CHATTERJEE DAS, J. :- 1. This application under Section 401 read with Section 482 of the Code of Criminal Procedure filed by the accused persons/petitioners against an order dated March 7, 2007 passed by the Learned Judicial Magistrate, 4th Court, Howrah, in G.R. case no 2538 of 2005 under Section 504/506/379/34 of the Indian Penal Code whereby the petition under Section 239 of Criminal Procedure Code filed by the petitioner for discharge has been rejected during pendency of this revisional application. 2. The de-facto complainant /Opposite Party no 2 expired as per process information handed over and direction was given to the state to verify the authenticity of the said statement. Accordingly the report was submitted which was affirmed. The fact of the case was that a complaint lodged under Section 156 (3) of Criminal Procedure Code was filed by the Opposite Party no 2 since deceased alleging inter alia that he along with his brother being the co-sharer of a pond situated at Dag no 133, Khatian No 156, 60 and 49 of Mouza Haphezpur, of which the accused persons are also the co-sharer and they have snatched away the share of fish on 14th of August 2005 over which a complaint case no 861 of 2005 under Section 379 of Indian Penal Code was pending before the Court of 7th Judicial Magistrate at Howrah. 3. It was further alleged that the accused person again on 16.10.2005 through some fisherman collected the fish and on raising objection by the complainant and his brother they were threatened with dire consequences by using filthy languages for which a GD was lodged to the concerned police station. After that while returning back to the pond side came to learn from other co-sharer that the accused persons took away the share of fish of the complainant. 4. On the basis of the said complaint the case started under Section 504/506/379/34 of Indian Penal Code and the Investigation Officer on completion of investigation submitted the charge-sheet against all the accused except accused no 3 Mustafa. a student who was subsequently discharged. 5. Challenging the said proceeding the petitioner moved an application being CRR no 3911 of 2005 before this Court for quashing under Section 482 of Criminal Procedure Code and vide an Order dated 1st March, 2006 direction was given to the petitioner to produce all such documents such as record of rights etc. before the Investigating Authority and further directed that the Investigating Authority to take proper consideration with the liberty to approach the Hon’ble Court. Page 3 of 7 6. According to the Learned Advocate of the petitioner the dispute is purely civil in nature and the record of rights in connection with the pond in question is in the name of the present petitioner’s father and their uncle Abdus Salem and Abdul Sultan. 7. That apart the other complaint as was lodged on 14th of August, 2005 in respect of the self-same pond is pending before the 7th Court of Judicial Magistrate. It is submitted that the allegations made in the complaint do not disclose any element of alleged offence as most of the witnesses have narrated the date of occurrence which took place on 16th of August, 2005. 8. In this case a supplementary affidavit was submitted by the petitioners intimating that an order of acquittal has been passed in the complaint case no 861 of 2005 which was pending before the Court of Judicial Magistrate 7th Court at Howrah. In this case pursuant to the direction passed by a co- ordinate bench the state was directed to produce the case diary before this Court and to furnish a status report of the proceeding pending before the Court of Judicial Magistrate 4th Court at Howrah in G.R. case no 2538 of 2005 accordingly in compliance the copy of the case diary was placed before this Court. A copy of the order passed by the Learned Judicial Magistrate 4th Court Howrah dated 3rd of January, 2015 as submitted reveals the date was fixed for awaiting order from High Court and it is submitted on behalf of the petitioner that since thereafter nothing has happened in the said proceeding. 9. The Learned prosecution on the other hand submits that the disputed pond is a WAQF property and that has been confirmed by the order of the Court passed in complaint case no 861C of 2005 on 29.6.2012 and therefore question of attracting 379 would not lie. Before the learned Judicial Magistrate 7th court also the submission advanced on behalf of the present petitioner that the de-facto complainant has to prove first that he is the owner of the pond in question and unless the ownership of the pond is not exclusive possession case is not maintainable against the present petitioner. The prosecution opposed before the Court and after considering the submission the Learned Magistrate considered the police report and the document sent under Section 173, with the observation that the accused did not rely on any documentary evidence showing that the de-facto complainant has no claim over the disputed property and at the pre-trial stage there is a little scope for a thread bare analysis in a very meticulous under the micro scope. 10. The Learned Court discussed the decision report in 1in State of Orissa vs Debendranath Padhi where it was observed by the Supreme Court that “ it is well settled that at the stage of framing of charge defence of the accused cannot put forth. The acceptance of the contention of the Learned Counsel for the accused would mean permitting the accused to adduce his defence at this stage of framing of charge and for examination therefore of at that stage, which is against the criminal jurisprudence…..” 11. Therefore the Court observed that hardly any scope is there to put reliance to the discrepancies in the manner of recording statement of witness and also regarding the discrepancy as to the factum of theft and accordingly refused the prayer of the petitioner under Section 239 Cr.Pc. and accordingly date was fixed for framing of charge .After 20 years from the date of passing of the said order this Court is considering the revisional application for quashing of the proceeding against the present petitioner. There is no denial of the fact that 1 (2005) 1 C.Cr.L.R (SC) 487 while deciding an application under Section 239 Cr.Pc a mini trial cannot be held by the Court. It is seen from the entire record that another proceeding was pending in respect of the said pond before the Learned Court of 7th Court of Judicial Magistrate at Howrah and an order of acquittal has been passed in favour of the present petitioners. Whether the taking away of the fish from a pond will attract Section 379 IPC or not can come for consideration only when the ownership of the pond is ascertained. The Learned Court of 7th Judicial Magistrate while passing the order of acquittal observed that prima facie there appears to be property dispute in between the complainant and the accused as each one of their claiming their right at the place of occurrence and the said Court is not the appropriate forum to determine the said factor. Interestingly no civil dispute is pending between the parties and in respect of that particular pond other co-sharers are there. The Learned Court while passing the said order was of the view it was a joint property and is a WAQF property and admittedly 30 to 40 co-sharers are there in respect of that share. Therefore after the said order of acquittal has been passed with the above observation there remains nothing to attract Section 379 IPC and the present dispute being purely civil in nature Section 379 is is not maintainable. 12. In Naresh Kuamr and another V. State of Karnataka and another reported in 2where the Supreme Court took note of various other decisions of the Supreme Court whereby it was considered that while exercising the jurisdiction under Section 482 of the Code of the Criminal Procedure the High Court has to be cautious and the power is to be used sparingly and only for the purpose of preventing abuse of the process of any law or otherwise to 2 2024 INSC 196 secure ends of Justice. It was further observed that ‘a complaint disclosing civil transactions may also for criminal texture. But the High Court must see whether a dispute which is essentially of a civil nature is given a cloak of criminal offence. In such a situation, if a civil remedy is available and is, in fact, adopted as has happened in this case, the High Court should not hesitate to quash the criminal proceedings to prevent abuse of process of the Court as observed in the decision reported in Paramjet Batra v. State of Uttarakhand 3. The Hon’ble Supreme Court taking note of Usha Chakraborty and another v. State of West Bengal and another4 relying upon Paramjit Batra (supra) held that where a dispute which is essentially of a civil nature, is given a cloak of criminal offence then such disputes can be quashed, by exercising the inherent powers under Section 482 of the Code of Criminal Procedure. 13. In this case as discussed above that the case diary reveals the existence of other shareholder in respect of the disputed pond and the dispute pertains to snatching of the fish from the pond by the present petitioners who also claimed to be the shareholders and the record of right is in the name of the father of the petitioner and his uncle. Whether property is a waqf property or not is not the subject matter of this court but existence of a number of co- sharers are well founded which further discloses that the dispute is civil in nature and therefore catching of fish by a group of persons claiming to be the co-sharer cannot be said to be an offence within the purview of Section 379 of IPC or cannot be said to have any criminal intent unless the complainant proves his absolute ownership in respect of the said Pond. 3 2013 11 SCC 673 4 2023 SCC online SC 90 14. Therefore in the light of above discussion this Court is of the view that if the said proceeding is allowed to be continued it would be abuse in the process of law and share wastage of the valuable judicial hour. Accordingly this revisional application stands allowed. 15. The order dated 7.3.2007 passed by the Learned Judicial Magistrate ,4th Court at Howrah, in G.R. case No. 2538 of 2005 under Section 504/506/379/34 of the Indian Penal Code is hereby pending before the Learned Court is thereby quashed. 16. No order as to costs. 17. Urgent certified copy if applied by any of the parties to be supplied subject to observance of all formalities. (CHAITALI CHATTERJEE DAS, J.)