JUDGMENT [ENTITY], J.
1. By the instant revisional application under [SECTION] of the [ACT] (hereinafter referred to as Code); the petitioners-accused have prayed the Court for quashing the relevant proceedings, being [CASE NUMBER] before the learned Metropolitan Magistrate, 12th Court, Calcutta, on the grounds set forth therein.
2. On 23.7.86 the opposite party No. 1-complainant had filed a petition of complaint before the learned Additional Chief Metropolitan Magistrate, Calcutta, against the four petitioners-accused and another under [SECTION], [SECTION] and [SECTION], [ACT], on the allegations made therein. It had been contended, inter alia, therein that he (complainant) is the acting Managing Mutwali of Imambara and Trust Estate at 10, Portugese Church Street, Calcutta-700 001, which is an exclusive Wakf property, now under the direct control of this Hon'ble Court and a Special Officer has also been appointed to look after the affairs of the said Trust. On 21.7.86, when the complainant was away from the aforesaid premises the "accused" had come to the spot at 11.30 A.M. with apparatus and had broken upen the shutters which were fixed in front of two shops within the Imambara premises, The "accused " had dismantled the said shutters and had taken away the same in presence of the local people without talking to any authority of the Estate. The "accused" by "misusing their own respective power" had exercised the same in a detrimental way, and is liable to be punished in accordance with law. The learned Additional Chief Metropolitan Magistrate, upon perusal of the complaint and upon examination of the complainant and two other witnesses and the materials on record was of opinion that there was sufficient ground for proceedings against the accused persons under [SECTION], [ACT] only, and had accordingly directed issue of summons against them all by his order dated 23.7.86. A petition appears to have been subsequently filed on behalf of the accused on 2.2.88 praying for their discharge on the grounds made out therein, which was also rejected by the learned Magistrate, to whom the case was assigned by order dated 21.6.88. The four petitioners-accused have thereupon moved this Court in Revision under [SECTION] of the Code for quashing the relevant proceedings mainly on the ground that the principal ingredient of an offence punishable under [SECTION], [ACT] have not been made out in the absence of any whisper about dishonest intention on the part of the petitioners-accused as also intention to cause wrongful gain to themselves. It had further been contended by them that the criminal prosecution has been instituted by the complainant maliciously for wreaking vengeance on the accused and to stall the action taken by them for stopping unauthorised construction at premises No. 10, Portugese Church Street, and unauthorised and illegal construction at Karbala Mohammad Lane on the back portion of the aforesaid premises, as stated at length in the relevant application. It is further contended by the petitioners-accused that the opposite party No. 1-complainant, in gross abuse of the process of criminal court has been continuing encroachment on Karbala Mohammad Lane with impunity in gross violation of law by putting the petitioners, who are public servants, acting according to law, on the dock for an alleged offence punishable under [SECTION], [ACT]
3. As already indicated above, process had been issued by the learned Magistrate by his relevant order dated 23.7.86 under [SECTION], [ACT] against all the four petitioners-accused herein and another for having allegedly committed an offence of theft punishable thereunder on the basis of the complaint filed by the opposite party No. 1-complainant, "Theft" has been defined in [SECTION] of the [ACT] as follows:-
"Whoever intending to take dishonestly any movable property out of the possession of any person without that person's consent, moves that property in order to such taking, is said to commit theft."
4. With the aforesaid definition of the offence of "theft," as it is, "dishonest intention" is one of the principal ingredients for such an offence. The question of wrongful gain to one and wrongful loss to another is also required to be taken into consideration while dealing with such an alleged offence. Unhappily for the complainant, there is not the merest and faintest whisper within the four corners of the petition of complaint that the accused-petitioners had taken away the shutters in question with any "dishonest intention." Per contra, the complainant had himself sadly sought to contend in paragraph 7 of the petition of complaint that the articles in question had been allegedly taken away by the "accused" by "misusing their own respective power." The complainant and the two witnesses examined by him under [SECTION] of the Code, P.W. 2 [ENTITY] and P.W. 3 [ENTITY] did neither whisper about any such "dishonest intention" on the part of the accused concerned during their evidence. The alleged misuse of power, occurring in paragraph 7 of the petition of complaint, would clearly exclude the element of "dishonest intention" on the part of the accused concerned. There being no allegation of "dishonest intention" on the part of the petitioners-accused in the petition of complaint or in the statements of the complainant and his aforesaid two witnesses, while examined under [SECTION] of the Code, the allegations made by the complainant do not prima facie seem to make out an offence punishable under [SECTION], [ACT], against any of the petitioners-accused.
5. It would again seem significant and observable to note that the complainant has alleged in paragraph 7 of the complaint that the "accused" had come to the spot on 21.7.86 at 11.30 A.M., broke open the shutters, and had taken the same away. The complaint, as it is, does not indicate which accused had broken open the shutters and had taken away the same, as alleged. The petitioner No. 1-accused, [ENTITY], appears to be the Conservancy Officer, the petitioner No. 2-accused, [ENTITY], appears to be the District Conservancy Officer, petitioner No. 3-accused, [ENTITY], appears to be the Deputy City Architect, and the petitioner No. 4-accused, [ENTITY] appears to be a member of the Staff of the Calcutta Municipal Corporation. It would seem so unlikely as to be scarcely credible, and it is beyond belief that persons of such-like standing and position could have taken active part in breaking open the shutters in question and taking away the same, as alleged.
6. It would further appear from the materials on record as also from the Statement of the complainant, while examined under [SECTION] of the Code on 23.7.86, that the shutters (four channels of Rolling Shutters) removed had been kept in the custody of the Calcutta Municipal Corporation at their Brabourne Road Fly Over Office. That being so, no wrongful personal gain could conceivably have been intended by any of the petitioners-accused by removal of the -same, as alleged. Upon the discussions above, the materials placed before the learned Magistrate do not prima facie seem to make out an offence punishable under [SECTION], [ACT], against the petitioners-accused. As indicated above, the allegations made in the complaint that the petitioners-accused had themselves broken open the shutters in question and bad taken away the same seem to be so absurd and inherently improbable for the reasons discussed above on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against them. And in view of the illustrations given in the decision of the Supreme Court in the [PRECEDENT], the High Court would be justified in exercising its inherent power under [SECTION] of the Code to quash proceedings in such a case to prevent abuse of the process of court or otherwise to secure the ends of justice.
7. Apart from the materials presented before the learned Magistrate, the materials on record as also the relevant official papers shown during the hearing, xerox copies of which had been filed with copies to the other side, which could very well be translated into relevant piece of evidence and may thus be taken into consideration by this Court while considering the question of quashing the instant proceedings under [SECTION] of the Code would clearly seem to indicate that the Building Development of the Calcutta Municipal Corporation had detected an unauthorised construction at the premises No. 10, Portugese Church Street, Calcutta, on 16.7.86, and a notice under [SECTION] of the [ACT] (hereinafter shortened into Act) had been sevred on that date with directions to stop all constructions, including additions and alterations at the said premises. The Annexure 'A' to the instant application would seem to bear out the said contention. The Annexure 'B' would further indicate that a letter dated 17.7.86 was addressed by the Calcutta Municipal Corporation to the Officer-in-Charge, Barabazar Police Station, requesting for follow up action to the aforesaid notice for prevention of unauthorised construction at the said premises. The official papers shown would further indicate that Sri [ENTITY], a Local Councillor, had informed the petitioner No. 2 over phone and toy letter dated 18.7.86 that complaints had been received from the inhabitants of the locality that an unauthorised and illegal construction was going on at Karbala Mohammad Lane, Calcutta-7, on the back portion of premises No. 10, Portugese Church Street, Calcutta. On inspection made at the site on 19.7,86, it was found by the Officers of the Corporation that the opposite party No. 1-complainant was not only making unauthorised construction but was also causing encroachment on the Corporation road by fixing up four channels of Rolling Shutters on the kerb channel of the Karbala Mohammad Lane, being the road on the backside of premises No. 10, Portugese Church Street, in violation of the provisions of the aforesaid Act. The Corporation authorities had thereupon directed the said obstruction to be removed. And by virtue of the powers conferred under [SECTION] of the aforesaid Act, the Officers of the Corporation, in bona fide exercise of such powers, had removed the said illegal encroachment on Karbala Mohammad Lane, and had removed the said four channels of Rolling Shutters, which had been illegaly fixed causing encroachment on the said road, and the same was kept in the custody of the Corporation at their Brabourne Road Fly Over Office. It is submitted on behalf of the petitioners-accused that the aforesaid articles had been removed in terms of [SECTION] and [SECTION] of the aforesaid Act. The owner/s thereof was/were entitle to take back the same in terms of [SECTION] of the said Act. No wrongful loss could conceivably have been occasioned to him as such. It would be pertinent to note in this context that the complainant had alleged in paragraph 7 of the complaint that the articles in question had been removed' by the accused "by misusing their respective power". But in view of the materials on record and the official papers shown to me the petitioners' contention that they had removed the same in bona fide exercise of their powers under [SECTION] and [SECTION] of the relevant Act cannot be discarded. The act of the removal of the articles in question by the Officers of the Calcutta Municipal Corporation, in the facts and circumstances indicated above could neither be deemed to be an offence in view of the provisions of [SECTION] and [SECTION] of the [ACT]. The petitioners' contention that the prosecution has been instituted by the opposite party No. 1-complainant for wreaking vengeance on the accused and to stall the action already taken by them could neither be lightly overruled in view of the facts and circumstances dis- closed herein. And in view of the illustrations given in the decision of the Supreme Court in the [PRECEDENT], the High Court can exercise its inherent powers under [SECTION] of the Code by quashing a proceeding where a criminal proceeding is attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private or personal grudge. As held by the Supreme Court in the decision in [PRECEDENT]., , the legal position is well settled that when a prosecution at the initial stage is asked to be quashed, the test to be applied by the court is as to whether the uncontroverted allegation as made prima facie establish the offence. It is also for the court to take into consideration any special features which appear in a particular case to consider whether it is expedient and in the interest of justice to permit a prosecution to continue. This is so on the basis that the court cannot be utilised for any oblique purpose and where in the opinion of the court chances of an ultimate conviction are bleak and, therefore, no useful purpose is likely to be served by allowing a criminal prosecution to continue, the court may while taking into consideration the special facts of a case also quash the proceedings even though it may be at a preliminary stage. In view of the facts and circumstances and the special features indicated above the relevant proceedings is clearly liable to be quashed.
8. The petitioners have contended that the four channels of Rolling Shutters removed by them had been seized by the police and returned back to the opposite party No. 1-complainant on his prayer by the orders of the learned Magistrate and he (opposite party No. 1) had again fixed the same causing encrochment on the Corporation Road at Karbala Mohammad Lane on the back portion of premises No. 10, Portugese Church Street. He is continuing with such encroachment with impunity in violation of law in gross abuse of the process of the criminal court. Should it really be so, the appropriate authority of the Calcutta Municipal Corporation should be at liberty to take action thereagainst according to law. It would be pertinent to recall in this context the observation of the Supreme Court of India in the case of [PRECEDENT], , that footpaths or pavements are public properties which are intended to serve the convenience of the general public. If a person puts any public property to use for which it is not intended and is not authorised so to use it, he becomes a trespasser. Public streets, of which pavement forms a part, are primarily dedicated for the purpose of passage, and even the pedestrian have the limited right of using pavement for the purpose of passing and repassing. The Corporation is thus under an obligation to remove obstructions upon public streets. On the analogy of the aforesaid decision, the obligatory duty of the Calcutta Municipal Corporation under [SECTION] and [SECTION] of the [ACT] would extend to removal of the alleged obstruction/encroachment allegedly caused by the opposite party No. 1-complainant on the Corporation Road/Footpath at Karbala Mohammad Lane on the back portion of premises No. 10, Portugese Church Street, Calcutta.
In view of the discussions above, the instant revisional application succeeds. The relevant proceedings, being [CASE NUMBER] before the learned Magistrate concerned, against all the five accused persons, including the four petitioners-accused herein, be quashed.