Satyajit Ray

IN THE
LEARNED COURT OF SESSIONS OF WEST BENGAL

AT CALCUTTA
(ORIGINAL JURISDICTION UNDER S 9 AND S 167 OF THE CODE OF CRIMINAL PROCEDURE, 1973)
CRIMINAL APPEAL NO: /2010

IN THE MATTER OF:

STATE OF WEST BENGAL...........................................................................PROSECUTION
Versus

UDAY ACHARYA............................................................................RESPONDENT

- MEMORIAL ON BEHALF OF -
PROSECUTION
State of West Bengal v. Uday Acharya
MEMORIAL ON BEHALF OF THE PROSECUTION
-DRAWN AND FILED BY THE COUNSEL FOR THE PROSECUTION -

ii
TABLE OF CONTENTS

S. No. Particulars Page No.

1. Index of Authorities Iii
2. Statement of Facts vi
3. Statement of Jurisdiction vii
4. Issues for Consideration viii
5. Summary of Arguments ix
6. Written Submissions 1
7. Prayer for Relief 12


iii
INDEX OF AUTHORITIES

ACTS AND RULES:
The Constitution of India
The Criminal Procedure Code, 1973
The Indian Penal Code, 1860,

BOOKS:
John D Mayne, The Criminal Law of India (Higginbotham, Madras, 1896, 4
th
edition,
pp 646-57) (p. 8)
JRD Tata v. Payal Kumar, (1987) CrLJ 447 (p. 9)
R Gopal, Sohonis Code of Criminal Procedure 1973 (Butterworths, Nineteenth
Edition, 2001, p. 562) (p. 4, 5)
Ratanlal Ranchhoddas and Dhirajlal Keshavlal Thakore, The Code of Criminal
Procedure, (LexisNexis Butterworths Wadhwa Nagpur, New Delhi, Sixteenth
Edition, 2002 (p. 1, 2)
Ratanlal Ranchhoddas and Dhirajlal Keshavlal Thakore, The Indian Penal Code,
(LexisNexis Butterworths Wadhwa Nagpur, New Delhi, thirteenth edition, 2008 (p. 6)

CASES:

Bhagiram Dome v. Abar Dome, (1888) ILR 15 Cal 388 (p. 7)
Bimal Kanti Ghosh v. Chandrasekhar Rao, 1986 Cri LJ 689 (Ori HC) (p. 1)
Bimal Kanti v. M. Chandrashekhar, 1986 Cr LJ 689 (Ori) (p. 2)
Clarke v. Brojendra Kishor Roy Chowdhary, (1912) 39 IA 163 (p. 2)

iv
Emperor v. Sada, 11 Cr LJ 99 (p. 4)
Jaikrishnadas Manohardas Desai v. State of Bombay, AIR 1960 SC 889 (p. 10)
Kailash Kumar Sanwatia v. State of Bihar, (2003) 7 SCC 399 (p. 9)
Kasturi Lal Kalia Ram v. State of Uttar Pradesh, AIR 1965 SC 1039 (p. 4)
Krishan Kumar v. Union of India, AIR 1959 SC 1390 (p. 10)
Kundanlal v. State of Maharashtra, 2001(5)BomCR891 (p. 10)
M.P. Sharma v. Satish Chandra, 1954 Cr LJ 865, 872 (SC) (p. 3, 4)
Makhulshsh, (1886) 1 Weir 470 (p. 6)
Manicklal v. State, AIR 1953 Cal 341 (p. 1)
Manoranjan Tripathy v. Ganesh Prasad Singh, (1994) Cr LJ 204 (Ori) (p. 9)
Melicio Fernandes v. Mohan Nair, AIR 1966 Goa 23
Melico Fernandes v. Mohan, AIR 1966 Goa 23 (p. 1)
Mul Chand v. Emperor, 12 Cr LJ 175 (p. 2, 3)
Narendra Bhimabhai Patel v. State of Gujarat, (1985) 1 Cr LJ 121 (Guj) (p. 4)
Phul Chand Dube, (1929) 52 All 200 (p. 6, 7)
Phuman v. R, (1908) 8 Cr LJ 250 (p. 7)
Prakasam v. State of Travancore & Cochin, AIR 1953 Tr&Coch 537 (p. 7)
Queen Empress v. Mahant Triupati, 13 M 181 (p. 3)
Ram Dayal, (1886) PR No. 24 of 1886 (p. 7)
State of Himachal Pradesh v. Ritu Raj, (1992) 1 Crimes 311 (HP) (p. 9)
State of Madhya Pradesh v. Pramode Mategaonkar, (1965) 2 Cr LJ 562 (MP) (p. 7)
State of Madhya Pradesh v. Pramode Mategaonkar, (1965) 2 CrLJ 562 (MP) (p. 9)
State of Rajasthan v. PC Goswami, (1988) 1 Cr LC 606 (p. 4)
Subhash Chandra Babu v. Suresh Kumar, 2001 (2) KLT 370 (474)

v
Surendra Prasad Verma v. State of Bihar, AIR 1973 SC 488 (p. 10)
Surinder Lal Ohari v. Raj Paul Gulati, 1985 Cr LT 109 (P & H) (p. 4)
SW Palanitkar v. State of Bihar (2002) SCC 129 (Cri) (p. 9)
V.S. Kuttan Pillai v. Ranakrishnan, AIR 1966 Goa 23 (p. 2, 3)


vi
STATEMENT OF FACTS
-I-
Nirmal Acharya, a close friend of Satyajit Ray and a critic was dealing with critical
acclamation of Rays work from all over the world.
-II-
He wished to write a biography of Satyajit Rays life and for this purpose was given
manuscripts, photographs, scripts, illustrations, and drawings of Satyajit Ray which acted as
the foundations for epic creations such as Pather Panchali, Ganashatru, Sonar Kella, etc. in
good faith.
-III-
The Government of West Bengal wanted to procure the original works of Satyajit Ray from
Uday Acharya, the brother of Nirmal Acharya, to retain them in an archive in Nandan,
considering them as national property and was backed by Sandip Ray, the son of Satyajit Ray
and Vijaya Ray, the wife of Satyajit Ray.
-IV-
Uday Acharya said that the documents could not be handed over as they could not be traced.
A search warrant was prayed before the Learned CMM and obtained. The Police conducted
the search accordingly and a substantial portion of documents were seized.

Hence the present suit


vii
STATEMENT OF JURISDICTION

The Counsel for the Prosecution humbly submits that this Learned Sessions Court at Kolkata
has the appropriate jurisdiction to entertain and hear this petition according to Section 9 and
Section 167 of The Code of Criminal Procedure, 1973.

All of which is urged in detail in the written submission and is submitted most respectfully


viii
ISSUES FOR CONSIDERATION

Issue 1: Whether the Magistrates action in issuing search warrant and the subsequent seizure
by the police under Code of Criminal Procedure is justified?
Issue 2: Whether the Respondent is guilty of dishonest misappropriation of property u/s 403
of the Indian Penal Code, 1860?
Issue 3: Whether the Respondent is guilty of criminal breach of trust u/s 405 of the Indian
Penal Code, 1860?


ix
SUMMARY OF ARGUMENTS

Issue 1: The Magistrates action in issuing search warrant and the subsequent seizure
by the police under Code of Criminal Procedure is justified.
All the requisites for the application of Section 93(1)(a) are present in the matter.
The Respondent refused to return the manuscripts, photographs, scripts,
illustrations, drawings of Satyajit Ray when the State Government approached
him for the same and hence there was reason to believe that he would not produce
the same. The things in question are not known to be in anyones possession. A
general search is necessary to recover this property which the state and the family
of the deceased want to be a part of national property.
Warrant and seizure are judicial functions of the Magistrate and there is no
violation of Article 19(f) or Article 20(3) of the Constitution.
Article 102(1) gives police men powers to seize property that is alleged or
suspected to have been stolen; or found under circumstances as to create a
suspicion of the commission of any offence. In pursuance of this Article the police
man sent a report of seizure to the Magistrate.

Issue 2: The Respondent is guilty of criminal misappropriation of property u/s 403 of
the Indian Penal Code, 1860.
The Respondent has committed the offence of criminal misappropriation of
Satyajit Rays property as provided under Section 403 of the Code of Criminal
Procedure, 1973. The property should be national property but the Respondent
refused to return it when asked.


x
Issue 3: The Respondent is guilty of criminal breach of trust u/s 405 of the Indian Penal
Code, 1860.
The Respondent is liable for criminal breach of as trust provided under Section
405. It embraces all cases in which a thing handed over by one person to another
for specific purpose.
After the death of Nirmal Acharya, the Respondent has no right to hold the
property which belongs to Satyajit Ray and it is duty to return it to the government
of West Bengal, when asked for it.


1

WRITTEN SUBMISSIONS

Issue 1: Whether the search has been legally conducted?

1.1 The search was conducted as per the provisions of Section 93 of the Code of Criminal
Procedure, 1973. According to Section 93(1)(a) a search warrant may be issued where a
court has reason to believe that a person to whom a summons or order under Section 91
has been addressed will not produce the document or thing as required by such summons.
The words reason to believe in this clause would be constructed to mean as sufficient
cause to believe positively
1
, in other words, the Magistrate or Court must himself or
itself be satisfied that there is necessity for the search-warrant to be issued otherwise the
thing would not be produced.
2

This section contemplates the production of some specified or distinct thing or object,
which may be deemed essential to the conduct of any inquiry, and to the conviction of the
accused person. It provides for an efficacious procedure for the production of a document
or a thing, when the summons to produce it has failed or in other cases.
3

A search warrant in this section can be issued only in three cases:
(1) Where the Court has reason to believe that the person summoned to produce a
document or thing will not produce it;
(2) Where the document or thing is not known to be in the possession of any person;

1
Melico Fernandes v. Mohan, AIR 1966 Goa 23; Bimal Kanti Ghosh v. Chandrasekhar Rao, 1986 Cri LJ 689
(Ori HC)
2
Manicklal v. State, AIR 1953 Cal 341
3
Ratanlal Ranchhoddas and Dhirajlal Keshavlal Thakore, The Code of Criminal Procedure, (LexisNexis
Butterworths Wadhwa Nagpur, New Delhi, Sixteenth Edition, 2002, p. 134)

2
(3) Where a general inspection or search is necessary.
4

That a person will not produce the document on summons under s. 91 is the condition
precedent for issuing a search warrant.
5

All the aforesaid requisites are present in the matter. The Respondent refused to return
the manuscripts, photographs, scripts, illustrations, drawings of Satyajit Ray when the
State Government approached him for the same and hence there was reason to believe
that he would not produce the same. The things in question are not known to be in
anyones possession. A general search is necessary to recover this property which the
state and the family of the deceased want to be a part of national property.
Section 93(1)(a) of the Criminal Procedure Code, 1973 comprehends a situation where a
search warrant may be issued to procure a document or thing not known to the
Court to be in possession of any person. In other words, a general search warrant may
be issued to procure the document or thing and it can be recovered from any person who
may be ultimately found in possession of it and it was not known to the Court that the
person from whose possession it was found was in possession of it.
6

1.2 The section applied not only when there is an enquiry pending, but also when an inquiry
is about to be made.
7
A search warrant under this section can be issued before any
proceedings are initiated.
8

1.3 The search warrant may be general or restricted in its scope as to any place or part
thereof.
9

4
Supra p. 135
5
Bimal Kanti v. M. Chandrashekhar, 1986 Cr LJ 689 (Ori)
6
V.S. Kuttan Pillai v. Ranakrishnan, AIR 1966 Goa 23
7
Clarke v. Brojendra Kishor Roy Chowdhary, (1912) 39 IA 163
8
Mul Chand v. Emperor, 12 Cr LJ 175
9
Supra 3

3
1.4 It is lawful for a magistrate to issue a search warrant when he considers the production of
anything necessary for the purpose of any inquiry under the Code. It is not incumbent
upon him to wait until the evidence for prosecution has been recorded in the
presence of the accused. He is entitled to act upon information that he considers
credible, provided it is based upon a complaint and the complainant is examined upon
solemn affirmation according to law.
10

1.5 The section does not provide that before search warrant is issued, notice should be given
to the persons complained against. A search warrant will not, therefore, be invalid
merely because it was issued ex parte without any notice to the person concerned.
11

1.6 Search of premises occupied by the accused does not amount to a compulsion on him to
give evidence against himself and, therefore, is not violative of Article 20(3) of the
Constitution.
12
A passive submission to search cannot be styled as a compulsion on the
accused, to submit to search, and if anything is recovered during such search which may
provide incriminating evidence against the accused, it cannot be styled as a compelled
testimony and is not violative of Article 20(3) of the Constitution of India.
13

Issue of search warrant is normally the judicial function of the Magistrate. When such
judicial function is interposed between the individual and the officers authority for
search, no circumvention thereby of the fundamental right is to be assumed. There is thus
no question of violation of Article 19(f) or Article 20(3) ouf the Constitution.
14

10
Queen Empress v. Mahant Triupati, 13 M 181, Mul Chand v. Emperor (supra 8)
11
Melicio Fernandes v. Mohan Nair, AIR 1966 Goa 23
12
Subhash Chandra Babu v. Suresh Kumar, 2001 (2) KLT 370 (474)
13
V.S. Kuttan Pillai v. Ramakrishna, Supra 6
14
M.P. Sharma v. Satish Chandra, 1954 Cr LJ 865, 872 (SC)

4
1.7 A search and seizure is only a temporary interference with the right to hold the premises
searched and the articles seized. Statutory regulation in this behalf is a necessary and
reasonable restriction and cannot per say be said to be unconstitutional.
15

Having regard to the language of Form 10, Schedule II, which authorises the search
for and production of the thing required, the power to take possession is inherent in
all the cases of the issue of a search warrant.
16

Power to search a place includes the power to inspect and to seize the documents
necessary or desirable for the purpose of investigation, inquiry or trial or other
proceeding. The search warrant was held to be an order as it helped the cause of justice
and had not been issued to help police investigation.
17

1.8 Further, the seizure complies with Section 102(1) of the Code of Criminal Procedure,
1973 according to which, Any police officer may seize any property which may be
alleged or suspected to have been stolen, or which may be found under circumstances
which create suspicion of the commission of any offence.
This section gives the police very wide powers to seize property that is alleged or
suspected to have been stolen; or found under circumstances as to create a suspicion of
the commission of any offence.
18

When property is seized by a police officer, he should forthwith send a report about the
seizure to the magistrate concerned.
19
Hence, the requisite has been done by the police
officer in the present matter.

15
Supra 14
16
R Gopal, Sohonis Code of Criminal Procedure 1973 (Butterworths, Nineteenth Edition, 2001, p. 562)
17
Narendra Bhimabhai Patel v. State of Gujarat, (1985) 1 Cr LJ 121 (Guj)
18
Kasturi Lal Kalia Ram v. State of Uttar Pradesh, AIR 1965 SC 1039; Emperor v. Sada, 11 Cr LJ 99; Surinder
Lal Ohari v. Raj Paul Gulati, 1985 Cr LT 109 (P & H)
19
State of Rajasthan v. PC Goswami, (1988) 1 Cr LC 606

5
The police sub-inspector acted rightly in seizing and detaining the lorry in the view that
the fact that neither the plaintiff nor the driver tried to satisfy the police sub-inspector that
the driver had a valid license.
20
This shows that even though the property was wilfully
given by Satyajit Ray to Nirmal Acharya, the Respondent was duty bound to return these
goods after his demise.
1.9 As provided under Section 102(3) of the Code of Criminal Procedure, 1973, the police
officer who reported the seizure to the Magistrate is expected to hold the property subject
to the orders of the magistrate.
21
Hence, the seizure has been conducted lawfully and no
right of the party has been lost.

20
Supra 16 (p. 642)
21
Supra 16 (p. 648)

6
Issue 2: Whether the Respondent is guilty of dishonest misappropriation of property u/s
403 of the Indian Penal Code, 1860?

2.1 As per Section 403 of the Indian Penal Code, 1860, Whoever dishonestly
misappropriates or converts to his own use any movable property, shall be punished
with imprisonment of either description for a term which may extend to two years,
or with fine, or with both.
The two basic ingredients of this section are:
(1) Dishonest misappropriation or conversion of property for a persons own
use.
(2) Such property must be movable.
22

In the present matter, both these ingredients are present. The Respondents refusing to
return Satyajit Rays property implies misappropriation. Further manuscripts,
photographs, scripts, illustrations and drawings are most essentially movable property.
In the case of Phul Chand Dube
23
, a person took possession of a bullock which has
strayed, but there was no evidence that it was stolen property, and he dishonestly
retained it, he was convicted under this section. Similarly, in the present matter,
there might not be any proof as to the fact that Satyajit Rays property was with the
Respondent, yet he can be convicted under Section 403.
In Makhulshsh
24
, the accused purchased for one anna, from a child aged six years, two
pieces of cloth valued at fifteen annas, which the child had taken from the house of
the third person. The accused was held guilty of criminal misappropriation assuming

22
Ratanlal Ranchhoddas and Dhirajlal Keshavlal Thakore, The Indian Penal Code, (LexisNexis Butterworths
Wadhwa Nagpur, New Delhi, thirteenth edition, 2008, p. 766)
23
Phul Chand Dube, (1929) 52 All 200
24
Makhulshsh, (1886) 1 Weir 470

7
that the accused knew that the property belonged to the childs guardian and
dishonestly appropriated it to his own use.
The word misappropriation in the illustrations and in the explanations to this section
replaced by the expression appropriates to his own use, which seems equivalent to
setting apart for his own use, to the exclusion of others. It does not of course follow
from this that setting apart by one person for the use of some person other than
himself and the true owner is not misappropriation.
25
The property in question should
be a part of national property. The Respondents not returning the same would amount
to misappropriation.
Where a person took possession of a bullock which had strayed, and dishonestly
retained it, it was held that he was guilty of criminal misappropriation.
26

When possession has been innocently acquired but from subsequent intention or
knowledge, the retention acquired becomes wrongful and amounts to its criminal
misappropriation.
27
After the demise of Nirmal Acharya, it is the duty of the
Respondent to return Satyajit Rays property.
Being in possession of the property without any attempt to find the owner may for
amount to evidence of the charge.
28

Criminal misappropriation takes place not when by a subsequent change of intention,
or from the knowledge of some new fact with which the party was not previously
acquainted, he keeps it, after which the retaining becomes wrongful and fraudulent.
29

25
Ram Dayal, (1886) PR No. 24 of 1886
26
Supra 23
27
State of Madhya Pradesh v. Pramode Mategaonkar, (1965) 2 Cr LJ 562 (MP)
28
Phuman v. R, (1908) 8 Cr LJ 250
29
Bhagiram Dome v. Abar Dome, (1888) ILR 15 Cal 388, Prakasam v. State of Travancore & Cochin, AIR
1953 Tr&Coch 537

8
The offence is completed by a mental act. Where more money than was due was
given to the accused, who retained the balance after finding out the mistake, is guilty
of dishonest misappropriation of property.
30

As can be seen from all the above cases, dishonest misappropriation has occurred in
the present case too. The Respondents refusing to return Satyajit Rays property
constitutes dishonest misappropriation as the property was naturally of immense
value. It would fetch a massive amount in the market. The only possible reason for the
Respondents not returning the property is that he wished to use it for his own benefit.
Even if he did not do so, his retaining the property would be a loss to national
property.

30
John D Mayne, The Criminal Law of India (Higginbotham, Madras, 1896, 4
th
edition, pp 646-57)

9
Issue 3: Whether the Respondent is guilty of criminal breach of trust u/s 405 of the
Indian Penal Code, 1860?

3.1 As per Section 405 of the Indian Penal Code, 1860, Whoever, being in any manner
entrusted with property, or with any dominion over property, dishonestly
misappropriates or converts to his own use that property, or dishonestly uses or
disposes of that property in violation of any direction of law prescribing the mode in
which such trust is to be discharged, or of any legal character, express or implied,
which he has made touching the discharge of such trust, or wilfully suffers any
other person so to do, commits criminal breach of trust.
The essential ingredients of criminal breach of trust are:
(1) The accused must be entrusted with property or dominion over it, and
(2) He must have dishonestly misappropriated the property or converted it to his
own use or disposed of it in violation of such trust.
31

This section extends to entrustments of all kinds. It embraces all cases in which a
thing handed over by one person to another for specific purpose. Entrustment
need not be express, it may be implied.
32

The aforesaid ingredients are present in the matter. Although the property in question
was entrusted with Nirmal Acharya, there is an implied entrustment with his brother,
the Respondent.
In Kundanlal v. State of Maharashtra
33
, wherein the accused, to whom the
complainant gave six gold bangles for repair, pledged the bangles with a bank to raise

31
JRD Tata v. Payal Kumar, (1987) CrLJ 447; State of Himachal Pradesh v. Ritu Raj, (1992) 1 Crimes 311
(HP); Manoranjan Tripathy v. Ganesh Prasad Singh, (1994) Cr LJ 204 (Ori); SW Palanitkar v. State of Bihar
(2002) SCC 129 (Cri); Kailash Kumar Sanwatia v. State of Bihar, (2003) 7 SCC 399
32
State of Madhya Pradesh v. Pramode Mategaonkar, (1965) 2 CrLJ 562 (MP)

10
loan and did not return them to the complainant, was convicted for criminal breach of
trust and misappropriated the property entrusted to him. The court convicted his son
under Section 403 and not Section 406 as the bangles were not entrusted to him.
In Krishan Kumar v. Union of India,
34
the accused was employed as an assistant
storekeeper in the Central Tractor Organisation (CTO) at Delhi. Amongst other
duties, his duty was the taking of delivery of consignment of goods received by rail
for CTO. The accused had taken delivery of a particular wagonload of iron and steel
from Tata Iron and Steel Co, Tatanagar, and the goods were removed from the
railway depot but did not reach the CTO. When questioned, the accused gave a false
explanation that the goods had been cleared, but later stated that he has removed the
goods to another railway siding, but the goods were not there. The defence version of
the accused was rejected as false. However, the prosecution was unable to establish
how exactly the goods were misappropriated and what was the exact use they were
put to. In this context, the Supreme Court held that it was not necessary in every case
to prove in what precise manner the accused person had dealt with or appropriated the
goods of his master. The same principle has been reiterated in a number of future
cases.
35

In Surendra Prasad Verma v. State of Bihar
36
, the accused was in possession of the
keys to a safe. It was held that the accused was liable because he alone had the keys
and nobody could have access to the safe, unless he could establish that he parted with
the keys to the safe.

33
Kundanlal v. State of Maharashtra, 2001(5)BomCR891
34
Krishan Kumar v. Union of India, AIR 1959 SC 1390
35
Jaikrishnadas Manohardas Desai v. State of Bombay, AIR 1960 SC 889
36
Surendra Prasad Verma v. State of Bihar, AIR 1973 SC 488

11
From all the above cases it is evident that the Respondent had misappropriated the
property in question. After the death of Nirmal Acharya, the Respondent has no right
to hold the property which belongs to Satyajit Ray and it is duty to return it to the
government of West Bengal, when asked for it.

12
PRAYER FOR RELIEF

Wherefore, in the light of the facts stated, issues raised, arguments advanced and
authorities cited, it is most humbly and respectfully prayed before this Learned Court that
it may
Pass an order enforcing the Respondent to hand over Satyajit Rays
manuscripts, photographs, drawings and illustrations which had been in the
possession of Nirmal Acharya to the government of West Bengal.
Order imprisonment for two years, or fine, or both as provided under Schedule
I of the Code of Criminal Procedure, 1973.
And further pass any other order or judgment in favour of the Petitioners as this
Honourable Court may so deem fit.

All of which is most humbly and respectfully submitted.

Date: 1
st
February, 2010. Counsel No. 667
Place: Calcutta Counsel for the Prosecution

Satyajit Ray

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