Dasai Singh and Others vs Emperor

Fazl Ali, J.—On 20th November 1928 the opposite party filed a petition of complaint before the Sub-Divisional Officer of Dinapur complaining that the petitioners had dishonestly removed an elephant which was the joint property of the petitioners as well as the opposite party and prayed for processes against them u/s 424, I.P.C.

The complaint was referred to the police for enquiry and on 25th November 1928, the police officer submitted a report in which after referring to certain circumstances which according to him made the conduct of the petitioners somewhat suspicious, he concluded that as both the parties were admittedly the joint proprietors of the elephant and as a batwara suit was pending it was purely a case of civil nature. The learned Sub-Divisional Officer of Dinapur then examined the complainant and after hearing his evidence, he discharged the petitioners. The Sub-Divisional Officer says in his order that the complainant had given a long and rambling story of how the elephant disappeared one day from the ijmal hatikhana and that in his opinion no inference could be drawn from the removal as to the criminal intention of the accused. He also considered it:

useless to proceed with the complaint as the elephant undoubtedly would be a subject matter in dispute in the batwara suit and that he need not prejudge the civil Court order.

The Sub-Divisional Magistrate also provided that if the accused persons furnished cash security of one-quarter of the alleged price they were to keep the elephant but if they failed the complainant might take the custody of the elephant on depositing cash security to the extent of Rs. 4,875 which represented the value of the admitted share of the accused in the elephant. The complainant thereupon moved the Sessions Judge against the order of the Sub-Divisional Officer of Dinapur and the learned Sessions Judge by an order dated 21st February 1929 directed a further inquiry into the case. The learned Sessions Judge has pointed out that the conduct of the accused was somewhat suspicious and that in case the elephant was not found to be the exclusive property of the accused it could hardly be said that there was no evidence of dishonest and criminal intention.

The petitioners have now come to this Court against this order passed by the learned Sessions Judge and they ask this Court to set aside that order. Now, the position in this case appears to be this. The complainant admits that the elephant is the joint property of the complainants and the accused persons and that the latter own of share in it. The case of the accused on the other hand is that the complainant has no share at all in the elephant and that the elephant is not the joint property.

There is also a batwara suit pending between the parties and the question as to whether the elephant is or is not the joint property of the family is a question which will have to be debated and decided in the suit. These being the broad features of the case, the question is whether a criminal case should proceed while the batwara case is pending. In my opinion as the main question which is involved in the present case is before the civil Court and will have to be decided by that Court the order of further enquiry made by the Sessions Judge in these circumstances should not be allowed to stand.

I would therefore set aside the order of the learned Sessions Judge directing further enquiry into the case and restore the order passed by the Magistrate. It may, however, be observed that the accused have only been discharged and not acquitted and there will be no legal bar to a prosecution being revived, if the complainant applies for it after the decision of the civil suit and it will be then open to the Magistrate to consider whether having regard to all the circumstances of the case the complaint should be entertained.