Gainu Panday vs Emperor

Jawala Prasad, J.—The petitioner in this case was convicted by the Sub-Deputy Magistrate of Ara(sic) for an offence u/s 426, Indian Penal Code. The charge is in respect of 100 jack fruits said to bays been removed by the scanted from the trees standing on (sic) No. 1219. The petitioner was sentenced to pay a fine of Rs. 25. He appealed to the District Magistrate of Pornee, who, by his order of the 18th December lt20, dismissed the appeal. The petitioner hap, therefore, come to this Court in revision.

It appears to me that the conviction of the petitioner u/s 426, Indian Penal Code, cannot stand. Neither in the complaint petition, nor in the statement on oath recorded on the beck of it has any offence u/s 426 been disclosed. It is not stated that the (sic) in question were plucked when they were not fit for plucking. The case, if any, upon the complaint petition and on the oath was that of removal of the fruits from the trees and, therefore, the offence was one u/s 379, and not u/s 426, Indian Penal Code. In order to (sic) jurisdiction to the Magistrate to summon the accused u/s 426 : Indian Penal Code, for mischief, it was essential for complainant to make out a prima facie case in his petition or is his statement on oath of any deterioration having been paused by the accused in the value or utility of tie fruits, and unless such a deterioration was made on, there was no offence disclosed u/s 426 for causing mischief. Again, it was apparent on the statement on oath of the accused, which alone was tie foundation for the recognizance to be taken by the Magistrate, that the accused was raising & bona fide, claim of right to the fruits in question by reason of the purchase of the holding upon which tie (sic) stood at a Civil Court auction sale. The Trial Court, as well as the lower Appellate Court, accepted the delivery of, possession given by the Civil Court in favour of the landlord through whom the accused claimed. That delivery had taken place in or about the year 1910. The accused, holding under a registered patta granted by the landlord to the auction-purchaser of the holding, had every right to believe that the fruit trees belonged to the landlord and (sic) to him by virtue of the aforesaid settlement. The Survey Record of Right so strongly relied upon by the Magistrate far from helping the prosecution supports the ease of the defence. Assuming that the complainant wan an under-tenant, the land on which the trees are said to be standing was admittedly sob let to Kulu, one of the accused who was not summoned but was examined as a defence witness No. 6. The complainant relies upon a reservation with respect to the trees. No documentary evidence of a settlement excluding the trees has been produced. The summary of the evidence set forth in the judgment of the Magistrate clearly showed that the case of the complainant as regards having reserved to himself the trees depends entirely upon the oral evidence. If that is so, apart from the accused disputing the truth of the alleged sub-lease, there was nothing to apprise the accused of the existence of a settlement in favour of Kulu excluding the trees in, question. They were, therefore, entitled to believe that the trees also were settled with Kulu and that they were not in the possession directly of (sic) the complainant. A mere reading of the judgment of the Sub-Divisional Magistrate, who has at more than one place dealt with the disputed rights in the case, makes it clear that there was at least a bona fide dispute with regard to the right in and possession of the contending parties, which ousted the jurisdiction of the Magistrate altogether from taking cognizance of the case.

It is needless to pursue the matter further. It will be sufficient to refer to the two cases decided by this Court, namely, Talebar Chowdhry v. Emperor 40 Ind. Cas. 750 : 2 P. L. W. 49 : 18 Cr. L. J. 750 and Bhim Bahadur Singh v. Emperor 55 Ind. Cas. 854: I. P. L. T. 121 : 2 U. P. L. Rule (sic) 53 : 21 Cr. L. J. 374 : (1922) Pat, 10. The judgments in those cases delivered by me would have been re-written for this case by simply changing the names of the parties and substituting "jack fruits" for "crops." If the Magistrate had those cases before him, perhaps he would have come to the conclusion that neither the facts in this case disclosed tie offence u/s 426, nor had he any jurisdiction to try the ease inasmuch as the accused were entitled to raise a bona fide dispute of title. I would, therefore, recommend those cases to the Magistrate for him to read as a supplement to the present judgment and for his guidance in cases of this nature.

The application is allowed. The conviction of, and the sentence passed on, the petitioner by the Magistrate are set aside. The fine, if already realised, will be refunded.