Garasia Jorubha vs State

Baxi, J.—The Sessions Judge, Halar Division, has made this reference for quashing the applicant''s conviction and sentence u/s 447, I.P.C. passed by the First Class Magistrate, Dhrol-Jodiya. The applicant has been sentenced by the Magistrate to pay a fine of Rs. 50/- and in default of payment of fine he has been ordered to undergo rigorous imprisonment for 20 days.

The applicant is the owner of a field which he had let to Rama Jiva for a year. The year of tenancy had expired and Rama died. According to prosecution the complainant Jesang Jiva, the brother of the deceased Rama was jointly cultivating the field with him and was in possession of it after his death but the applicant entered the field and began to cultivate it. The applicant while admitting having entered the field denied having committed any offence. His contention was that Rama and the complainant were separate and that Rama''s heir was his widow. According to this submission, the complainant was separate from Rama and was not in possession of the field.

The learned Magistrate accepted the complainant''s contention that he and his deceased brother Rama were undivided and after the death of Rama he was in possession of the field and that Rama''s widow lived with him. He held that the applicant not having taken any steps to terminate the tenancy his entry into the field amounted to an offence u/s 447, I.P.C. and convicted and sentenced him as stated above. The applicant preferred, a revision application against his conviction to the Sessions Judge, who held that it was not proved that the complainant was in possession of the field or that the applicant''s entry into the field could not be attributed to the expiry of the tenancy or to the exercise of his right of resumption on Rama''s death.

The prosecution did not examine Rama''s widow and the learned Sessions Judge commented on its failure to examine her observing that if she had been examined, she would have set up a title against Jesang and would have alleged that she and not Jesang was in possession. He held that as the complainant was not in possession, the applicant''s entry could not have insulted or annoyed him and moreover the applicant''s entry was in the bona fide exercise of his claim to enter the field on Rama''s death and. therefore he should be acquitted and made this reference accordingly. The Magistrate had omitted to examine the applicant at the close of the trial u/s 342, Code of Criminal Procedure and the learned Sessions Judge held that the applicant was seriously prejudiced thereby and on this ground also he made this reference.

The learned Magistrate''s finding that the complainant was undivided with his brother and continued in possession of the field after his death was a finding of fact based upon appreciation of the evidence and it was not open to the learned Sessions Judge to make a reference on such a finding unless it is shown to be contrary to evidence or perverse or otherwise manifestly wrong. There is evidence on record to support the learned Magistrate''s finding and therefore we decline to interface with it. We may here, add that the question of the applicant''s entry being in bona fide exercise of his claim does not arise in this case because no landlord can be permitted to re-enter the property on the alleged expiry of the lease otherwise than in due course of law and if he so enters, he cannot be permitted to plead that he did so in the bona fide exercise of his rights.

On the question of law raised by the learned Sessions Judge we agree that the learned'' Magistrate should have examined the accused u/s 342, Code of Criminal Procedure at the close of the trial and we would like to impress upon the Magistrate his duty to comply strictly with the provisions of law when trying accused persons. In this case however his omission to examine the applicant does not appear to have caused him any prejudice. The applicant gave a written statement drafted by a pleader and in these circumstances we do not think that the learned Magistrate''s omission to examine the accused justifies the reversal of his order. We therefore summarily reject the reference.