Jhumak Rai and Others vs Emperor

Manohar Lall, J.—This is an application in revision challenging the propriety of the conviction of the petitioners, who are seven in number, u/s 379, Penal Code. They have been sentenced to rigorous imprisonment for 15 days each.

The case for the prosecution was that one Eamdeo Singh had obtained delivery of possession over plot No. 404 and when his servant Lalji Eai, the complainant in this case, went on Thursday, 7th March 1940, he found the petitioners, some of whom were ousted tenants, digging up potatoes from the field, and in spite of his remonstrance, they carried away the potato crop. The Courts below have concurrently found" that Eamdeo was in possession on the date of the occurrence by obtaining delivery of possession through Court on 30th December 1989. Learned Counsel for the petitioners argues that, if the Courts below had only perused the copies of the judgment and decree which were filed in the case on behalf of the defence (Ex. B), they would not have come to this conclusion and would have been satisfied that the petitioners had a bona fide belief that the crops found to have heen taken away by them were not the crops of Ramdeo Singh but belonged to Rampalak (petitioner 2) at the very least.

Now it appears that Eamdeo Singh instituted rent suits against a number of tenants, including Eampalak, in 1938 and obtained rent decrees on 17th November 1938. He put the holdings of the tenants to sale and purchased them himself on 26th September 1939, and obtained delivery of possession on 30th December 1939, as already stated. But, in the meantime, on 9th Septem-ber 1939, Rampalak Mahton and some of the other petitioners (who are not connected with plot No. 404) instituted a number of civil suits to have the rent decree obtained by Ramdeo Singh set aside. While the civil suits were pending, the occurrence took place on 7th March 1940. The civil suits, however, were disposed of by a judgment on 31st July 1940, which was embodied in the decree on 7th August 1940, by which the rent decrees have been set aside, with the result that the sales held thereunder were no longer valid. It seems to me, that in these circumstances the petitioner Rampalak cannot be held to have any dishonest intention when he removed the crops while he was contending that the rent decree and the sale under which his holding was supposed to have passed on to Ramdeo Singh was not binding on him as having been obtained by fraudulent suppression of summons.

The learned advooate for the respondent argued that the judgment of the civil Court is under appeal and no final decision has yet been given by the appellate Court. But whether the decision of the civil Court of 31st July 1940 has been upheld or set aside, the petitioner, Rampalak, cannot be said to have any dishonest intention when he removed the potato crops on 7th March 1940. He may have committed a civil trespass if it is ultimately found that his holding has rightly been sold away; but his action on 7th March 1940, cannot be designated as criminal.

For these reasons the conviction of Rampalak Mahton must be set aside.

With regard to the other petitioners, it is true that they are not interested in the land in question, and they tried to show that they have been implicated falsely on account of their having instituted civil suits of their own to set aside the rent decrees obtained against them by Ramdeo Singh? regarding other lands. This is eminently a question of fact and cannot be considered by me in revision. But when the principal actor Rampalak Mahton, who was interested in plot No. 404, cannot be convicted for the theft of the potato crops, I do not see that it is all proper that his adherents and com-panions should be convicted for helping him in removing his own crops.

For these reasons the convictions of all the petitioners are set aside. The petitioners appear to have served out their sentences, and so no order is called for beyond stating that theiu convictions are set aside.