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Kali Charan Das and Others vs Geli Bewa

Patna High Court · Decided on 15 January 1921 · Citation: 63 Ind. Cas. 336

HON’BLE JUDGES
Ross, J · Jwala Prasad, J
ACTS & SECTIONS REFERRED
Criminal Procedure Code, 1898 (CrPC) — Section 367 · Penal Code, 1860 (IPC) — Section 448
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Judgment

7 paragraphs · 365 words

Jwala Prasad, J.—The Rule must be made absolute. It is enough to quote the entire judgment of the Court below in order to show that it is not a judgment at all, as is required by Section 367 of the Code of Criminal Procedure.

On going through the records I find it clearly proved that the complainant was assaulted at her house. Even supposing that the accused had some bona fide claim of right to the house (which was not made out to the satisfaction of the lower Court), there does not appear any justification for the assault committed on a person in possession of the house for the time being. The appeal is rejected.

2.

Neither the fasts nor the points for determination or dissuasion of those points find a plane in the aforesaid judgment of the Court. That in itself is sufficient to set it aside. The question then is whether we should remand the case for disposing of the appeal in accordance with law or acquit the accused altogether.

3.

The accused were tried on a charge of criminal trespass into the house of the complainant u/s 448 of the Indian Penal Code. The defense raised was one of bona fide assertion of claim. The learned Magistrate overruled the plea of the accused and held that there was no bona fide assertion of any claim, bat that the accused anted fraudulently and maliciously in forcing themselves into the house of the complainant. The learned District Magistrate doubts the correctness of the view taken by the Trial Court and justifies the conviction upon the ground that the accused had no right to assault the complainant. There was no charge of assault at all and the accused could not be convicted of assault, nor of criminal trespass on account of assault.

4.

We have read the judgment of the trying. Magistrate and we do not think that this is a case in which the accused should be put to another trial. The result is that the application is allowed, the conviction and the sentence passed on the accused are set aside and the fine, if paid, must be refunded.

Ross, J.

5.

I agree.