Panu Samal and Others vs Emperor

Dhavle, J.—This is an application in revision on behalf of three petitioners who have been convicted u/s 379, Penal Code and sentenced to pay fines of Rs. 60 each with two months'' rigorous imprisonment in default. My Lord the Chief Justice admitted the application because he was assured by counsel that the case fell within Section 190 (viz. Clause (c) of Sub-section 1) of the Criminal Procedure Code and that the accused were never informed of their right u/s 191 to have the case tried by another Court. It appears on an examination of the record, which was not before my Lord the Chief Justice, that the police who investigated the matter after recording the first information submitted the final report "mistake of law as it is a civil dispute," and that upon this the then Sub-divisional Magistrate read the case diary and also a petition by the prosecution and called for a charge-sheet u/s 342 against two of the petitioners and u/s 342 read with Section 114 against the third. The case however actually came up for trial before another Magistrate who succeeded the First Sub-divisional Magistrate.

The learned advocate for the petitioners has cited Nek Ram Vs. Emperor, , in which a learned Judge of the Allahabad High Court held that where a Magistrate, after examining the police diary, came to the conclusion that the police had not properly investigated the case and that a certain person should have been prosecuted, his proper course was to pass an order u/s 190(1)(c), Criminal P.C., ordering his prosecution, and that in that case, the provisions of Section 191 would apply.

The facts of that case are however entirely different from the facts of the present case, and it has been repeatedly held in the Calcutta and Patna High Courts that a petition of protest (as it is sometimes called) made to the Magistrate by a person who lodges a first information with the police and who is reported against by them is really a petition of complaint and must be dealt with as such.

If the petition had been treated as a petition of complaint, the then Sub-divisional Magistrate should have examined the petitioner on oath and could then have directed an investigation u/s 202, Criminal P.C. The latter was, however, rendered unnecessary by the report which the police had already submitted, and the failure of the Sub-divisional Magistrate to examine the complainant is a mere irregularity which cannot affect the venue of the trial. Clause (c) of Sub-section (1) of Section 190 only deals with cases where the Magistrate takes cognizance of an offence "upon information received from any person other than a police officer or upon his own knowledge or suspicion."

In the present case the Sub-divisional Magistrate only acted on information contained in the police diary and the petition filed by the other side, this latter coming within Clause (a) of the same Sub-section and the former (as I am inclined to think) within Clause (b). In my opinion therefore Clause (c) has no application whatsoever to the facts of the case. It is also clear that even if it did have any application, Section 191 does not entitle the petitioners to anything beyond what has actually taken place. That: Section does not give the accused the right to be tried by a Court or Magistrate of their choice, but only makes it impossible for the Magistrate who took cognizance under Sub-section (1), Clause (c) of Section 190 to try the accused except with his consent. In the present case the petitioners were tried not by that Sub-divisional Magistrate who had taken cognizance on the materials already referred to, but by his successor.

The learned advocate points out that the Section speaks of trial by another Court, whereas in the present case the trial was still by the Court of the Sub-divisional Magistrate. I am not impressed by the point, because the Section begins with "when a Magistrate takes cognizance of an offence....", and what it means by trial by another Court is made clear by the substantive provision that if the accused objects to being tried by such Magistrate, the case shall be committed to the Court of Session or transferred to another Magistrate. The point on which the application in revision was admitted therefore fails.

The learned advocate has also urged that this is a case of a civil dispute and not a case of theft at all. It appears that Bidyadhar, the natural son of Krittibas, was adopted by Lakshmidar Mahapatra, and executed a usufructuary mortgage in favour of Krittibas and that the petitioners, of whom one is a servant, and the other two claim to be bhag tenants, of Harekrishna who has succeeded to the property as a reversioner on the death of Bidyadhar and his widow. Krittibas, the usufructuary mortgagee, is dead and was succeeded by Narsingh who was in possession as usufructuary mortgagee and grew the paddy crops, the subject of the theft.

The learned advocate refers to a provision in the mortgage deed that if the mortgagee should be dispossessed, he would be entitled to the principal with interest at the rate of Rs. 2-2-0 per month, besides paddy at the rate of 3 chhelas (=12 maunds) per acre. The contention is that in case of dispossession this was the remedy open to the mortgagee. This remedy was undoubtedly available to the complainant, but that does not by any means involve the consequence that it was not open to the mortgagee to complain of theft.

The lower Courts have disbelieved the defence story that the crop was grown by them, and found that it was grown by the complainant. Harekrishna and his men could not therefore have had any bona fide belief that they were entitled to the crops. The conviction of the petitioners must therefore be affirmed. As to the sentence, having regard to the value of the paddy stolen and the apparent means of the petitioners, it seems to me that the ends of justice will be served if the sentence on the petitioners is reduced to a fine of Rs. 30 each with one month''s rigorous imprisonment in default. The order of compensation to P.W. 1 Narsingh will stand.