Parmeshwar Lal Mitter vs Emperor

Jwala Prasad, J.—The petitioner has been convicted u/s 447, I.P.C. and sentenced to pay a fine of Rs. 51 by the Honorary Magistrate of Bhagalpur. The trial was held according to the procedure laid down in Chapter XXII of the Code of Criminal Procedure for summary trials.

As Section 447 is a summons case, the procedure laid down under Chapter 20 of the Code for the trial of summons cases would apply to the trial of the present case by virtue of Section 262 of the Code. The trial is impugned as having been vitiated by the irregularities committed by the Magistrate. It is also urged that in the circumstances of the case the Magistrate ought to have tried the case not summarily but by the regular procedure as there were complicated questions of the title and possession involved in the dispute between the parties. For this reliance is placed upon sub-section 2 of section 260 of the Code. The irregularities complained of may be summarised as follows:-

(1)That the examination of the accused u/s 342 was not taken or recorded;

(2) that no opportunity was given to the accused to cross-examine the complainant on the main question relating to the occurrence;

(3) that the Magistrate acted illegally and irregularily in not placing a note of his local inspection on the record;

(4) that the Magistrate imported into his judgment facts, the knowledge whereof he gained at the local investigation, and did not confine himself strictly to the evidence taken by him in Court; and

(5) that the findings of the Magistrate are not sufficient for a conviction u/s 447, I.P.C.

In order to appreciate the first contention, namely, that the trial in the present case should not have been by the summary procedure it is necessary to state very briefly the circumstances relating to the dispute between the parties.

In 1902 the complainant purchased about 12 bighas of Brahmottar land situate in village Jichuchuck. There was a dispute with regard to either the whole or a portion of this land between the complainant and the neighbouring village Shampur which resulted in favour of the complainant. Subsequently he acquired the raiyati interest also in respect of those 12 bighas. In 1905 the record-of-rights was prepared. Plots Nos. 83 to 86 have been shown in the record-of-rights as belonging to the complainant and plot No. 82 as belonging to Mr. Grant. In 1908 there was a civil litigation between the complainant and Mr. Grant which resulted in a decree in favour of the complainant with respect to two bighas. The complainant obtained dakhaldahani in 1911. The present dispute is in connection with plot No. 82, measuring 11 kathas. The accused obtained lease or mastasiri from Mr. Grant including the land in dispute, plot No. 82. The complainant''s case is that the accused on the day of occurrence forcibly ploughed about 11 kathas of land in Plot No. 82. The question before the Magistrate for determination was therefore whether the 11 kathas of land in dispute is a part and parcel of the two bighas and odd decreed in favour of the complainant in the year 1908. The above statement will clearly show that the dispute between the parties is far from being simple. In the litigation in the Civil Court the plots of land were not specified and it is difficult to find out whether it corresponds with plot No. 82 of the survey or not. According to the survey the land in dispute is admittedly in the name of the accused''s lessor and is covered by the lease granted to him. It was therefore for the complainant to prove conclusively that the particular plot was covered by the decree and the writ of delivery of possession obtained by him from the Civil Court. On the 14th August 1920, it appears from the order-sheet that the Magistrate admitted that the question involved in the present case was an intricate one dealing with title and possession of the parties and that upon that ground it was transferred from the file of one Honorary Magistrate to the present one, apparently because the Honorary Magistrate who had tried the case was an experienced retired officer. The evidence laid in the case by the parties was far from convincing as to the exact location and identity of the land in question. This necessitated a local inspection by the Magistrate.

From the judgment of the Magistrate it is clear that he could not entirely depend upon the evidence before him but had perforce to take assistance of the impression upon his mind created by the local inspection and upon the statements of the parties made before him while pointing out the land in dispute. Upon this sole question as to whether the land in dispute was identical with plot No. 82, the Magistrate has devoted about 11 typed pages. This could not possibly come within the scope of a summary trial wherein one point would require the Magistrate to write such a long judgment. It established beyond doubt that the case was one which on the face of it came under sub-section (2) of Section 260 of the Code of Criminal Procedure and the Magistrate would have done well if be had exercised discretion vested in him by that section and had tried the case by the ordinary procedure. The pre-judice resulting from the summary procedure to the accused is obvious, for the question for determination depended upon the documentary evidence and comparison of the survey map with the locality. The learned Magistrate himself says that he tried his best to draw up a sketch of the land in accordance with the survey map. I think if the course adopted by the Magistrate were not summary, the best way to solve the difficulty would have been to depute a commissioner to find out the exact position of the land in question. I therefore agree with the contention that the procedure for the trial of the case was not proper and that the case should have been tried in an ordinary way.

The irregularities complained of appear to me to be substantial and fatal to the trial of the petitioner. There is no trace in the record of the examination of the accused u/s 342, as has been settled by this Court in a number of cases, is essential and obligatory. The Bombay High Court in the case of G.S. Fernandez v. Emperor, (1921) 45 Bom. 672=59 I.C. 129=22 Bom. L. R. 1040 following the decision of this Court in the case of Raghu Bhumij v. King Emperor, (1920) 5 P.L.J. 480=58 I.C. 49=1 P.L.T. 241 held that the principle of the decision of this court extends to the trial of summons cases also and that the omission to examine the accused u/s 342 would vitiate the whole trial. No doubt u/s 26 of the Code the Court is required to prepare a record of the summary trial giving the particulars enumerated in that section. True also that the Magistrate need not record the evidence of the witness or frame a formal charge and that the judgment of the Court embodying the substance of the evidence and the particulars mentioned in Section 263 shall only form the record of the case (Section 264). But neither these Sections 263 and 264, nor any other provision in the Chapter for summary trials does away expressly with the requirements of sections 342 and 364 of the Code relating to the examination of the accused. The Magistrate is not absolved from the responsibility of recording the examination of the accused simply because the trial was summary. The plea of the accused under clause (g) of section 263 cannot possibly take the place of the examination of the accused, for the former naturally occurs at the initial stage of the case and the latter after the termination of the prosecution evidence and before the accused is called on to enter into his defence. It appears from the record that the complainant was examined and cross-examined on the 23rd August, and on the next date, the 30th August two more witnesses were examined and cross examined. The case was then fixed for the 13th September for the defence. On that date the accused made an application stating that the complainant was not cross-examined upon the occurrence, as the Magistrate intimated to the pleader for the accused that the cross-examination should at that stage be confined as to the title of the parties to the land in question. The petitioner accordingly desired that an opportunity should be given to him to cross-examine the complainant on the occurrence. The Magistrate rejected this petition on the ground that the complainant had been cross-examined at great length. There is no denial by the Magistrate of the facts set-forth in the petition, namely, that the cross- examination of the complainant about the occurrence was postponed with his direction, nor has any explanation been submitted to this Court to contradict the statement made in the petition to this Court. It would appear that the complainant was, as a matter of fact, not cross-examined at all about the occurrence, whereas the two witnesses examined on the 30th August were cross-examined. There is no reason why the complainant should not have been cross-examined upon the occurrence inasmuch as the accused denied that there was any occurrence such as was alleged by the prosecution. The Magistrate apparently was in doubt as to the question of title involved in the case and consequently wanted to have the evidence laid upon that point first. In the circumstances the accused has been denied the opportunity of cross-examining the complainant upon the occurrence and the Magistrate would have exercised his discretion better if he had allowed the complainant to be re called for cross-examination. No doubt the procedure laid down for the trial of summons cases, the complainant has no right to postpone the cross-examination of any prosecution witness as in the case of the trial of a warrant case. But if the cross-examination was postponed in accordance with the direction of the Magistrate, the Magistrate was bound to give further opportunity to the accused to cross-examine the witness. Without such a cross-examination, the complainant''s evidence will not be legally admissible.

The aforesaid irregularity also therefore vitiates the trial.

The third and the fourth objection relate to the local investigation and may be disclosed of together. There is nothing in law to prevent a Magistrate from making local inspection; but in order to give an opportunity to the accused to remove any wrong impression created on the mind of the Magistrate it is fair that a note of the inspection should have been placed on the record and the parties should have been given an opportunity of being heard with respect to it. The Magistrate therefore committed a grave irregularity in this case, particularly when he has used the information gathered at the locality, as substantive evidence in the case.

The civil court dakhaladahani took place in 1911 in favour of the complainant. The Magistrate no doubt has addressed himself at great length to find out whether the plot in dispute was covered by the civil court dakha adahani or not and he has also held that the accused disposed the complainant from the land, he has not come to a define finding as to whether the complainant or the accused was in possession of the land in dispute at the time when the occurrence took place. This is apparently because be was misled by the issue laid down by him, namely, whether the accused dispossessed the complainant from the land. No issue was framed by him as to whether the complainant was or was not in possession of the land. Thus the finding of the Magistrate upon the issue laid down by him does not dispose of the case under S. 447, I. P. C. which require it to be affirmatively and positively held that the complainant was in possession of the land in dispute with respect to which the criminal trespass is said to have been committed.

For all the aforesaid reasons I think the trial in this case has been illegal and I accordingly set aside the conviction of and the sentence passed on the petitioner. The fine if already realised should be refunded.

In view of the aforesaid remarks I do not think any useful purpose will be served by ordering a retrial. The parties are apparently disputing the possession of the land in question and in case of the dispute being of a serious nature the Magistrate has full power to deal it under the law to prevent any breach of the peace.