Sebastian Lobo vs Mingel D'Souza

Walsh, J.—In this case the accused and the complainant were neighbours and there was a dispute as regards the boundary between them

which was not demarcated. The accused had put up a wall and the complainant sent a notice, Ex. A saying that he encroached on his side. To this

the accused retorted by Ex. B stating that the complainant''s roof encroached upon his plot and there was possibility of rain water falling on his

newly built boundary wall and each of them ordered the other to remove the encroachment on his land. From his own admission in the sworn

statement the complainant removed the accused''s wall on 22nd April 1931, and on 24th April 1981, the accused removed part of the

complainant''s roof which he considered was an encroachment on his site. He has been criminally convicted of an offence u/s 427, I.P.C., by a

Bench of three Magistrates writing the majority judgment and one writing a dissenting judgment.

The first ground raised in this revision petition is that the conviction is u/s 427 and the evidencs shows that the damage amounts only to Rs. 25.

This is not contested on behalf of the Crown and and it is clear that accused could be convicted only u/s 426. The next and the main contention is

that the accused cut away the roof under a bona fide claim of right and in this connexion, In re, Daniel Grove [1882] 1Weir 488; Queen v. Vyapuri

[1882] 5 Mad. 401 and In re, Dharmalinga Mudaly [1916] 39 Mad. 57 were quoted. In In re, Daniel Grove [1882] 1Weir 488 it is stated as

follows:

If a parson removes an obstruction from property which is not his own, but which he believes to be his own and thereby causes loss, yet as he had

not the intention nor the knowledge which are necessary to constitute the of fence, he cannot be convicted of mischief.

That seems to be exactly similar to the present case particularly when we consider that the complainant himself under, a similar exercise of his

supposed rights removed the accused''s wall only two days before. I think that this is clearly a ease where the matter was one for the civil Courts

to decide, as the criminal intention was wanting. For that reason the conviction must be set aside.

Another objection was raised with regard to the conduct of the trial which would make the conviction invalid. An inspection was made on 2nd

November 1931, but the memorandum was not drawn up till 9th November 1931. S. 539-B, Criminal P.C., directs that it should be drawn up

without unnecessary delay. In their explanation on the point it is simply stated that the record was drawn up at the next sitting but no reason is given

which prevented the Magistrates from drawing it up before. There is however a more important objection as regards this report. The report was

signed by four Magistrates, one of whom did not take part in the judgment and one of the Magistrates who took part in the judgment did not sign

in the memorandum. It was argued for the Crown that the memorandum made by some Magistrates could be available to those who were not at

the inpection but I am extremely doubtful whether this would not contravene both the spirit and the letter of the Section 539-B. The object of

drawing up a memorandum is twofold, that those who inspect the site of occurrence may record their immediate impression and secondly, that

there may be an agreed record of what they saw. The memorandum drawn up by some Magistrates is of no use, or (sic) finality to a Magistrate

who has not seen the spot and consequently cannot be in a position to state whether the description therein is correct. It may be noted that Section

539-B provides for trial by jury or with the aid of assessors, the jury or assessors must also be given an opportunity to view the spot. This clearly

shows that everybody who has to give his opinion, let alone his verdict on the case should join in any inspection made. However for the second

reason I think it is clear that the conviction must be set aside, and the fine if paid will be refunded.