Talebar Chowdhry vs Emperor

Jwala Prasad, J.—The petitioner in this case was convicted by the Sub-Divisional Magistrate of Giridih for an offence u/s 426 of the Indian Penal Code. The charge is in respect of paddy crop said to have been cut and removed by the accused on the 17th of November 1916, The accused was sentenced to rigorous imprisonment for two weeks and to pay a fine of Rs. 50, He appealed to the Deputy Commissioner of Hazaribagh who, by his order dated the 27th of February 1917, summarily dismissed the appeal. The petitioner has, therefore, moved this Court for setting aside the order of the Deputy Commissioner as well as that of the Sub-Deputy Magistrate convicting him of the offence referred to above.

It appears to me that the conviction cannot stand.

Neither in the complaint petition nor on the statement made on solemn affirmation, by the complainant has any offence u/s 426 been disclosed. The statement made in the complaint petition is that on the day of occurrence the accused forcibly cut and removed some paddy crops of the complainant from one plot of his land; and that when he remonstrated with him the accused was ready to quarrel. The reason given for this highhanded act of the accused is that the complainant had refused to serve the accused.

The facts appear to be as follows:

There was a holding known as No. 3 in the Khas Mahal jamabundi. That holding originally stood in the name of one Gulab Dusadh. It was subsequently sub-divided among other co-sharers two of whom were Lalit Dusadh and Talebar, Chaudhury the latter is the accused in this case. Although the lands were split up, the rental or jama continued to he one in the records of the Khas Mahal, which is the proprietor of this holding. It is admitted by the Sub-Deputy Magistrate as Well as by the Khas Mahal Tahsildar, and peshkar who have been summoned as witnesses in the case, that the entire holding was liable to be sold for arrears due from any of the co-sharers of the holding.

It appears, as has been held by the first Court, that Lalit and Talebar fell into arrears of rent for the year 1914-15. An application was made by the Khas Mahal for issue of a certificate in respect of the arrears. A certificate was accordingly issued but the arrear was not realized. There entire holding No. 3 was accordingly advertised for sale and the accused, in the name of his wife purchased the holding at the auction sale held in execution of the certificate referred to above. This sale took place in November 1915 and a sale certificate was obtained. Thereafter, on the 27th of June 1916, delivery of possession was effected by a peon of the Court. The peon in his evidence says that he actually put the purchaser into possession of the property by having in his presence 5 or 6 plots of land ploughed up. The peon, however, adds that he thought that only the lands of Lalit and Talebar, the judgment-debtors mentioned in the sale certificate, were being given possession of. Both in the sale certificate and in the dakhildehani, the holding has been described by its number which is No. 3 mentioned above. No boundary has been given in the sale certificate or in the dakhildehani. It appears, therefore, that the entire holding No. 3 was sold and purchased by the accused in the name of his wife and the effect of the delivery of possession would be to deliver the entire holding to the accused. The complainant, who is a co-sharer in the holding, was not made party either in the sale certificate or in the other execution proceedings relating to the delivery of possession, but it appears from the judgment of the first Court that these persons, after the delivery of possession, filed an objection to the sale of their lands which was rejected. Thus it is clear that the complainant and the other co-sharers of the land knew perfectly well of the sale of the land and of the delivery of possession of the same to the purchaser. Be that as it may, the conviction must be set aside upon the finding of the Court below. The Sub-Deputy Magistrate says in his judgment: �It is clear to me from the evidence that he (the accused) did not sow the crops he out, but, as is usual with sale purchasers, after getting formal delivery of possession of some of the lands, allowed the claimants to sow the crops, then, when it was ripe for harvest, boldly cut it, setting up in defence good faith. In this case, therefore, the only point for decision is whether Talebar Chaudhuri acted in good faith."

The first question for determination was whether the facts, even if true, amounted to an offence of mischief u/s 425 of the Indian Penal Code.

According to the Magistrate the crops were cut when they were ripe and in full time. The cutting of the crops, therefore, did not cause any deterioration in the value of the property and unless there is a deterioration caused by the act of the accused; there cannot be mischief within the meaning of the aforesaid section.

In this connection I would rely upon the case of In the matter of Miras Chokhidar 7 C.W.N. 713. The facts of that case are very similar to those of the present case. The learned Judges, in delivering judgment in that case said: �Taking these facts as found it appears to us that the accused could not be convicted of mischief, because he did not cause the deterioration of any property or any such change in any property or in the situation thereof as diminished its value or utility. Of course if the paddy had been unripe and not fit to be cut, he might have been convicted of mischief; but it is not found in this case that the paddy was not in a fit state to be cut."

The conviction of the accused must, therefore, be set aside on this sole ground. But I further hold that the accused in this case acted in good faith and under a bond fide belief that he was entitled to the possession of the land delivered to him by the Court in consequence of his purchase at the auction sale.

The learned Deputy Commissioner on the 27th January 1917 dismissed the appeal of the petitioner in the following words:-- �Pleader heard. Appeal summarily dismissed." No reason has been given by him for dismissing the appeal. This is contrary to Section 424 of the Code of Criminal Procedure, which requires that a judgment, whether it be u/s 421 or u/s 423, should be written by the Appellate Court in accordance with the rules laid down in Chapter XVI, including Section 367 of the Code of Criminal Procedure, for, the recording of a judgment. When the order of the Appellate Court is liable to revision by the High Court, it is expected that the Court would give some reason for dismissing the appeal to show that the '' points raised in the appeal were properly considered by the Court.

The application is, therefore, allowed, the conviction and sentence are set aside and the fine, if realised, must be refunded to the accused.

This case is in all respects similar to/ Criminal Revision No. 158 of 1917, which has just now been disposed of.

The Magistrate who tried the case has referred in his judgment to the reasons given in the judgment of the case from which Criminal Revision No. 158 of 1917 arises.

In addition to what I have said in my judgment in that case, 1 would mention that the Magistrate had framed a charge u/s 379 of the Indian Penal Code in this case but he convicted the accused u/s 426 of the Indian Penal Code, without giving any reason for altering in his judgment the charge that was originally framed by him.

The applications, therefore, allowed, the conviction and sentence are set aside and the fine, if realised, must be refunded to the accused.