KATAPPA Vs. SERAPPA SAKALATHI RANGAPPA AND

JUDGEMENT

(1.) This revision petition is directed against the judgment of the First Class Magistrate, Chitaldrug in C. C. No. 710/54 on his file convicting the petitioners for offences punishable under Sections 427 and 447, Penal Code and sentencing each of them to pay a fine of Rs. 5/- on each of the counts and in default of payment of fine to suffer S. J. for 15 days.

(2.) The respondents filed a private complaint against the present petitioners on 19-5-1954 alleging that they had unauthorisedly trespassed into the two sites that they had purchased from Mananji Rangappa and had removed the fencing that had been put up and had further constructed five sheds and as such were liable to answer charges for offences under Sections 427 and 447, Penal Code. The learned Magistrate, who recorded the sworn statements of the respondents, registered a case against the petitioners for offences under Sections 427 and 447, Penal Code. After recording the evidence of the petitioners and three other witnesses examined on their behalf, the learned Magistrate framed two separate charges for the said offences against all the petitioners. The petitioners pleaded not guilty to the charges that were read over and explained to them. After framing the charges and before permitting further cross examination of the prosecution witnesses, the learned Magistrate inspected the premises on 11-12-1954. The petitioners did not examine any defence witnesses on their behalf. The learned Magistrate ultimately held that the present petitioners had trespassed into the sites in dispute and had unauthorisedly constructed live sheds in which they were living and thus were guilty of the two charges levelled against them and convicted and sentenced them as above said. It is against this decision that the present petition has been filed by the petitioners.

(3.) It was contended by the learned Advocate for the petitioners that the learned Magistrate was not justified in assuming the jurisdiction of a civil Court and proceeding to decide a dispute relating to the ownership and possession of the sites in question. He further contended that the learned Magistrate had no material on record to hold that the petitioners had removed any fencing put up by the respondents and had thereby committed mischief causing damage to the extent of more than Rs. 100 to the sites of P. Ws. 1 and 2 so as to make them liable for an offence under Section 427, Indian Penal Code. It was also urged that the learned Magistrate was not justified in inspecting the premises in dispute suo motu and forming an opinion about the age of the sheds put up on the sites and relying upon the same to come to the conclusion that the petitioners must have constructed those sheds within 12 months prior to the date of the inspection, when the respondents had not adduced any evidence worth the name to substantiate their contention that the sheds were put up by the petitioners on or subsequent to 19-4-54. There is considerable force in all these objections raised by the learned counsel for the petitioners. The respondents who were examined as P. Ws. 1 and 2 have not said a word about the value of the fencing that was alleged to have been removed by the petitioners. There was absolutely no data for the learned Magistrate to hold that the cost of the fencing was more than Rs. 100 and that the petitioners committed mischief in removing or damaging the said fencing and as such were liable for an offence under Section 427, Indian Penal Code. Similarly there was absolutely no evidence 'adduced by the respondents to prove that Rangappa, the previous owner, had delivered possession of the two sites in dispute to them and that they were in possession of them on 19-4-1954, on which date the petitioners were alleged to have trespassed into them. For reasons best known to them, the respondents did not care to examine Rangappa to prove that he had delivered possession of the sites to them. The evidence of P. Ws. 3 and 4 does not throw any light about the actual possession of the sites by the respondents and the alleged trespass committed by the petitioners on 19-4-54. It is obviously to overcome this lacuna in the evidence and to ascertain as to whether there was any truth in the assertion of the petitioners that they were in actual possession of the sites for a pretty long time and that they had put up the sheds long prior to the date of the alleged incident, that the learned Magistrate thought fit to inspect the premises. The evidence adduced by the respondents clearly indicated that the matter in dispute between the petitioners and the respondents about the possession of the sites in question was entirely of a civil nature and that respondents 1 and 2 had taken recourse to the criminal Court as a short out to get possession of the sites instead of agitating the matter in a proper civil Court and obtaining possession from the petitioners. The learned Magistrate, in my opinion, was not justified in acting on the interested, unreliable and hopelessly discrepant evidence of the respondents' witnesses and holding that the petitioners actually trespassed into the sites on 19-4-1954 and constructed the sheds on or subsequent to that date. The only important data that was available for the learned Magistrate to hold that the petitioners must have trespassed into the sites subsequent to or somewhere near about 19-4-54 was the observation that he made from the local inspection. The learned Magistrate has entirely acted upon his observations and as a matter of fact incorporated his observations and opinion in his judgment and entirely relied upon to hold that the sheds put up by the petitioners, were of recent origin and as such there was no force in the contention of the petitioners that they were living in those sheds from a long time prior to the date of the alleged incident. The learned Magistrate, in my opinion, was not justified in incorporating his opinion based on the observations he made at the time of the local inspection and relying upon those observations to hold that the petitioners must have trespassed into the sites recently or at any rate just subsequent to 19-4-1954. A Magistrate is no doubt entitled to inspect any premises after the entire evidence in the case is adduced to clear any doubt that is created in his mind about the situation of the premises or lor purposes of appreciating the evidence but has no right to entirely create evidence and to introduce it into the case for the purpose of finding persons accused of the offence guilty.