RAMAN BALAN Vs. STATE

JUDGEMENT

(1.) These three petitions which are by the same persons have been heard together since they involve the same question. The petitioner is the 1st accused in three cases, C. C. 758, 759 and 760 of 1958 on the file of the Second Class Magistrate, Mukundapuram,, in each of which he and 10 others have been charged by the police with offences under Sections 447 and 143 I. P. C. The petitioner undivided father holds certain lands on verumpattom, and the first informant in each of the cases claims to have been cultivating a piece of land on pankuvarom under, the petitioner's father. The accusation against the petitioner and his fellow accused in each case was that on 28-4-1958 they entered on the lands that were being cultivated by the first informants and proceeded to plough them. The first informants claimed that they were in possession of the lands, and from that springs the charge of criminal" trespass and of unlawful assembly for the purpose of criminal trespass.

(2.) The simple question is whether the first informants were in possession of the lands in question. If they were not, it follows that there can be no question of any trespass or unlawful assembly. At the very outset, it is to be observed that, although the first informants say that they were in possession, in the first information they trace their alleged possession, to their pankuvaram agreement. There is no case here (nor was there any in the courts below) that the first informants were in possession otherwise than in their character as pankuvaramdars.

(3.) It is well recognised that, as stated in Kunhayyappan v. Chatha, 9 Cochin LJ 418, a pankuvararadar has no possession of the land which he cultivates, and that his true legal character is of a! licensee. On this ground the petitioner and his fellow accused raised a preliminary objection befora the trial Magistrate to the effect that the chargesheets against them disclosed no offence whatsoever and that therefore they were entitled to an acquittal Straightaway. This objection the trial Magistrate overruled by an order dated 24-9-1958, and he adjourned the cases for trial. In one of the cases the petitioner went on revision to the Sessions Judge of Trichur praying that a report be made to the High Court under Section 438 of the Code. This request the learned Sessions Judge declined on the ground that the power of interference of the High Court resided in Section 561A and not in Section 439 and that therefore Section 439 would not apply, although, for myself, I see nothing in Section 438 (excepting perhaps propinquity and the reference in Section 439 to a report) which confines a report under that section to cases where the High Court can act under Section 439 and makes the section inapplicable to cases where the High Court has to act under Section 561A. Nor is it by any means so clear that interference cannot be under Section 439. However that might be, having failed in both the courts, the petitioner has come to this court praying that the proceedings against him and his fellow accused in the three cases be quashed under Section 561A of the Code.