GOLAM AHIA Vs. LUTFAL HODA

JUDGEMENT

(1.) This Rule was issued against an order of acquittal of an accused person by a Magistrate, First Class, Burdwan, of an offence under Section 428, Penal Code.

(2.) It is rather surprising that a Magistrate of the First Class is totally ignorant of the Indian Penal Code or the Code of Criminal Procedure. He has riot entered at all into the facts of the case but acquitted the accused on two so-called preliminary points.

(3.) The prosecution case was that the accused had excavated earth from the land of the complainant and as earth has some value, whatever may be its actual worth, the accused intended to commit mischief under Section 426 of the Code, if facts are proved. The Magistrate does not find on the facts that no earth was excavated. Therefore it is meaningless, for the Magistrate to say that the value of the loss not having been stated by the complainant the accused must be acquitted. The Magistrate would have been justified in not trying the accused for any of the graver offences like Section 427 etc., as the value was not stated, but any value, however trifling it may be, is quite sufficient for an offence under Section 426, Penal Code, and the taking of earth from some, one's land certainly deprives him of or destroys some property which has some value. Therefore, there is no reason for an acquittal on that preliminary point by the Magistrate. He should nave gone into the facts.