HIMAJA KUMAR GHOSH Vs. RANJIT KUMAR SARKAR

JUDGEMENT

(1.) The complainant petitioner in this revisional application challenges the legality of an order dated 2-11-79 passed by the Judicial Magistrate, Hooghly Sadar, in C.R. Case No. 48/79. The opposite party No. 1 in the aforesaid case filed a petition under section 21(3) of the West Bengal Land Reforms Act, 1955 for reference of the dispute in the said case to J.L.R.O. and the learned Magistrate by the order impugned allowed the said prayer.

(2.) The petitioner filed a complaint alleging that the opposite party No.1 along with others had reaped and taken away the paddy which he had grown on the land described in the petition of complaint. In the aforesaid premises, he alleged that the opposite party committed an offence under section 379 of the Indian Penal Code. After taking cognizance and examining the complainant and his witnesses the learned Magistrate framed a charge in the manner prescribed by section 246(1) of the Code of Criminal Procedure. At that stage the opposite party No 1 made the application noted above which has been allowed.

(3.) In view of the definition of theft as given in the section 378 of the Indian Penal Code read with definition of movable property as given in section 22 of the Indian Penal Code and bearing in mind illustration (a) under section 378 of the Indian Penal Code the petitioner is to prove that he had grown the Paddy in question and by implication he was in khas possession of the land in question. If he fails to prove the above, the case he has instituted will fail. Here the question of the status of the opposite party as to whether he was bargadar in respect of the land in question or not did not arise for consideration of the court. It has been held in the case of Ananta Kumar Naskar v. State and Another, that in a criminal case of theft a reference to the officer contemplated under section 18(l) of the Land Reforms Act pursuant to section 2 1(3) of the said Act is unnecessary. It has been emphasised that in a criminal case of theft the point for decision is actual possession of the land, not the right of anybody therein. Accordingly I have no hesitation to hold that the learned Magistrate was wrong in passing the impugned order allowing the opposite partys complaint petition under section 21(3) of the Act.