JUBBAR ALI MOLLA Vs. SARWAR LASKAR & ORS.

JUDGEMENT

(1.) The petitioner had filed a complaint against opposite parties Nos. 1 to 6 in the Court of a competent Magistrate alleging that they had harvested the paddy of a certain plot which was grown by the former. The learned Magistrate took cognizance on the petition of complaint and summoned the aforesaid opposite parties under sections 147/379, I. P. C. In course of trial the accused persons took a defence that they were bargadar in respect of the land and the learned Magistrate, by an order dated 29th May 1981, held that a reference under section 21(3) of the West Bengal Land Reforms Act should be made to the Authority mentioned in section 18 (1) of the Act for deciding the question whether the accused persons were bargadars as alleged. This order is sought to be revised on the ground that the learned Magistrate had committed a gross error because the question whether the accused persons were bargadars or not was not relevant for decision of the case and the only question before the learned Magistrate was whether the petitioner had grown the paddy harvested by the accused persons.

(2.) The learned Advocate for the petitioners has relied upon the decision of a Division Bench of this Court in Ananta Kumar Naskar Vs. State and others, (1979) 2 Cal HN 123 , in support of the contention that the alleged legal character of the accused persons was not a matter for consideration by the criminal Court in a case under section 379/147, I. P. C. In answer to this contention, the learned Advocate for the State has argued that in a criminal case for theft of crops, bona fide claim of right is a valid defence and therefore if the accused persons raised a question that they harvested the crop as bargadars, the criminal court should make a reference under section 21(3) of the West Bengal Land Reforms Act. After giving most anxious consideration, I find myself unable to share the view of the learned Advocate for the State. In a case like the present one, the criminal Court is concerned with the question whether the paddy was grown by the complainant and harvested by the accused persons and not with the supposed legal character of the latter. The learned Advocate for the State had contended that if at the stage of calling upon the accused to enter upon defence, he takes the plea that he is abargadar in respect of the land in dispute, the criminal court has no alternative but to make a reference under section 21(3) of the West Bengal Land Reforms Act for decision regarding the alleged bargadarship of the accused. This argument does not appear to be convincing because even if the accused takes the plea as aforesaid, the question will still remain whether the crops were grown by him and this being the primary question, the Magistrate need not address himself the question whether the accused was a bargadar. Hypothetically, if in a case, evidence is adduced on behalf of the complainant to bring home the charge under section 379, I.P.C. for theft of standing crops and the accused at the time of entering upon the defence, states that he is a bargadar in respect of the land, it would not be enough to resist the charge in the absence of evidence that he actually grew the paddy. Therefore, there cannot be any manner of doubt that it is really cultivation of the land which is the prime consideration in a case like this and not the legal character of the accused in respect of the land. To take another hypothetical case, if a bargadar is ousted and the land is cultivated by the owner or anybody else, but the crop is harvested by the ousted bargadar, he would still be answerable for a charge of theft of crops notwithstanding the legal character with which he may be clothed. This again shows that the criminal court is concerned only with the question as to who had actually grown crops and Dot whether the accused had a legal right to grow the same as a bargadar. Therefore, I am firmly of the opinion that no reference under section 21(3) of the West Bengal Land Reforms Act was called for and the order passed by the learned Magistrate cannot be sustained. The learned Advocate for the State has also argued that the order under revision being interlocutory in nature, this Court ought not to interfere in revision. Since it is found that the learned Magistrate had passed an illegal order and without jurisdiction, the bar to entertain revisional application in respect of interlocutory order is not attracted.

(3.) For reasons stated above, the Rule is made absolute. The order passed by the learned Magistrate on the 29th May, 1981 is set aside. The record be sent down at once. The learned Magistrate is directed to dispose of the proceeding expeditiously. Rule made absolute and order set aside.