PARITOSH KHAN Vs. STATE

JUDGEMENT

(1.) This Rule is directed against an order passed by the Sessions Judge of Midnapore whereby he ordered further enquiry into a case which ended in an order of discharge under Section 251-A of the Code of Criminal Procedure by a Magistrate at Midnapore.

(2.) It appears that on the 16th December, 1956 there was a first information report by one Radha Gobinda Sing against the petitioners alleging that they had unlawfully entered upon the land which was Plot No. 176 of mouza Aulara, police station Salbani, in the district of Midnapur, and cut away and removed the paddy grown thereon by the informant Radha Gobinda Singha. After investigation the police submitted a charge sheet under Sections 143 and 379 of the Indian Penal Code against the petitioners. The learned Magistrate after examining the documents and statements made by the witnesses before the police and after hearing the Court Sub-Inspector and defence lawyer discharged the petitioners under Section 251-A of the Code of Criminal Procedure, being of the opinion that there was no prima facie case under Sections 143 and 379 of the Indian Penal Code, against any of the petitioners as the statements and documents indicated that the petitioners were in possession of the land in dispute.

(3.) The learned Magistrate referred to the statements of three persons who were boundary men who stated before the Investigating Officer that the petitioners were in possession of the land in dispute. They, however, made another statement that in the previous year the father of the informant Radha Gobinda Singha had possessed the land. The police recorded the statements of three other witnesses who were labourers of relatives of the informant. The learned Magistrate relying upon their statements and upon a consideration of all the documents and statements made before the police was of the view that the dispute was entirely of a civil nature and it was no use framing a charge against the petitioners. In this view he passed an order of discharge. Against this order of discharge the complainant moved the Sessions Judge who set aside the order of discharge and directed a further enquiry into the case. The grounds which prevailed with the learned Judge were that the learned Magistrate should not have relied upon any statement or document produced by the accused persons as they were, in the opinion of the learned Judge, not such documents as were contemplated under Section 173(4) of the Code. The learned Judge thereafter thought that although the witnesses had stated that the land in question was in the possession of the petitioners, they had also stated that in the previous year the father of the informant was in possession. In this view it was the opinion of the learned Judge that witnesses should have been examined in the Court in order that it might be ascertained whether the complainant had grown the paddy in question and whether the petitioners had forcibly cut away the same. The learned Judge further held that the statements of witnesses who were close relatives should not have been discarded on that ground alone. In this connection he referred to a decision of the Supreme Court.