YAKUB SHEIKH Vs. KING

JUDGEMENT

(1.) This rule has been obtained by the two accused who have been convicted of having committed theft. The first accused Yakub Sheikh has been sentenced to pay a fine of Rs. 200 in default to undergo rigorous imprisonment for three months. The second accused Malek Sheikh has been dealt with in accordance with the provisions of Section 562, Criminal P. C. and released after due admonition. Half of the fine has been directed to be paid to Kalu Santal as compensation.

(2.) The case for the prosecution is that Kalu Santal was in possession of certain land as the adiar of one Charan Das Chatterjee. He grew paddy on the land and reaped it. On the date of occurrence the two accused persons came there and removed paddy and straw in spite of protests. The defence taken is a denial of the occurrence and it was contended on behalf of the defence that the land on which the paddy was grown belonged to the accused Yakub. The learned Magistrate has disbelieved the defence case and convicted the accused. On appeal the Additional District Magistrate has after criticising the judgment of the learned trial Magistrate somewhat adversely upheld the decision and dismissed the appeal.

(3.) The point raised before me is a pure point of law. It is said that the learned Magistrate has committed certain illegalities in the trial which are fatal and that therefore the entire proceedings are without jurisdiction. The facts which give rise to this contention are these: Kalu Santal lodged a petition of complaint before the Magistrate making the allegations which are the substance of the prosecution. The learned Magistrate passed an order upon the complaint in these terms : "Send this to O/C Kalna p. s. for taking cognizance under Section 379/147, Penal Code, and finishing investigation early." Upon this order being communicated to the police they investigated the case and returned a charge sheet Thereafter the accused were tried. I may mention here that on the petition of complaint being filed the complainant was not examined on oath.