INDRAMANI PRADHAN Vs. CHANDA BEWA

JUDGEMENT

(1.) THIS revision is against the judgment of the appellate Magistrate of Cuttack maintaining the conviction of the petitioners under Section 352, I. P. C. under the following circumstances.

(2.) ON 14-6-1951, a police constable (P. W. 6) went to village Dihapahalo where the parties reside, with a view to serve a notice under Section 144, Cr. p. C. , on the petitioners directing them not to enter hi to the disputed house or to interfere in any way with its possession by Chanda Bewa (opposite party ). It was alleged that though the notice was shown to the petitioners, they disregarded the order contained in the notice, forcibly dragged out Chanda Bewa from the house and locked it up. After due enquiry, the Magistrate concerned filed a complaint for the prosecution of the petitioners under Section 188, I. P. C. , for disobedience of his order under Section 144, Cr. P. C. That case ended in acquittal on 26-2-53 in the Court of a First; Class Magistrate, Cuttack. Then a complaint was filed by Chanda Bewa against the petitioners for offences under Sections 448, 341 and 352, I. P. C. , in respect of the same incident. A separate complaint case was started on the basis of that complaint and tried by Shri M. N. L. Sarma, Magistrate Second Class, Cuttack. He convicted the petitioners under Ss. 352 and 341, I. p. C. On appeal, however, the appellate Magistrate held that the conviction under Section 341, I. P. C. could not stand in view of Section 403 (1), Or. P. C. , inasmuch as the petitioners could have been validly tried for that offence in the first trial itself, bearing in mind the provisions of Ss. 233 and 237, Cr. P. C. But he thought that the separate trial and conviction of the petitioners for the offence under Section 352, I. P. C. , namely, use of criminal force on Chanda Bewa, was legal and therefore refused to interfere with the conviction though he reduced the sentence of fine to a lesser sum.

(3.) THE main point urged by Mr. K. N. Das on behalf of the petitioners was that the separate trial and conviction of the petitioners for the offence under Section 352, I. P. C. , was also hit by Section 403 (11, Cr. P. C In support of his contention he relied on 'manhari Chowdhuri v. Emperor', 1918 Cal 406 (AIR V 5) (A ). I am however unable to accept his argument.