SK ALI Vs. SK MAHAMMAD ALI

JUDGEMENT

(1.) Both the petitioners have been convicted under Section 447, I. P. C. by a First Class Magistrate and each has been sentenced to pay a fine of Rs. 30/-. In default of payment of fine, petitioner No. 1 has been sentenced to one month's simple imprisonment whereas the other petitioner has been sentenced to one month's rigorous imprisonment. The petitioners unsuccessfully moved the Sessions Judge in revision against their conviction.

(2.) Petitioner No. 1 is the father of petitioner No. 2. The father of the complainant and the petitioner No. 1 are agnatic cousins. The complainant's case is that the disputed plot of land was once the property of this father and petitioner No. 1, which they sold away by a registered deed in favour of the complainant's son in early part of 1956, and the complainant, who lived separate from his father, while in possession of the said land, raised a building in one portion, which he let out to another on hire, and raised jute crops over the other portion in 1957; that the petitioners came armed with lathis, entered the jute field and damaged the jute crops. So he filed a complaint under Section 427 and Section 447, I. P. C. Cognizance was taken by the Magistrate of both the offences. But in course of trial, the learned Magistrate framed a charge only under Section 427 I.P.C., and no separate charge was framed under Section 447, I.P.C. In delivering the judgment, the learned Magistrate proceeded on the assumption as if charges had been framed under both the sections, and while he acquitted the petitioners of the offence under Section 427, I. P. C. on the ground that the damage caused was very slight, he convicted the petitioners of the offence under Section 447, I.P.C. The learned Sessions Judge, in rejecting the revision petition, took the view that the case was covered by Section 238 (1), Cr. P. C.

(3.) It was sought to be urged before me on the petitioners' side that offences under Sections 427 and 447, I.P.C. were not cognate offences, and so Section 238, Cr. P. C. had no application. He relied on Kanhaiyalal v. Feliram, AIR 1952 Madh B. 15 which related to a case in which charges had been framed under Sections 426 and 379, I.P.C. but in which conviction was ultimately based on Section 447, I.P.C. His Lordship held that the ingredients of mischief and criminal trespass were completely different from each other and hence a person charged with mischief could not be convicted for criminal trespass, because the accused would be prejudiced in making his defence. His Lordship further observed. "The general principle for the applicability of Sub-section (2) of Section 238 is that the major offence and the minor offence must be cognate offences. Where two offences involve different elements and different questions of facts, one offence cannot be said to be minor to the other." His Lordship did not consider the implication of Sections 535 and 537, Cr. P. C. Incidentally I may observe here that the learned Sessions Judge's view, that Section 238 (1), Cr. P. C. applied to the case, was entirely wrong and at best he could have considered the applicability of Clause (2) of Section 238, Cr. P. C. to the circumstances of the case.