MAINAL HAQUE AND ORS. Vs. GANGA PROSAD SARKAR

JUDGEMENT

(1.) THIS is a reference under Section 438, Criminal Procedure Code from the Court of the Additional Sessions Judge, Lower Assam Districts.

(2.) THE reference arises out of a criminal case No. 50C of 1953 under Section 447, Indian Penal Code. The petitioner before the learned Additional Sessions Judge were found guilty and convicted under Section 447, Indian Penal Code and they were ordered to pay a fine of Rs. 20/ - each and in default to undergo rigorous imprisonment for ten days. The petitioners were also convicted under Section 143 but no separate sentences were passed under this head of the charge. The case for the complainant was that he had a plot of land measuring 41 bighas at Bariabari. It was his ancestral land and it had fallen to his share. He had grown cheena, Khasari, Kalai and paddy. The accused (petitioners) came in a body, trespassed on the land and damaged his standing crop. The accused claimed Ejmali proprietary rights over the land in dispute. The petitioners were found guilty. They invoked the re -visional jurisdiction of the sessions court and assailed the correctness of the conviction by a revision petition. The learned Addl. Sessions Judge has come to the conclusion that the convictions of the petitioners are not sustainable on the ground that the learned trial Magistrate after examining the complainant on 12th January, 1953 held local enquiry on 15th January before issuing processes for the attendance of the accused.

(3.) THE learned judge is entirely wrong in the view that he has taken of the matter. Under Section 202, Cr P. C. it was open to the learned Magistrate to enquire into the case himself after examining the complainant.