SUKHDEO AHIR Vs. SAMARTHI BHAGAT

JUDGEMENT

(1.) This application in revision is directed against the judgment of Mr. B, 13. Verma, Judicial Magistrate, Buxar, dated the 14th September, 1934, by which he convicted the petitioners under Section 427 of the Indian Penal Code and sentenced them each to pay a fine of Rs. 35.00 or, in fault, to suffer a fortnight's rigorous imprisonment, with a direction for payment, on realisation, of half of the fine to the complainant by way of compensation under Section 545 of the Code of Criminal Procedure.

(2.) The facts arc simple but raise an interesting and complicated question of law. At 9 A.M. on the 31st of July 1953, Samarthi Bhagat, the opposite party, lodged at the Itarhi police station a first information report to the effect that on being suddenly aroused from sleep at about 10 P. M. on the preceding night, that is to say, on the 30th of July, 1953, he noticed two persons in his paddy fields close to his house and that when he approached nearer he saw Sukhdeo Ahir and Ram Charitar Ahir, the petitioners before the Court, uprooting paddy seedlings and carrying them away in two bundles, These allegations disclosed two offences, namely, theft under Section 379 of the Indian Penal Code and mischief under Section 426 of the Indian Penal Code, the former being cognizable and the latter being non-cognizable. After investigation, the police found that the case of theft was not established but that on the evidence there was a clear case of mischief. Since the offence of mischief is non-cognizable and a police officer has no authority to investigate a non-cognizable case without the order of the Magistrate as laid down in Sub-section (2) of Section 155 of the Cr. P. C., the police submitted final report non-cognizable under Section 427 of the Indian Penal Code. Upon this report, the Sub-Divisional Officer, Buxar, took cognizance of the case under Section 427 of the Indian Penal Code and transferred it to Mr. B. B. Verma for disposal. The petitioners were accordingly summoned and put on their trial. The defence of the petitioners was a total denial of the occurrence. The learned Magistrate held that these two petitioners had uprooted paddy seedlings from the field of the opposite party and they were guilty of the offence under Section 427 of the Indian Penal Code. He accordingly convicted them as stated above.

(3.) It was first contended that the conviction under Section 427 cannot be sustained, because there was no finding as to the extent of damage caused by the mischief of uprooting the paddy. Section 426 provides for punishment for mischief generally. Section 427, however, provides for enhanced sentence where the loss or damage occasioned by the mischief is to the amount of Rs. 50.00 or upwards. According to the allegation in the first information report, the loss caused to the complainant was in the tune of Rs. 200, The learned Magistrate considered that the amount of loss had been inflated and that the damage caused was not as great as alleged. After these observations, he proceeded to convict them under Section 427 of the Indian Penal Code. There the Magistrate undoubtedly erred. It was essential to consider whether or not the offence alleged fell within the ambit of Section 427, and for this the determination of the amount of damage or loss, alleged to have been caused, by the Magistrate was imperative. The punishment under Section 427 cannot be justified in the absence of a clear finding of the extent of loss or damage. When the Magistrate did not accept the alleged amount of damage as correct, he should have recorded the finding as to the actual loss sustained by the petitioners. This omission does not, however, render the judgment invalid. The conviction under Section 427 will be altered to one under Section 426 of the Indian Penal Code. It seems the Magistrate pronounced the judgment without caring to read the provisions of Section 427 of the Indian Penal Code.