MAHENDRA PRASAD SINGH Vs. STATE OF BIHAR

JUDGEMENT

(1.) This petition has been filed against the order of the learned Sub-divisional Magistrate, dated the 10th September, 1968, by which he ousted the jurisdiction of the Gram Cutcherry and himself took cognizance of an offence under Section 379 of the Indian Penal Code. The short facts leading to this petition may be summarised as under:

(2.) The complainant filed a petition of complaint before the Sarpanch of the Gram Cutcherry on the 14th September, 1966, alleging that these petitioners had forcibly cut away and removed Marua crops from some plots of Khata No. 233, situate in village Dihura, within the jurisdiction of Tikari police-station in the district of Gaya. The Sarpanch got the matter enquired into by the Mukhiya of the Gram Panchayat. After receipt of that report, the Sarpanch sent the petition of complaint to the Sub-divisional Magistrate, Gaya. The learned Subdivisional Magistrate then took cognizance under Sections 147 and 379 of the Indian Penal Code, and transferred the case to the file of a Munsif-Magistrate for trial. As against that order of taking cognizance, these very petitioners had come up to this Court with the allegation that the lands in question were the subject-matter of a proceeding under Section 144 of the Code of Criminal Procedure, and both the parties had been restrained from going upon the lands. The alleged cutting of the Marua crop by as many as 28 persons was alleged to have been done within the period of 60 days from the date of issue of the prohibitory order under Section 144 of the Code of Criminal Procedure. That matter was heard by this very Court in Criminal Revn. No. 398 of 1967 (Pat) and two observations were made. The first was that, "if the learned Sub-divisional Magistrate wants to oust the jurisdiction of the Gram Cutcherry and direct that this case should be tried by a regular magistrate, he can do so after giving sufficient reasons for the same." The second observation made was that in a case of this nature, where there had been violation of his prohibitory order, the learned Sub-divisional Magistrate should not have taken cognizance himself, but should have made a complaint against the alleged wrongdoers under Section 188 of the Indian Penal Code. As laid down under Section 195 (1) (a) of the Code of Criminal Procedure, no Court could take cognizance of an offence like this, except on the complaint in writing of the public servant concerned, or of some other public servant to whom he is subordinate.

(3.) The main point which has been argued before me is that at the time of the harvesting of the Marua crops, the complainant could not be said to be in possession of the property, as he as well as these accused persons had been restrained from going upon the land. Learned State lawyer has tried to make a distinction between the provisions of Section 144 and Section 145 of the Code of Criminal Procedure as regarding the nature of custodia legis concerning the property involved in the proceeding. According to him, under Section 145 (4) of the Code of Criminal Procedure, an attachment is effected and then only the property comes into the custody of the Court or the Magistrate; whereas under Section 144 of the Code, the possession still remains with the complainant, though he is asked not to go upon the land. In my opinion, there is not much distinction between the language used in Sections 144 and 145. When a particular party is restrained from enjoying the possession of the land, he must be taken to be out of possession for that period. This view of mine finds support from a decision of the Calcutta High Court in Osman Mistry v. Atul Krishna Ghosh, AIR 1949 Cal 632. The facts of that case appear to be on all fours with the facts of the case in hand. There, paddy had been harvested while a prohibitory order under Section 144 of the Code of Criminal Procedure was in force. It was pointed out in that case that a charge of theft could not lie inasmuch as the paddy was then not in possession of the opposite parties by reason of the fact that there was an order under Section 144 of the Code of Criminal Procedure prohibiting both parties from going on the land and exercising acts of possession thereon; and it was held that "At the time of the alleged cutting of the paddy, therefore, it cannot be said that it was in the possession of the opposite parties. An offence of theft cannot be committed unless the property is moved out of possession of a person. On this ground also the charge of theft would not be maintainable." Nothing has been shown to me against this view, or the view I had taken in the previous case. I would, therefore, once again draw the attention of the learned Sub-divisional Magistrate to the legal position obtaining in this case. If he thinks that Ms order has been violated and injustice has been done to the complainant, he may file a complaint according to the legal procedure. He himself could not take cognizance in a case like this; and so his order of taking cognizance is quashed.