CHIMNA RAM Vs. STATE

JUDGEMENT

(1.) THIS is a reference by Additional Sessions Judge Churu in a case under sec. 447 of the Indian Penal Code and has arisen in the fallowing circumstances:

(2.) IT appears that on 2nd February, 1949 the complainant Gulabchand left his village Dungargarh to attend a marriage party at Nimori and during his absence the accused Chimnaram and his servant Budharam entered into the bara in dispute, of which the complainant Gulabchand claimed to have been in possession for the last 17 years or so. The accused removed the thorn fencing on the eastern side of the bara, and constructed a pacca wall and door during the day and night of 3rd February 1949, and put a lock on the door and thus assumed exclusive possession of the said bara. When Gulabchand returned home on the 5th February, 1949 and came to know of these happenings behind his back, he filed a complaint on the same day in the court of the Second Class Magistrate Dungargarh. On 28th February, 1949 the accused were discharged by the trial Magistrate but on revision the learned Sessions Judge set aside the order of discharge and sent the case back to the learned Magistrate for further enquiry according to law by his order dated 6. 8. 1949. The case, thereafter, was dismissed for default and on a revision having been preferred by the complainant, it was again remanded further enquiry according to law. Eventually the case resulted in the conviction of the accused under section 447 I. P. C. who were sentenced to a fine of Rs. 100/- each and in default to undergo one month's simple imprisonment by the Second Class Magistrate Dungargarh. The learned Magistrate also directed that the bara be restored to the complaint under sec. 522 of the Code of Criminal Procedure. On appeal, the convictions and sentences of the accused were maintained by the learned District Magistrate but the order for restoration of the bara to the complainant was set aside. The accused preferred a revision against the above order to the learned Additional Sessions Judge, Churu, who has made the present reference.