RADHA MADHAB PAKRA Vs. EMPEROR

JUDGEMENT

(1.) This was a Rule calling upon the District Magistrate of Cuttack to show cause why the conviction of and sentences passed on the petitioner should not be set aside on the grounds, first, that the questions arising in the case are of civil rights and, secondly, that there was no jurisdiction to depute the Sub-Deputy Magistrate to hold the local investigation and to give his evidence in the course of the trial, and, thirdly, that as regards the second petitioner there is no finding as to his having taken any intentional part in the proceedings.

(2.) As regards the first two points, we think that the findings of the lower Court are conclusive that there is no question of civil right. The finding is clear that it was plot No. 138 from which the bamboos were cut, that it was in the possession of the complainant that the bamboos had been planted by his father and that he had the sole right to these bamboos. We need not enter into the rather inconsistent second defence that bamboos are trees and, therefore, cannot be cut except by the permission of the zemindar. Bamboos may stand on the kasht land of the zemindar and though they may in some cases be similar to trees, yet in most cases, as in this case, they can be and are grown by the tenants as a paying crop; and this was clearly laud laid out in 10 clumps for the express purpose of growing bamboos for the profit of the tenants. That being the finding and it being also held that the claim of right was a mere pretext and a sham, the dishonest intention to dispossess the complainant is apparent.

(3.) As regards the sending out of the Sub-Deputy Magistrate to hold a local investigation, it at most may amount to an irregularity, and we should have to consider, if the question arises, whether the defence had been prejudiced thereby. It is in no sense an illegality inasmuch as any person who has seen a place may give evidence in respect of it and inasmuch as the Court has the power under the Criminal P. C. to summon any witnesses at any time before judgment. But we could not support the practice of examining witnesses after the defence is closed to bolster up the prosecution if it appeared that the evidence was prejudicial. But so far from that being the case, we find that the Magistrate has held that, apart from the evidence of the Sub-Deputy Collector, there is ample evidence on the question of possession and before us the evidence of this Sub-Deputy has been relied upon by the defence for the fact that certain bamboos had strayed over the boundary into the defendants land. These we may remark in passing were only 7 bamboos and had nothing to do with the 200 which were cut away from the middle of the complainant's land. But it is clear that the only reason for which the Sub-Deputy was sent out was because the defence had deputed an Amin for the purpose of going and holding a local investigation and he was called to give evidence which it was most important to have scientifically tested. If anything could justify a Magistrate having recourse to the powers which are given to him by Section 540 of the Criminal Procedure Code, it would be in a matter of this kind where an expert, so to speak, is suddenly sprung upon the prosecution and they would have no opportunity of testing the expert's evidence. Be that as it may, we find that there has been no prejudice, and the order so far as the conviction of the first petitioner is concerned is upheld and the Rule must be discharged.