GANGA SARAN Vs. EMPEROR, THROUGH PTBHAGWATI PRASAD

JUDGEMENT

(1.) This is an application to revise an order of conviction under Sections 426, 447 and 352 of the Indian Penal Code. The sentence imposed is that of a fine of Rs. 51 against each of the applicants, and the applicants have been farther bound in the sum of Rs. 500 each for a term of one year. It appears that Ganga Saran, accused, is the President of a Goshala Committee. Adjoining the Goshala premises there is a compound of Pandit Bhagwati Prasad the land of which is let out to certain tenants for building purposes. Pandit Bhagwati Prasad intends to build a grain market on that plot of land. In August 1919 Pandit Bhagwati Prasad wanted to build a compound wall. The building was opposed by the accused as the wall would interfere with their abchak. Because of this opposition, the wall was not built. On the 27th of October 1919 it seems that Bhagwati Prasad made a fresh attempt to build a compound wall. It is alleged that the masons came, built a part of the wall and then the six accused came there remonstrated with Pandit Bhagwati Prasad and ultimately removed the bricks of the wall and put them in another place in the compound of Pandit Bhagwati Prasad. Pandit Bhagwati Prasad thereon lodged a complaint of mischief, criminal trespass and assault against the accused. As I have said above, they have all been convicted by the Magistrate under various sections. This conviction has been upheld on appeal. The applicants came up in revision and their contentions are: (1) that a single sentence for three separate offences is not warranted by law and is illegal; (2)(a) that the dispute was really of a purely civil nature, and, even if all the evidence for the prosecution were taken to be correct, the conviction under Section 447 of the Indian Penal Code was bad inasmuch as all that the accused did was to go to assert a civil right and not to commit mischief. A civil suit has already been filed for the determination of the rights of the parties; (2)(b) that Bhagwati Prasad had no right to institute a complaint under Section 447 of the Indian Penal Code, because all the land had been let out to tenants on permanent leases, These leases are subsisting and, therefore, he was not entitled to possession.

(2.) The eases, Gobind Prasad, In the matter of the petition of 2 A. 465 at p. 467 : 1 Ind. Dec. (N.S.) 863, and Kunji Lal v. Emperor 21 Ind. Cas. 681 : 12 A.L.J. 151 : 14 Cr. L.J. 633, are relied on in support of this proposition; (3) that the order under Section 106 of the Criminal Procedure Code was not justified; (4) the complaint as filed was under Sections 452, 147 and 427 of the Indian Penal Code. All these cases were warrant cases and the trial should have been in the manner prescribed for the trial of such cases and the trying Magistrate s action in trying the case as a summons case was illegal and has seriously prejudiced the accused; (5) because of certain arbitration proceedings the complainant was prevented from proceeding against the applicants in the Criminal Courts.

(3.) The parties to these proceedings are respectable gentlemen of Meerut and it has taken the learned gentleman appearing on either side almost three days to argue the case and the case has been fought tooth and nail before me.