ASWINI KUMAR DHARA Vs. EMPEROR

JUDGEMENT

(1.) THIS is an application in revision against a conviction under Section 379, I. P. C, and the sentence of fine of Rs. 50, in a paddy-cutting case. Originally the case was dismissed; but an order of the Sessions Judge directed a. further enquiry, and, as a result, the trying Magistrate, and also the appellate Magistrate, have found that the land in question was in the possession of the complainant and also that the accused did cut the paddy. The evidence that the accused took part in the cutting of the paddy has been specially considered by both the Courts below and no question arises in revision upon that branch of the case. The application in this Court is based upon the fact that the appellate Court has paid great attention to the certified copy of a petition under Section 144, Criminal P. C, made by the complainant against, the accused. The accused, after a certain compromise in a partition proceeding appears to be the landlord of the land in question, and the petition under Section 144 was put in to show that the complainant was at that time going to take steps to prevent this landlord from coming upon the land and taking the paddy. The order made is said to be ex parte. It was an (order directing a warning to the accused land the complaint before me is that, as that order is not shown to have been {served on the accused, it may be that the whole proceedings were behind the back of the accused. I have considered the judgments of both the Courts below, and I am not of opinion that that objection ought to succeed. It was entirely for the accused to show, if he could, that this warning was never served upon him and that he had no reason to come to hear of these proceedings. If a person takes the trouble to go to a Magistrate and gets an order upon another person restraining him from doing something, prima facie it is very unlikely for him not to take steps so that the other person may know of the restraint imposed upon him and, having regard to the opportunities, which the defence had, to make this matter entirely clear to the Magistrate, I do not think on reflection that there is anything in this point. In my judgment the question is one of fact, and there is ample evidence to justify the concurrent findings of both the Courts below. The rule must therefore be discharged.