EMPEROR Vs. BALKRISHNA NARHAR VELHANKAR

JUDGEMENT

(1.) This is an application in revision from the decision of the First Class Magistrate of Dhulia City convicting the two accused under Sub-section 451 and 426 of the Indian Penal Code, viz., for house-trespass in order to commit an offence and also with committing mischief, and he has imposed a fine of Rs. 30 on each of the accused in connection with these offences.

(2.) Now this is not a case of house-breaking or of a criminal offence in the ordinary acceptation of the term. It is a dispute between two neighbours over what is alleged by the accused to be a party-wall belonging to himself and the complainant. The complainant in spite of a notice to the contrary had proceeded to erect an addition to this wall. The notice given by the accused warning him not to do so was given on March 11, 1924. On March 12, the complainant proceeded to add to the wall in order apparently to support a stair-case which he proposed to put up. The very same evening the accused pulled down that addition which consisted of an added or raised brick wall. On March 13, the complainant presented the present criminal complaint. On March 14, the accused filed a civil suit to restrain the complaisant from proceeding with this wall, In that civil suit he obtained an ex parte interim injunction which subsequently was made absolute pending the hearing of the suit. It was under these circumstances, viz., after the interim injunction had been made absolute, that on May 13 this criminal case came for final decision before the learned Magistrate.

(3.) Now to many judicial minds, what would seem to be a possible course to take was to decline to go into this question at any rate pending the civil proceedings, more especially as there had been no injury done to the complainant or his property, apart from the pulling down of the addition which the complainant had built on March 12. That course would have avoided the confusion that might possibly be caused if, say, the civil Court decided that the wall was a party wall, whereas the criminal Court decided that the wall belonged to the complainant. Moreover, as the accused were in no way ordinary criminals, it would naturally be regarded as an unwarranted slight on their reputation if they were convicted in a criminal Court of mischief, and still more so if they wore also convicted of such a high-sounding crime as house-trespass, which charge the learned Magistrate proceeded to add to the original charge during the course of the case. But, in fact, the Magistrate proceeded to hear the evidence, and he came to the conclusion that the wall in question belonged to the complainant. He also found in favour of the complainant that the accused actually entered the house of the complainant in order to pull down the addition to the wall, and that they did not merely scale a ladder in their own premises as the accused had stated.This latter finding of fact we naturally accept.