NAGENDRA NATH SINHA Vs. EMPEROR

JUDGEMENT

(1.) This is a Rule issued at the instance of two petitioners, No. 1 Raja Nagendra Nath Sinha Sahas Roy and No. 2 Nagendra Nath Das calling upon the District Magistrate of Midnapur to show cause why certain proceedings complained of in the petition, on which this Rule has been issued, should not be quashed or why such other or further order should not be made as to this Court may seem fit and proper.

(2.) The facts necessary to be stated for the purposes of this Rule are the following. Petitioner 1 is the proprietor of a jungle which he alleges is in his khas possession, and petitioner 2 is a forest guard in the employ of petitioner 1. A complaint was lodged on behalf of petitioner 1 against one Baikuntha Nath Ghose and others as accused persons alleging that they were in possession of certain stolen properties, to wit, certain logs of Wood, the allegation being that they had been taken away by theft from a portion of the jungle in the khas possession of petitioner 1. The case was tried by a Second Class Magistrate, who acquitted the accused holding that the prosecution had failed to prove beyond reasonable doubt that the trees in question had been cut from the plot which was alleged to be in the khas possession of the complainant, i.e., petitioner 1. At the same time, the Magistrate ordered the alleged stolen logs to be returned to petitioner 1. This order was made on 5 June 1933. The accused Baikuntha Nath Ghose and others preferred an appeal under Section 520, Criminal P. C, on 7 June 1933; and the Additional District Magistrate of Midnapur on the same day admitted the appeal, called for the records, directed issue of notice on the complainant and fixed 22nd June 1933 for the hearing of the appeal. At the same time, the learned Additional District Magistrate made an order staying the restoration of the properties to the complainant, i.e., petitioner 1, pending disposal of the appeal. It now appears that on account of some mistake in the office of the learned Additional District Magistrate, the order staying the restoration of the properties was not communicated to the trial Magistrate.

(3.) It is not necessary to refer to the orders that were thereafter passed from time to time by the latter, but it will be sufficient to state that eventually, on 5 July 1933, a notice issued by a Police Officer of Binpur Police Station was received by some officer of petitioner 1 whereby the said petitioner was called upon to take delivery of the trees and it was also stated in that notice that if the said petitioner failed to take delivery within three days of the said notice the same would be sold by public auction and the sale proceeds would be forfeited to Government. The notice also said that it purported to be issued in pursuance of the order which the trial Magistrate had made. On receipt of the aforesaid notice, on 7 July 1933, petitioner 2 took delivery of the logs from the President Panchayat in whose charge the said logs had been up to that time. The fact that the properties had thus been taken away by petitioner 2 on behalf of petitioner 1 was not brought to the notice of the Additional District Magistrate when he heard the appeal under Section 520, Criminal P. C. This the learned Magistrate did on 11th July 1933. On that day the learned Additional District Magistrate holding that the proper order to make in the circumstances of the case was to return the logs to the persons with whom they had been found, allowed the appeal, set aside the order of the trial Magistrate and directed that the logs in question should be returned to the aforesaid Baikuntha Nath Ghose and others. On these facts, the Additional District Magistrate, on 20 September 1933, directed the prosecution of the two petitioners for an offence under Section 403, I. P. C. He purported to take cognizance of the offence under Section 190, Clause (1), Sub-Clause (c) of the Code. It is against this order of the Additional District Magistrate that the present Rule is directed.