PUBLIC PROSECUTOR Vs. MADHAVA BHONJO SANTOS

JUDGEMENT

(1.) The Sub-divisional Magistrate dealt with this case in appeal in an unsatisfactory way without finding on the majority of questions of fact and with reference only to the law.

(2.) On such findings of fact as we have and on those which for the purpose of argument, we must assume, 1st prosecution witness, a surveyor empowered to survey the Biridi Estate under Section 17(a) of Act IV of 1897, put up some boundary marks on what he thought was the estate boundary and was engaged in taking measurements on what he thought was the estate land, when accused " came across " his chain and after, asking who he was, told him not to measure. Accused, who also removed the marks already set up, were charged with offences punishable under sections 186 and 434 of the Indian Penal Code.

(3.) The Magistrate has acquitted the accused of the latter offence on the ground that the marks were not fixed by a public authority, apparently because the marks were fixed on the land in dispute between the Biridi and the adjacent Palur estates and in the possession of the tenants of the latter and the notification empowering 1st prosecution witness did not authorise him to fix marks or enter on Palur. This finding however included nothing as to the ownership of the disputed land and on adjudication that it did not belong to Biridi and therefore, as it stands, was insufficient to support the decision. And further, Section 434 deals with all marks fixed by the authority of a public servant, such as 1st prosecution witness immediately was, without distinction between those fixed correctly and incorrectly and without reference to the propriety of his exercise of his authority in the particular case. This part of the decision would therefore in any event be unsustainable.