BASUDEO LAL Vs. BINDESHRI PRASAD

JUDGEMENT

(1.) The petitioner was the complainant who alleged that the opposite party had committed offences punishable under Secs.206 and 427, Indian Penal Code, and the opposite party, who are four in number, were put on their trial under Section 427, Indian Penal Code, before a Sub-Deputy Magistrate with second class powers. They were not put on their trial for the alleged offence under Section 206 because the alleged offence was said to have relation with proceedings in a Civil Court and the Civil Court had. not instituted any complaint. The complainant is the agent of a party who held from the opposite party mortgage of certain property and obtained a preliminary decree on his two mortgages in 1932 and a final decree in April 1936 for sale of the mortgaged properties in pursuance of which sale was held on December 19, 1936, and the petitioner's master became the purchaser. The properties were some land and buildings standing thereon, and it is said that on January 10, 1937, the opposite party with labourers were getting vats and pressing house demolished and materials removed. On protest by the petitioner, two of the opposite party threatened to beat him and chased him away. The Magistrate thought that as manufacture of indigo has been discontinued for some years and the vats had been standing idle, it was not an offence of mischief to destroy them. He was also influenced by the fact that the sale in favour of the petitioner's master had not yet been confirmed and become final. He observed slight discrepancies in the prosecution evidence as to the particular acts to be ascribed to individual accused and he thought the prosecution case to be doubtful and acquitted all the accused. The learned Magistrate does not appear to have observed Illus. (d) to Section 425, Indian Penal Code, which runs thus: A, knowing that his effects are about to be taken in execution in order to satisfy a debt due from him to Z, destroys those effects, with the intention of thereby preventing, Z from obtaining satisfaction of the debt, and of thus causing damage to Z. A has committed mischief.

(2.) It made no difference therefore that the sale had not been confirmed and indeed it would have made no difference to the legal position if the sale had not yet taken place. In fact the petitioner's master had acquired an interest in the property long ago at the very time when the mortgage in his favour was executed, for a mortgage is stated in Section 58, Transfer of Property Act to be the transfer of an interest in specific immovable property, The sale proclamation shows that along with the land and the bungalow, the outhouses and vats were also sold, and it is not clear how anyone could imagine that the vats were not property and that demolition and removal of the vats was not destruction of the property.

(3.) The learned Magistrate seems to have made for the accused a defence which they did not set up for themselves at the trial. They, in their written statement, have nowhere denied their presence at the place where the alleged demolition of masonry was proceeding, and if they had, it would have been simple for the prosecution to examine as a witness (which ought in fact to have been done) Mr. N. N. Ganguli, Sub Deputy Magistrate, who made a local inquiry on January 14, 1937, and found that some of the accused persons were in fact present and supervising the demolition and removal of these masonry vats by labourers in. their presence. The Magistrate was quite wrong in his opinion that the dispute was only a civil one and has not appreciated the questions which it was for him to try. Although this Court does not ordinarily interfere in revision with judgments of ac- quiltal, unless there has been gross error or grave injustice, I think this is. a case in which I cannot allow the order of the Magistrate to stand. The acquittal is set aside and a re-trial ordered. It would perhaps be as well if arrangement were made for the hearing to be before a more experienced officer, but I leave that to the discretion of the Magistrate.