DEOPUJAN MAHTO Vs. KUKUR AHIR

JUDGEMENT

(1.) This application in revision has been referred to a Division Bench by the Single Judge before whom it in the first instance came up for hearing. The facts leading up to the application are as follows: The petitioner Deopujan was the complainant in a case regarding theft of two buffaloes which were missing on 12 August 1937 from the bathan of Deopujan and his cousin. One she-buffalo was recovered shortly afterwards; but a buffalo-calf remained missing. In October 1938 Deopujan got the proceedings revived on giving information that his buffalo-calf was in the possession of Kukur Ahir. The police found the buffalo in Kukur's possession which Deopujan identified as his; whereas Kukur said that he got the animal from suchit Ahir. On a prosecution of Kukur and Suchit, Kukur was acquitted but Suchit was convicted under Section 414, Indian Penal Code. The conviction was set aside on appeal by the Sessions Judge on 13 March 1939. The principal ground of acquittal was that the proof of identity of the animal with Deopujan's missing animal was not sufficiently cogent.

(2.) It does not appear that any order as to disposal of the buffalo was passed either by the trying Magistrate at the time when he convicted Suchit Ahir or toy the learned Sessions Judge at the time when he acquitted that accused. On 24 April 1939, Suchit Ahir made an application before the Sub-divisional Officer for restoration of the buffalo to him. Of this application the Sub-divisional Officer gave notice to the opposite party and the present petitioner Deopujan put in a reply on 26 June 1939 stating that the buffalo was no longer in his possession having been already sold to Lakhi Koeri of Gobindpur. The Sub-divisional Officer directed the matter to be put up for hearing on 13 July 1939. In the meantime on 8th July 1939 a petition was presented by Kukur Ahir associating himself with Suchit Ahir's claim and praying that the buffalo might be made over to either of them.

(3.) On 13 July 1939 however the Magistrate refused to pass any order. Kukur Ahir apparently allowed two months to elapse before taking any further steps and then he presented to the Sessions Judge on 19 September 1939 an original application in which he made no reference to the petitions of himself and of Suchit Ahir before the Sub-divisional Officer and to the orders passed on those petitions. The Sessions Judge called for the record from his record-room and without notice to any other party passed an order that the buffalo be made over to the petitioner Kukur Ahir "if she is in the custody or control of the lower Court or the police." Against this order Deopujan has moved this Court in revision and two points are taken: firstly, that the Sessions Judge had not jurisdiction to pass the order; and secondly, that such an order could not properly be passed without giving notice to the other side.