T.N.R. Tirumalpad, J.C.
1. This is a reference made by the Sessions Judge Under Section 438, Criminal Procedure Code recommending that the order of conviction and sentence of the petitioner passed by the Munsiff Magistrate of Khowai Under Section 379 IPC in Criminal Case No. 18 of 1957 should be set aside.
2. The petitioner one Paltu Goswami and another Haridhan Goswami were the two accused persons before the Magistrate. Haridhan Goswami was a young lad aged 12 years. They were charged Under Section 379 IPC on a complaint filed by the respondent that on the morning of 18-8-1957 they removed some jute plants which were kept by the respondent in a pond for the purpose of wetting. They denied the offence. According to them, the pond belonged to the 1st accused and was surrounded by his paddy lands and the respondent kept his jute dipped in the said pond and all that they did was to remove the jute from the said pond in private defence of property and kept it in the adjacent paddy land. The jute was not stolen, but kept stored in the adjacent field and the respondent was requested to take it away which he refused to do. Instead of removing the jute, he rushed to Court with the criminal complaint accusing them of theft.
3. In support of the respondent's case six witnesses Were examined. After the prosecution case the Magistrate was in duty bound to question the accused Under Section 342 Cr.PC He omitted to do this by mistake. The defence then examined three witnesses and the Magistrate heard arguments and reserved judgment. Then he seems to have realised his mistake and questioned the accused Under Section 342.. Even the questioning was not done properly and the specific case as brought out by the evidence of the prosecution witnesses on which the Magistrate relied to convict the accused persons was not put to them. After the questioning, the Magistrate gave a further opportunity to the accused to examine further defence witnesses. But they did not avail themselves of that opportunity.
4. Then he convicted the accused persons and found both of them guilty Under Section 379 IPC The reason given by him for convicting the accused persons Under Section 379 was that the pond in which the jute was kept by the respondent belonged to the Government and not to them and that therefore they were guilty Under Section 379 of theft of the jute. He added that though the removal was not done for any wrongful gain for the accused, it had caused wrongful loss to the respondent and that was sufficient Under Section 379 to convict them.
5. Accordingly, he convicted both of them. He sentenced the accused Paltu Goswami to 20/- rupees fine and in default to 14 days' R. I. He however did not sentence Haridhan Goswami, the other accused on the ground that he was a lad of 12 years and acquitted him.
6. The Sessions Judge has now referred this matter to this Court on the ground that the omission of the Magistrate in questioning the accused Under Section 342 after the closure of the prosecution case has. vitiated the entire trial and prejudiced the accused persons and that therefore the conviction and sentence of Paltu Goswami should be set aside. Another matter which he has pointed out is that the accused Haridhan Goswami has not been properly described as his real name was Haridhan Goswami alias Pralay Kanta Goswami and that the misdescription' was a gross irregularity. Thirdly, he has pointed out that the learned Magistrate had no jurisdiction to acquit the said Haridhan Goswami after having found him guilty of the offence and that he could at best have dealt with him Under Section 562 Cr.PC
7. With regard to the first point raised by the Sessions Judge namely, that the omission to question the accused Under Section 342 Cr.PC immediately after the closure of the prosecution case vitiated the entire trial, I am not prepared to agree with him. No doubt, it was a serious irregularity and the Magistrate himself has admitted that it was a mistake on his part. But the mistake was detected by him before delivery of the judgment and immediately he questioned the accused Under Section 342 and he gave an opportunity to the defence to examine further witnesses which they did not avail themselves of. Hence, I am unable to see any failure of justice- reason of the said irregularity. Section 537 Cr.PC would, therefore, cure the defect. This point was also not pressed by the counsel for Paltu Goswami in his arguments before me,
8. However I must point out that the questioning of the accused persons has been extremely perfunctory. It has been pointed out in a number of decisions of the Supreme Court that the accused must be given a chance to explain the evidence against him. In this particular case the Magistrate relied on the evidence of the prosecution witnesses that the pond was a dried-up streamlet. From this evidence the Magistrate came to the conclusion that the pond belonged to the Government and that the case of the accused that it belonged to them was raise and that in removing the jute from the pond which was Government property the accused committed the offence of theft. It was, therefore, the duty of the Magistrate to put this specific evidence of the prosecution witnesses as well as his own inference on the said evidence that the pond was Government property to the accused and give them a chance to explain the said evidence.
The Magistrate has remarked that the defence did not produce even a scrap of paper to prove their title to tile pond. One fails to see how the defence can be expected to do so, unless the Magistrate questioned them on that point and gave them a chance to explain and to produce their evidence. In that connection, I must also say that there is no mention in the complaint that the pond belonged to the Government. The complaint simply mentioned that the jute was kept dipped in water and that the accused removed the jute from the water. If, therefore, tile new case developed by the prosecution witnesses was not put to the accused Under Section 342 the Magistrate cannot rely on such evidence in his judgment for convicting them unless he puts the case specifically to them in questioning them Under Section 342 and gives them a chance to explain and if necessary adduces defence evidence. If he omits to do so, then it must be held that there has been failure of' justice.
9. In the same connection, I must also state that the appreciation of evidence by the Magistrate has been extremely faulty. Even the complainant and his witness P.W. 2 in their evidence admitted that the pond was surrounded on all the four sides by the lands of the accused. It would follow from this that, even if the pond belonged to :the Govt. the respondent will have to pass through the land of the accused to reach the pond and that the accused had therefore every right to prevent it. When we come to the evidence of V. W. 5 we find him stating that the pond which was a marshy land belonged to the accused. It is surprising that the Magistrate did not even advert to this evidence of P.W. 5 in .his judgment.
It this evidence is true, the accused were completely absolved from any charge of theft, as they were entitled to remove the jute dipped in their pond and no question of theft at all would arise. One is simply surprised that the Magistrate should ignore this evidence altogether and in spite of such positive evidence come to the conclusion that the pond was a Government property. No prosecution witness had stated that it was Government property.
10. The evidence of the prosecution witnesses was that by the user of the pond for dipping their jute for the past some years they have acquired a kind of right to dip their jute in the said pond. This is a matter entirely for the Civil Court to decide and no Magistrate on such evidence can find the accused persons guilty of dishonest removal of property.
11. Thus, though I am not prepared to agree with the Sessions Judge that the delay in questioning the accused Under Section 342 by itself has vitiated the entire trial, I must hold that the omission of the Magistrate in 'the questioning of the accused persons Under Section 342 to put the specific prosecution case regarding the pond which was relied upon by him in order to convict the accused was a gross irregularity on his part which occasioned failure of justice and hence vitiated the entire trial.
12. Another question arises namely, whether even granting that the pond belonged to the Government the accused could have been held guilty Under Section 379. All that the accused did was to remove the jute from the pond and keep it outside. No dishonest intention was proved against them. There was admittedly a dispute between the accused and the villagers regarding the use of the pond for dipping. In fact, P.W. 6 had deposed that the accused protested against the use by the P.Ws. and other villagers of the pond for wetting their jute, on the ground that such use would damage the paddy land of the accused which surrounded the pond. P.W. 8 admitted that it was because of this protest that the complainant lodged the complaint. One fails to see how in the face of this evidence of P.W. 6 the Magistrate 'could have convicted the accused persons of theft.
13. The respondent was simply making use of the Criminal Court in order to get a finding from the said Court regarding the civil dispute and this was attempted to be done by bringing a charge of theft.
14. There was a bona fide dispute about the pond. The removal of the jute was done openly by the accused in the very presence of the complainant and they simply kept the jute outside the pond. D. W, 3 who is a teacher in the Government School stated that the accused told the complainant to take the jute away. But the latter refused to do so. The evidence of the complainant also was that he wanted to take back the plants to the pond for wetting after the accused had removed them, but that the accused resisted the attempt. It is clear therefore from the evidence of the respondent himself that he has not been kept out of possession of his property or deprived of his property and hence no wrongful loss has been caused to him within the meaning of Section 23 of the IPC It is clear from the said evidence that no question of theft Under Section 379 at all arose in this case. The finding of the Magistrate on the evidence on record is utterly perverse and has to be set aside even on the merits.
15. With regard to Haridhan Goswami it was necessary to have described him properly when framing a charge against him. It is seen that he has sot two names and he has signed as Pralaya Kanta Goswami. The Magistrate would have done well to give the correct name of the accused when framing a charge against him. This is not a material irregularity in this case, as there was no dispute about the identity of the accused. Hence that by itself would not warrant the setting aside of the conviction.
16. The finding of the Magistrate was that Haridhan Goswami was a lad of 12 years. I take it therefore that he was past 12 years of age. If he was below 12 years of age and if there was proof that he had not attained sufficient maturity of understanding to judge of the nature and consequences or his conduct on that occasion, then the Magistrate could not have convicted him, as Section 83 IPC would then apply. There is no such evidence or finding by the Magistrate. As he has been convicted, I take it that the Magistrate was satisfied that Section 83 IPC did not apply. Having convicted him, it was the duty of tile Magistrate to have passed a sentence, as sentence must follow a conviction. The exception to that rule is Section 562 of the Cr.PC which states that when any person under 21 years of age is convicted of an offence not punishable with death or transportation for life, and no previous conviction is proved against him, the Court may, instead of sentencing him at once to any punishment, direct that he be released on his entering into a bond to appear or receive sentence when called upon during a period to be fixed by the Court.
The Magistrate certainly committed a mistake in not following this Section and in acquitting the accused. One fails to understand how there can be a conviction and acquittal by the same judgment. The Magistrate must be more careful in his work. He will do well to acquaint himself with the provisions of the Indian Penal Code, and the Criminal Procedure Code. However, as I am setting aside the conviction of both the accused persons, we need not now upset this final order of acquittal of this Haridhan Goswami. It need be only stated that the stigma of conviction by the Magistrate shall not stand against Haridhan Goswami.
17. From what I have stated above, it follows that the conviction and sentence in this case cannot be allowed to stand. The conviction and sentence passed by the Magistrate against Paltu Goswami and the conviction of Haridhan Goswami are set aside and both the accused persons are acquitted.