1. This is a reference under Section 438, Criminal P. C., by the learned Sessions Judge manipur, with the recommendation that the order of the Magistrate convicting the four applicants (accused) under Section 447, I.P.C., and sentencing them to pay a fine of Rs. 10/- each be set aside, as the trial was illegal.
2. The case was tried as a summons case, and when the applicants were called upon to show cause under Section 242, Criminal P. C., they admitted having entered upon, and cultivated the land as they claimed the land to belong to them, even though they had knowledge that the land had been allotted to the Assam Rifles. The order of the learned Magistrate shows that he did not accept the statement of the accused as an admission of the offence and did not convict them on its basis, and in that he was right, because the statement made by the accused can by no means be taken to mean that the accused intended to plead or were pleading guilty to the charge.
But the error into which the learned Magistrate fell thereafter was that Instead of proceeding under Section 244, Criminal P. C., to hear evidence he closed the trial, examined, as he says, some old records and negatived the plea of the accused, and convicted and sentenced them as stated above. This was clearly not a mere irregularity, but an illegality, which vitiates the trial, because the accused persons were denied the right to prove their contention. The admission referred to in the last para of the order of the Magistrate, in the above circumstances cannot but mean that the reference is to the admission of having gone on the land, The learned Government Advocate, who appeared on behalf of the Government and the complainant, also conceded the point,
3. I accordingly accept the reference and set aside the conviction and sentences, and order that the applicants shall be retried by another competent Magistrate to be selected for the purpose by the District Magistrate. Manipur. Pine, if recovered shall be refunded forthwith. The applicants shall appear before the District Magistrate, Manipur, on 15-9-1956.