T.N.R. Tirumalpad, J.C.
1. This is an appeal against acquittal. The appellant filed a complaint on 2-11-1955 before the Magistrate alleging that on 22-9-1955 at about 10 A.M. the respondents along with 50 to 60 other persons whose names were not known to him formed themselves into an unlawful assembly with lathis and various other weapons with a view to cause damage to the appellant's field in the village of Erani with the help of 30 or 32 cattle, 3 buffaloes and one elephant and that when the complainant went out to drive away the animals from the field, he was assaulted by some of the members of the unlawful assembly arid when two others Ramcharitra and Mahabir came to his help, some of the members of the assembly assaulted and hurt them and further that the accused stopped beating the complainant and went away when objections were raised by same of the persons assembled and also that the animals let loose by the respondents caused damage of about Rs. 200/- by trampling upon the paddy. He stated that the delay in the complaint was because the headman of the village had assured him to get the matter amicably settled.
2. The Magistrate framed charges Under Sections 447, 323 and 147 IPC against the respondents, who denied the charges brought against them. According to the respondents the whole case was false. They say that the first respondent Mahammed Majahar had obtained a decree in Court for delivery of possession from the complainant and the first respondent along with the Nazir of the Kailasahar Munsiff's Court and a peon and the other respondents had gone to the field with ploughs and cattle in order to take delivery of possession in Execution Case No. . 10 of 1952 On 22-9-1955 and the peon had posted a 'jhanta' (a post) to signify the delivery of possession and the cattle were brought in to plough the land to establish the delivery of possession. Then the appellant along with certain others obstructed the delivery of possession, and removed the post planted by the peon. Thereupon the Nazir of the Court apprehended that there will be trouble and beating if he tried to effect delivery of possession and so he withdrew from the place along with the respondents. The case of the respondents was that the appellant was the aggressor when the Nazir attempted to give lawful delivery of possession by virtue of an order of Court to that effect.
3. In the course of the examination-in-chief in his evidence, the appellant suppressed the fact that the Nazir of the Court had come along with the respondents to give delivery of possession to the first respondent. But in his cross-examination he was forced to admit that the Nazir Ramdhan Sinha J of Kailasahar Munsiffs Court had also come to the place of occurrence to take possession of the land and to deliver the same to the first respondent Mahammed Majahar, the decree-holder. Now this admission of the appellant showed that no offence Under Section 147 or 447 IPC was committed by the respondents.
If the respondents had accompanied the Nazb and entered the land for effecting delivery of possession as per order of Court, then there was no question of any unlawful assembly as they were there for a lawful purpose. It also followed that there was no question of any criminal trespass, as the respondents entered the property along with the Nazir for taking delivery of possession by virtue of an order of the Court and not with the intent to commit any offence Or to intimidate, insult or annoy any person in possession of the property.
4. There was an allegation that cattle, buffaloes and even an elephant was brought by the respondents and they trampled on the crops and damaged the crops, But there was no charge of mischief against the respondents. Though the complainant gave evidence about the presence of the elephant, the D. Ws spoke only about the cattle and they were not cross-examined on that matter.
5. The only other question was whether any offence Under Section 323 IPC was made out The appellant admitted that when the respondents and the Nazir tried to take possession of the property, he went to drive away the ploughs and the cattle i. e. he attempted to obstruct the lawful delivery of possession by an officer of Court. I can very well imagine that when he thus obstructed, there must have been somt. scuffle, In fact; the Nazir who was examined as a defence witness gave evidence that the appellant came to the field armed with a dao in his hand and that he threw away the 'jhanta1' or post which had been planted to signify the delivery of possession.
The evidence of D. W. 2 would show that after delivery was effected the appellant dispossessed the decree-holder by throwing away the 'jhanta' or post and by taking up a defiant attitude. According to the Nazir, he withdrew from the place on account of the attitude of the appellant in causing obstruction and on account of the Nazir's apprehension that there will be trouble if he attempted to effect delivery of possession.
6. It was pointed out for the appellant that the Nazir admitted that there was beating from the side of the decree-holder and that the Nazii apprehended beating as the appellant had come armed with dao and obstructed delivery of possession. From this evidence of the Nazir the appel-land wanted to make out that his case of beating by the respondents has been proved. But the charge against the respondents is not of beating the respondents, but of causing hurt to him. No evidence was adduced by the appellant to prove that he was hurt.
What one would expect, if a person wag hurt, was to get a doctor's certificate to that effect and prove it in Court. But in this case the complaint Itself, as I stated, was filed only on 2-11-1955 when the alleged occurrence had taken place on 22-9-1955. The appellant, therefore, was not in a position even to show any marks of violence. It is quite possible and I can very well imagine that in such a situation blows might have been exchanged by the opposing parties. But the Nasir withdrew from the place before matters came to a head. In any case, there is no evidence that any injury was caused to the appellant. The charge Under Section 323 also therefor falls to the
7. The Magistrate was, therefore, perfectly Justified in acquitting the respondents. My only surprise in this case is that the appellant should they had the temerity to file an appeal against the said acquittal. Not only did he obstruct the lawful execution of a decree of Court, but he had the cheek to turn round and accuse the respondents of being the aggressors, when he himself was the aggressor and prevented by his aggression the lawful discharge of the duty by the Nazir and to file a criminal complaint suppressing the fact that the respondents had gone to the place of occurrence along t. with the Nazir of the Court for the lawful execution of a process of Court.
The complaint itself, as I said, was filed nearly 11/2 months after the occurrence on the plea that the headman of the village had promised to settle the matter. The headman was not examined and the reason for the delay was not proved. It is clear that it was a most false and frivolous complaint. In such cases the Magistrate would do well when acquitting the accused to order payment of compensation Under Section 250 Cr.PC Unless such powers of granting compensation are used by the Magistrates in cases of this kind, it will not be possible to prevent the filing of such complaints.
8. There are no merits at all in this appeal against acquittal and it is dismissed.