T.N.R. Tirumalpad, J.C.
1. This is a reference by the Additional Sessions Judge (II) Manipur, made at the instance of 5 petitioners who were convicted under Sections 143 and 447, I.P.C. and sentenced to fine of Rs. 30/- each under each of the counts by the S.D.M. Thoubal.
2. The case against the petitioners was that on 13.9.59 they formed themselves into an unlawful assembly with the common object of criminal trespass into the lands of the respondent, namely patta Nos. 127/50 and 127/201 and that they actually committed criminal trespass. In support of the prosecution, 6 P. Ws. were examined. The defence of the petitioner was a denial of the trespass.
According to petitioners 1 to 3, the lands in dispute were their ancestral properties and had been to their possession for 12 years, while according to petitioners 4 and 5, they never entered on the lands. They ail said that the complainant had he possession of the said lands. It may be mentioned here that there were proceedings under Section 145 Cr.P.C. against the petitioners at the instance of die complainant and that an order confirming the possession of the respondent-complainant was passed by Shri M.C. Roy, First Class Magistrate, Manipur, on 19.8.1959.
Thus, we have to take it that the complainant wan in possession as late as 19.8.1959. We may also fairly bike it therefore that on 13.9.1959, the date of the occurrence also, the respondent was in possession of the disputed lands. The petitioners admitted that the order under Section 145, Cri.P.C. was passed against them on 19.8.1959. But they would say that even before that order was passes they had harvested the crops from the lands.
One is unable to know what exactly is the import of that statement. The time for harvest had not yet come when that order was passed as harvest usually took place in the month of Poinu (November-December). Actually, according to the respondent, he was making arrangements for transplantation of seedlings when the trespass took place.
3. Anyway, both the lower Courts have dealt with the evidence in the case and were satisfied that the petitioners had formed themselves into an on-lawful assembly with the common object of committing criminal trespass and that they actually committed criminal trespass on the lands. I may also say that the learned Additional Sessions Judge has not referred the matter to this Court on the merits of the case and that he agreed with the findings of the Magistrate, His reference was on the question that the petitioners having been convicted and sentenced under Section 143 I.P.C. they should not have been further convicted and sentenced under Section 447 I.P.C. His argument was that since the common object of the unlawful assembly was to commit criminal trespass and since the petitioners were convicted for that offence, they should not have been convicted again for the actual criminal trespass which they committed in furtherance of their common object He has relied on Section 71 I.P.C. for this.
4. I am unable to see how Section 71 I.P.C. would enter into the picture at all. Section 71 states as follows:
Where anything which is an offence is made up of parts, any of which parts is itself an offence, the offender shall not be punished with the punishment of more than one of such his offences, less it be so expressly provided.
Where anything is an offence falling within two or more separate definitions of any law in force for the time being by which the offences are defined fir punished, or
Where several acts, of which one Or more that one would by itself or themselves constitute am offence, constitute, when combined, a different offence.
the offender shall not be punished with a more severe punishment than the Court which tries him could award for any one such offences.
Perhaps, the Additional Sessions Judge has relied On the first paragraph of the section to say that punishment should have been given only for one Offence. But that paragraph deals with a case where there are several parts to an offence, of Which any of the parts may itself amount to an offence. In such a case, the offender cannot be punished with the punishment of more than one Of such offence But that offences under Sections 143 and 447 I.P.C. are not of that category. For an offence under Section 143, what is required is the membership of an unlawful assembly as defined under Section 141 I.P.C. An assembly is designated an unlawful assembly, if the persons composing the assembly had one or more of the common object mentioned in that section. In our present case, the common object was to commit criminal trespass into the field of the respondent. Section 447 has no reference to any unlawful assembly. The offence under Section 447 is criminal trespass as defined in Section 441, i.e. entry into or upon property in the possession of another with intent to commit an offence or to intimidate, insult, or annoy any person in possession of such property. Thus the criminal trespass is this case, cannot be said to be a part of the offence of being a member of the Unlawful assembly. Criminal trespass need not, have been committed actually, to constitute an offence under Section 143, even though the common object of the assembly may have been to commit criminal trespass.
5. The learned Additional Sessions Judge has relied on the decision Bhup Singh v. Emperor 8 Cal WN 305. In that decision, it was held that an accused could not be convicted and sentenced for criminal trespass under Section 447 I.P.C. in addition to a conviction and sentence under Section 147 I.P.C. the common object of the riot and the intention in the criminal trespass being substantially me same in the case., That decision was based an certain illustrations given under Section 35 Cr.P.C. before the amendment of that section in 1923. Those illustrations have now been repealed. Thus the view taken in that decision will not apply present.
Further in the present case, there is no conviction under Section 147, but only under Section 143. Under Section 147, there must have been rioting which meant that the criminal trespass must also have been committed in prosecution of the common Object of the unlawful assembly or with the intention mentioned in Section 441, I.P.C. But under Section 143 I.P.C. the punishment is for the fact of being a member of an unlawful assembly. It is not necessary that the common object of the unlawful assembly, namely, criminal trespass must have been carried into effect. Thus, no actual criminal trespass was at all necessary for a conviction under Section 143 I.P.C. Hence, that decision cannot apply to our present case.
6. I may here refer to the later decisions office Calcutta High Court after the amendment of Section 35 Cr.P.C. in 1923, namely, the decision Kanchan Molla v. Emperor AIR 1925 Cal 1015 and Aftan Fakir v. Israfil Khan 54 Cal WN (2 DR) 311, and also to the Sind decision Baijnathsing Attarsing v. Emperor AIR 1939 Sind 76 which have taken a different view from that in 8 Cal WN 305. Thus, there is nothing wrong is convicting and sentencing a person separately under Sections 143 and 447 I.P.C. The reference cannot be accepted.
7. It was however argued for the petitioners that on the evidence adduced for the prosecution, the petitioners should not have been convicted under either section. I am not prepared to go into the details of the oral evidence as both the lower Courts which have gone into the matter have found that the petitioners formed themselves into an unlawful assembly with the common object of committing criminal trespass and that they actually committing criminal trespass My attention was drawn to certain discrepancies in the evidence of the P. Ws. But those discrepancies were dealt with by the Magistrate and he did not consider them as in any way detracting from the truth of their evidence.
8. It was next pointed out that the two lands, namely, patta Nos. 127/50 and 127/201 were not contiguous lands as seen from the attachment list, that there could not have been criminal trespass in two such separate lands and that the prosecution witnesses did not make it quite clear In which of the two lands there was criminal trespass. This matter was not brought to the notice of the lower Courts. The case of the respondent was that the two lands were contiguous lands. P.W. 6 had, in fact, stated that the patta lies in a compact area. P.W. 1 also had said that the dispute lands consisted of 3 plots lying touching each other. Even the petitioners in their statements before the Court did not say that the two lands were *0l contiguous. Hence, in revision, I cannot accept the new point raised for the first time regarding which there has been no reference to this Court by the Additional Sessions Judge.
9. I see no merits at all in this revision petition and reference. It Is dismissed.