Lakshmi Narain, J.C.
1. The case referred to is on a private complaint. It is alleged that on 4.2.50 the accused entered wrongfully into the paddy field measuring about 5 gandas of the complainant and trampled the young grown paddy under their feet thus causing damage to the extent of Rs. 50/60 to him. When the complainant resisted he was attacked and chased upto his house.
2. As the case apparently falls under Sections 426 & 447, Penal Code, the learned Magistrate tried It as a summons case and convicted and sentenced on 22.12.51 all the accused under the above sections to a fine of Rs. 30/- each or in default to undergo rigorous imprisonment for one month.
3. On motion by the accused, the Sessions Judge, Tripura has recommended this case under Section 438, Criminal P.C. to this Court for ordering fresh trial under proper procedure after setting aside the conviction and sentence on the ground that as the amount of damage caused is mentioned by the complainant at Rs. 50/60 the offence falls Under Section 427, Penal Code and therefore ought to have been tried as a warrant case and not as a summons case.
4. It is also reported that the conviction and sentence passed against Kalipada Banerjee one of the accused is bad in law as he was not examined at any stage of the case and that neither his name appears in the complaint nor he is mentioned by the complainant in his statement before the Magistrate.
5. The complainant has assessed the damage at Rs. 50/60. It is evident that he is not definite about it. A pie less than Rs. 50/- pulls down the case from Section 427, Penal Code to Section 426, Penal Code which is a summons case. The learned Magistrate was not very much wrong in taking cognisance of the case as a summons case. He appears to have given this benefit to the accused in the absence of any definite valuation of the damage. Even it be so, it is only an irregularity which is curable under Section 537, Criminal P.C. It has not caused any prejudice to the accused.
6. I don't think the Magistrate has committed an illegality in convicting and passing sentence against the accused which should result in quashing of the proceedings. Section 35, Criminal P.C. is permissive and not obligatory.
7. The acts constituting the offence Under Sections 447 and 426, Penal Code form part of the same transaction and it was, therefore, not necessary to pass separate sentences. The offence Under Section 447 in the case is an element of the other, one sentence, therefore, is not improper. Where the act constituting two different offences form part of the same transaction, the imposition of separate sentences is not justified-Indris v. Emperor AIR 1939 Pat 349 (A).
8. The Magistrate in this case has passed the sentence Under Sections 426 and 447, Penal Code which-means that he intended to pass concurrent sentences.
9. As for Kalipada Banerjee accused is concerned his conviction on the face of it appears to be wrong. He is therefore, acquitted.
10. in so far alone this reference is accepted, otherwise it is rejected.