T.N.R. Tirumalpad, J.C.
1. The petitioners were convicted by the first class Magistrate, Sadar under Section 379, I. P.C. and sentenced to pay a fine of Rs. 25/- each. They filed a revision before the Sessions Judge. But the Sessions Judge did not consider it a fit case to make a reference to this Court. Hence, the petitioners have come up directly in revision to this Court.
2. The case against the petitioners was that on 26-9-1958 they along with certain others entered the laud of the respondent 3 kanis in extent in which he had raised jute crops, harvested the Jute crops thereon and also removed certain harvested crops left on the land by the respondent. The respondent filed the complaint in Court only on 30-9-1958. The defence of the first petitioner was that the said land belonged to him and was in his possession for 4 or 5 years before the occurrence and that he Had raised the jute crops thereon and he admitted having cut and removed the said jute crops, but it was even before the alleged date of occurrence. The defence of the other two petitioners was that they were not present and did not know anything about the occurrence.
3. After the framing of the charge, 4 P.Ws. were examined in January, 1959 and 2 defence witnesses were examined on 31-8-1959. Then the Magistrate posted the case for arguments to 14-9-1959 and on that date heard arguments partly and adjourned It to 6-10-1959. But on 6-10-1959, he was busy otherwise and so it was again adjourned to 2-11-1959 for further arguments. On that date, the Magistrate heard arguments and posted the case for judgment to 24-11-1959. But judgment was not delivered on 24-11-1959 or on 14-12-1959 or 30-12-1959 to which dates the case was further adjourned for judgment but only on 19-1-1960 convicting the accused persons as stated above with fine of Rs. 25/- each. I find from the order-sheet of the Magistrate that even though his sentence was only one of fine, he still insisted on the petitioners giving bail for the payment of the fine before he would release them and further that he fixed 13-2-1960 for the payment of the fine and that when the petitioner did not appear, he forfeited their ball bonds and Issued) notice to the sureties to pay the penalty. He did not appear to have taken further action on the matter because in the meantime, the papers were called for by the Sessions Court.
4. Before I deal with the merits of the case, it is necessary for me to say something about the manner in which the proceedings were protracted before this Magistrate. It is the sad lot of the persons who are hauled up before the Criminal Courts in this Territory to have their cases protracted over long periods, because most of the magistrates who deal with the cases are executive magistrates, the major part of whose time is devoted for executive work. The result is that the trials take a very long time and unnecessary adjournments are made with the result that accused persons are harassed in having to attend the Courts again and again on each of the adjourned dates. It is not also an unusual occurrence in the magistrate's courts that for some hearings if the accused persons or any of them happened to be absent, proceedings under Section 514, Cr.P.C. are started with the result that the case is further delayed. All this can be avoided if full-time magistrates are appointed to hear these cases at least in places like the Sadar and in other sub-divisional headquarters where the number of cases will be large.
5. It is seen from the present case that after the prosecution witnesses were examined on 30-1-1959, the examination of the accused took place on 5-6-1959 after five further adjournments and that the 2 defence witnesses were examined on, 31-8-1959 after 4 more adjournments. It is a pity that the magistrates do not realise the harassment to which the accused persons are put to not to speak of the complainant. In having to appear in the Court again and again with no hope of the case being taken up. They should post cases to dates on which they will be in a position to take them up.
6. Whatever may have been the reasons for the adjournments before 31-8-1959, it was wrong on the part of this magistrate after the trial was over to have further delayed this case by another 5 months for hearing arguments and delivering judgment. This was a very simple case in which only 4 P.Ws, and 2 D.Ws. have been examined. The magistrate could have heard the arguments on the very same date when the evidence was closed and delivered judgment within a week from that date. But even the hearing of arguments in this simple case was protracted for 3 months after 3 adjournments and piece-meal arguments were heard. Even after the arguments were over, it took more than 2 1/2 months to pronounce the judgment in this simple case. Such dilatoriness has to be condemned. I may particularly mention one of the dates to which the case had been posted for judgment namely, 14-12-1959. On that date the judgment was not delivered as it was not ready though 1 1/2 months had passed after arguments were heard. It happened that two of the accused did not appear on that date. As he was adjourning the case, because the judgment was not ready, he could have directed that the accused should appear on the adjourned date. But this magistrate directed warrant of arrest to issue against them.
7. It is a pity that this magistrate did not realise to what inconvenience he was putting the accused Decisions by delaying the delivery of judgment for no apparent reason. Normally in Criminal cases when once the treat is over the arguments should be heard then and there and the judgment should never be delayed by more than a week. In difficult cases, a period of two weeks after the closing of the evidence can be allowed for hearing the arguments, and a further two weeks for delivery of the judgment. Any further delay either in hearing arguments or in delivering the judgments cannot be permitted. Such delay in hearing arguments and in pronouncing judgments makes the magistrates forget the evidence and forget the arguments and the very long delay may amount to gross miscarriage of justice. The magistrates will bear this in mind. this Court had already issued circulars to all the magistrates stating that reports should be sent to this Court in cases of such delays in hearing arguments and In delivery of judgments. Strict notice will be taken by this Court of such delays.
8. It is not known under what provision of law this magistrate called upon the petitioners to give bail for their release after they were sentenced to pay the fine. There is no provision in the Criminal Procedure Code by which the magistrate can take bail from a person convicted and sentenced to fine and the magistrate cannot refuse to release a person before the payment of the fine or take bail for such release. The provision for the realisation of a fine imposed as a punishment is contained in Sections 386 and 387 of the Criminal Procedure Code and a magistrate has therefore, no power to insist on bail from an accused person or to direct him to appear in Court for payment of the fine Courts are guided by law in such matters and they should not go beyond the provisions of law.
9. Coming now to the facts of this case, i am sorry to say that neither the magistrate nor the Sessions Judge appear to have dealt with this case as a Criminal case. They seem to have read the evidence of the P.Ws. and the D.Ws. as if in a Civil case and tried to assess the said evidence and find out as to whether the case of the complainant or the case of the accused was the more probable one and having come to the conclusion that the prosecution evidence was the more reliable one, in spite of the serious discrepancies pointed out, they proceeded to convict the accused. This is certainly not the way to deal with a Criminal case. It is the duty of the prosecution to bring home the offence beyond any possibility of doubt to the accused and it is only in such a case that the accused can be convicted.
10. The question to be decided in this case was whether it was the complainant who had raised the jute crops on the land in question. It was admitted that the complainant had no title to the land and that it was the khas land of the Government. The complainant said that he raised the jute crops. The first petitioner said that it was he who was in possession of the land and who raised the said jute crops. What the lower Courts had to see was whether the complainant had proved beyond doubt that the said jute crops were raised by him. No doubt the 4 P.Ws. stated that it was the complainant who raised the crops. But there was no independent witness among the P.Ws. and it is not known how the lower Courts accepted their evidence. Particularly in a case where the complainant admits that he had no title to the land and that it was khan land and that he unauthorisedly occupied the land and raised the crops, there must be very reliable evidence in support of the story. The complainant admitted in his evidence that all the P.Ws. examined by him were living with him in the same house. They are all related to the complainant. P.W. 3 is the brother-in-law of P.W. 1, the complainant. P.W. 2 is the brother-in-law of P.W. 3 and P.W. 4 is the son of the mternal uncle of P.W. 3 and all of them admittedly lived in the same house with the complainant. The evidence of such wit- nesses in support of the complainant cannot be characterised as disinterested evidence.
11. Again, in the complaint and in the sworn statement, the complainant stated that the accused took away the jute from 3 kanis of land but in cross-examination, he said that he had jute only in 2 kanis of land. P.W. 2, on the other hand, said that the jute was taken away from 2 to 2 1/2 kanis of land. Thus, it would appear that the prosecution had no definite case even about the extent of land on which the jute was raised. This goes against the story of the complainant raising the crops. When we come to the evidence of the actual raising of the crops P.W. 1, the complainant, said that he sowed the jute in the month of Sravan and Bhadra, whereas P.Ws. 2 and 3 said that it was sown in the month of Chaitra or Baishakh and that what took place in Sravan was the weeding. Thus there was no consistent case for the prosecution, even about the sowing, not to speak of the extent in which the jute crop was raised.
12. The defence, as I said, was that the first petitioner who had raised the crops had removed the jute even before the alleged date of occurrence. When we come to the alleged time of occurrence, we find that the complainant had not mentioned the time of occurrence in his complaint. In his sworn statement he said that the occurrence took place about 4 to 5 P.M. on 26-9-1958. But in his cross-examination, the complainant said that the accused were cutting the jute from the morning up to 3 or 4 P.M., while P.Ws. 2 and 3 were definite that the jute was cut at about 3 P.M. on the date of occurrence while P.W. 4 said that the jute was cut even in the morning of the date of occurrence. Thus, there was no consistent case about the time of occurrence which gain shows that the occurrence which was spoken to by only the relatives of P.W. 1, who were all living in the same house with him was an utter myth. It is again impossible to believe that the complainant and his relatives would all have stood by when the petitioners were cutting and carrying away the jute, if in fact, the jute had been raised by P.W. 1. It is significant in this connection that the complaint was filed only on the fourth day after the alleged date of occurrence. It is a pity that these vital matters were not properly considered by the lower Courts. Their appreciation of evidence is utterly faulty even to the extent of perversity.
13. The defence, on the other hand, examined 2 witnesses who were not shown to be related to the petitioners in any way. They were both living near the land in question, Their evidence was disbelieved by the lower Courts, because when the description of land as given in the complaint was read out to them, they were not able to Identify the land. I am surprised at this comment by the lower Courts, because it is impossible for any person to identify the land from the description given in the complaint, as the land is simply described therein as bounded on the four sides by mura. One does not know how anybody can identify a land from such a description. On the other hand, I find that the defence witnesses described the boundaries of the land in the actual possession of the complainant, which was same distance away from the land in question. I for one, was impressed with the evidence of the defence witnesses who were independent witnesses.
14. This is a case where the petitioners should never have been convicted by the lower Courts and I can only say that the judgment of the magistrate as well as of the Sessions Judge is totally perverse. The prosecution has not proved that the complainant raised the crops in the land. The revision petition is, therefore, allowed and the conviction and sentence are set aside. If the fines have been realised, they will be refunded to the petitioners.