Gokul Prasad, J.
1. This is an application to revise an order of conviction under Sections 426, 447 and 352 of the Indian Penal Code. The sentence imposed is that of a fine of Rs. 51 against each of the applicants, and the applicants have been farther bound in the sum of Rs. 500 each for a term of one year. It appears that Ganga Saran, accused, is the President of a Goshala Committee. Adjoining the Goshala premises there is a compound of Pandit Bhagwati Prasad the land of which is let out to certain tenants for building purposes. Pandit Bhagwati Prasad intends to build a grain market on that plot of land. In August 1919 Pandit Bhagwati Prasad wanted to build a compound wall. The building was opposed by the accused as the wall would interfere with their abchak. Because of this opposition, the wall was not built. On the 27th of October 1919 it seems that Bhagwati Prasad made a fresh attempt to build a compound wall. It is alleged that the masons came, built a part of the wall and then the six' accused came there remonstrated with Pandit Bhagwati Prasad and ultimately removed the bricks of the wall and put them in another place in the compound of Pandit Bhagwati Prasad. Pandit Bhagwati Prasad thereon lodged a complaint of mischief, criminal trespass and assault against the accused. As I have said above, they have all been convicted by the Magistrate under various sections. This conviction has been upheld on appeal. The applicants came up in revision and their contentions are:
(1) that a single sentence for three separate offences is not warranted by law and is illegal;
(2)(a) that the dispute was really of a purely civil nature, and, even if all the evidence for the prosecution were taken to be correct, the conviction under Section 447 of the Indian Penal Code was bad inasmuch as all that the accused did was to go to assert a civil right and not to commit mischief. A civil suit has already been filed for the determination of the rights of the parties;
(2)(b) that Bhagwati Prasad had no right to institute a complaint under Section 447 of the Indian Penal Code, because all the land had been let out to tenants on permanent leases, These leases are subsisting and, therefore, he was not entitled to possession.
2. The eases, Gobind Prasad, In the matter of the petition of 2 A. 465 at p. 467 : 1 Ind. Dec. (N.S.) 863, and Kunji Lal v. Emperor 21 Ind. Cas. 681 : 12 A.L.J. 151 : 14 Cr. L.J. 633, are relied on in support of this proposition;
(3) that the order under Section 106 of the Criminal Procedure Code was not justified;
(4) the complaint as filed was under Sections 452, 147 and 427 of the Indian Penal Code. All these cases were warrant cases and the trial should have been in the manner prescribed for the trial of such cases and the trying Magistrate's action in trying the case as a summons case was illegal and has seriously prejudiced the accused;
(5) because of certain arbitration proceedings the complainant was prevented from proceeding against the applicants in the Criminal Courts.
3. The parties to these proceedings are respectable gentlemen of Meerut and it has taken the learned gentleman appearing on either side almost three days to argue the case and the case has been fought tooth and nail before me.
4. I shall take up the fourth point first. It appears that this complaint was filed on the 4th of November 1919 and the complainant was examined the same day and the 20th of November was fixed for the examination of witnesses in support of the complaint and the case was sent to the present Deputy Magistrate, Mr. Nathu Ram, for disposal. It appears that up to the 20th of November 1919 the complaint had not put in Court the necessary diet money, etc., for issue of notices to witnesses and the case was adjourned to the 2nd of December 1919 for disposal. On the 2nd of December 1919 come witnesses were examined and others were exempted and the Court adjourned the case for the inspection of the locality. The learned Deputy Magistrate inspected the locality on the 20th of December 1919 and, having been given to understand that there was a chance of compromise, be adjourned the case to the 5th of January 1920. On that date the case was again adjourned and the Court granted adjournments from time to time and, ultimately, on the 7th of April 1920, directed notices to be issued to the accused under Sections 452, 147 and 427 of the Indian Penal Code, fixing the 19th of April 1920 provided the complainant put in the necessary talbana for the issue of summons. The case came on for hearing on the 19th of April 1920 in the presence of the complainant and of all the accused except Chaudhri Ganga Saran who was allowed to be represented by a Pleader On that date the complainant was examined, the statements of the accused taken and certain witnesses on behalf of the prosecution were examined and then a curious order was passed to the effect that, as it appeared from the statements of the witnesses for the complainant that the offences committed were of summons cases, therefore, it is not necessary to frame charges, and as the complainant wants to produce further evidence, therefore, it is ordered that 30th April 1920 be fixed for the hearing of the case. It is not very easy to understand how a very experienced Magistrate like Mr. Nathu Ram should have committed this mistake. The complaint was of offences triable as warrant cases and the heading of the commencement of the judgment shows that the accused were being tried for those offences. The examination of the accused immediately following the examination of the complainant was not justified by the procedure laid down in Chapter XXI of the Code of Criminal Procedure. However, to proceed further, the case was again adjourned to the 22nd of May 1920 at the request of the complainant. On that date it was found that, out of the witnesses who had been summoned on behalf of the complainant, Pandit Nand Kishore, Inspector, Babu Ghasi Ram and Ghansham Das, Patwari, were examined and the case was fixed for the 1st of June to enable the accused to cross-examine the witnesses for the prosecution and to produce the defence evidence. On that date an application for adjournment on behalf of the accused on the ground that their Counsel was engaged in some other Court was refused and as all the accused were not present an order was passed for warrants to issue against the absent accused. Later on, before the warrants could be issued, the accused appeared and cross-examined the witnesses for the prosecution. It will appear from the above resume of what actually happened that the whole procedure of the learned trying Magistrate was decidedly irregular if not absolutely illegal. Having commenced the trial of the case as a warrant case, regard being had to the nature of the offenses complained of, the learned Magistrate was not justified in taking down the statements of the accused immediately after he had taken down the statement of the complainant who had not even been gross-examined till then. He ought to have proceeded in the regular way, heard out the evidence for the prosecution, allowed the accused to cross-examine, if they so chose, and then framed a charge whether of the offences about which the complaint had been made or of minor offences, if only those were proved, and then charged the accused of having committed such offenses as, in the opinion of the Court, might have been proper. In that case the accused would have had, if they so wished, a further opportunity to re call and cross-examine the witnesses for the prosecution and show that they were not worthy of credit. All this opportunity of double cross-examination has been lost to the accused. They could not guess from the vague order of the Deputy Magistrate what offences they were called upon to answer and there can be no doubt that they have been seriously prejudiced in their defence. It has further been argued on behalf of the applicants that the examination of the accused before the whole evidence for the prosecution was before the Court prejudiced the defence case very seriously. Another point urged on behalf of the defence is that, although the learned Deputy Magistrate has convicted the accused under Sections 447 and 352 of the Indian Penal Code, the conviction is really one under Section 452 of the Indian Penal Code which could not have been tried as a summons case because the elements constituting an offence under Section 447 plus the elements constituting an offence under Section 352 of the Indian Penal Code go to make up the offence made punishable under Section 452 of the Indian Penal Code. This procedure of splitting up an offence triable exclusively as a warrant case into two component parts, of the said offense in order to enable a Magistrate to try it as a summons case is in my opinion, not only a mere irregularity but an illegality and a Magistrate is not justified in breaking up an offence into its component parts and trying it in a manner not warranted by law. In my opinion, the trial of this case is wholly vitiated by the above proceedings. The provisions of Chapter XXI of the Code of Criminal Procedure are mandatory and have to be followed. It is not the conviction under any particular section of the Indian Penal Code which decides the question whether a particular case is to be tried as a warrant case or as a summons case. It is the complaint and the notices issued to the accused and also the commencement of a case by a Magistrate under certain sections which decide the question whether it is to be tried as a warrant case or a summons case. I am afraid that in the present case the mode of trial is vitiated because of the illegalities, that is to say, going in the teeth of the mandatory provisions of Chapter XXI of the Code of Criminal Procedure. The complaint, the summons first issued to the accused, the heading of the first sheet of the proceedings go to show that the trial was commenced under the sections which were purely triable as warrant cases. See in this connection Empress v. Jadu A.W.N. (1886) 260; Queen-Empress v. Lajja Ram A.W.N. (1888)96 and Subrahmania Ayyar v. King-Emperor 25 M. 61 at p. 97 : 11 M.L.J. 233 : 3 Bom. L.R. 640 : 28 I.A. 257 : 5 C.W.N. 866 : 2 Weir 271 : 8 Sar. P.C.J. 160. Under these circumstances, it is not necessary for me to enter into the other points raised in this revision. I, therefore, set aside the convictions and sentences. The order under Section 106 of the Criminal Procedure Code falls with the setting aside of the conviction in the present case. Having regard to the fact that both the parties are respectable residents and that a civil suit has already been instituted for the determination of the respective rights of the parties in the Civil Court, I do not think that any further proceedings should be taken in the Criminal Courts. I direct accordingly. The fine, if realized, will be refunded.