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Gajraj Sinha and ors. Vs. Emperor - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtAllahabad
Decided On
Reported inAIR1935All938; 159Ind.Cas.306
AppellantGajraj Sinha and ors.
RespondentEmperor
Cases ReferredIn Farzand Ali v. Hanuman Prasad
Excerpt:
- - a complaint was filed against the persons named above by jwala, a peon of the court of wards, under section 447 and section 352, penal code, on 5th september 1934. the complaint was that the persons named above had been ejected on 30th june 1934, but they again came to the fields and cultivated them forcibly on 25th july 1934. he also complained that he had been assaulted by these persons. these are the two main grounds on which he recommended the setting aside of the convictions and the sentences. the rule is that if a general law is broken, any person has a right to complain whether be himself has suffered any particular injury or not......offence, namely, that the criminal trespass was committed with intent to intimidate or annoy the person in possession. section 95, clause (1), agra tenancy act is very clear. it lays down:any person against whom a decree or order of ejectment from a holding or any portion thereof has been executed under the provisions of this act, who re-enters or attempts to re-enter into occupation of the same without the written consent of the person for the time being entitled to occupy the same, shall be presumed to have done so with intent to intimidate or annoy the person in possession, within the meaning of section 441, i.p.c.8. it also provides that it was necessary for the ejected tenants (gajraj sinha and ram sinha) to have obtained the written consent of the court of wards before they.....
Judgment:

Ganga Nath, J.

1. This is a reference by the learned Sessions Judge of Shahjahanpur, recommending that the convictions and sentences of Gajraj Singh, Ram Singh, Mulaim Singh, Kjandehi, Pitam, Jhamman and Arjun, under Section 447, Penal Code, be set aside. A complaint was filed against the persons named above by Jwala, a peon of the Court of Wards, under Section 447 and Section 352, Penal Code, on 5th September 1934. The complaint was that the persons named above had been ejected on 30th June 1934, but they again came to the fields and cultivated them forcibly on 25th July 1934. He also complained that he had been assaulted by these persons. The trial Magistrate found that the persons named above, that is, Gajraj Singh and others had been duly ejected and they committed criminal trespass, and convicted them under Section 447. The learned Magistrate sentenced Gajraj Singh and Ram Singh to pay a fine of Rs. 40 each and the others to pay a fine of Rs. 10 each and ordered two months rigorous imprisonment in the case of Gajraj Singh and Ram Singh and one month's rigorous imprisonment in the case of others in default of payment of the fine. Against these convictions and sentences the persons named above, who will be referred to hereafter as applicants, filed an application in revision before the learned Sessions Judge.

2. There can be no doubt as regards the illegality of the sentence of imprisonment in case of default of payment of fine. As regards the legality of the convictions the learned Sessions Judge states that the trial Magistrate has not stated anywhere in his judgment that the applicants were aware of their ejectment and it had also not been proved that the Collector had sanctioned the prosecution. These are the two main grounds on which he recommended the setting aside of the convictions and the sentences.

3. For ejectment from land in execution of decree, it is not necessary that the applicants should have been made aware of their ejectment. Section 93, Agra Tenancy Act, provides that every decree or order for ejectment shall be enforced in accordance with the provisions of the Code of Civil Procedure, 1908, relating to the execution of decrees for delivery of immovable property. Rule 35, Order 21 relates to decrees for immovable property. It provides that where a decree is for the delivery of any immovable property, possession thereof shall be delivered to the party to whom it has been adjudged, or to such person as he may appoint to> receive delivery on his behalf, and if necessary by removing any person bound by the decree who refuses to vacate the property. It is only in the case of a decree for joint possession, that a proclamation by beat of drum is required. So in accordance with the provisions of Clause (1), Rule 35, Order 21, Civil P.C., there was no need to give any information of actual ejectment or delivery of possession to the judgment-debtors, namely, the applicants. It cannot be said that the applicants were not aware of the ejectment proceedings. All that the applicants say is that they were not present at the time of the delivery of possession, but they do not say that they did not know of the proceedings of delivery of possession to the decree-holder.

4. Under Section 190, Criminal P.C., a Magistrate may take cognizance of any offence : (a) upon receiving a complaint of facts which constitutes such offence, and (b) upon information received from any person other than a police officer, or upon his own knowledge or suspicion that such offence has been committed.

5. A complaint need not necessarily be made by the person injured, but may be made by any person aware of the offence. The rule is that if a general law is broken, any person has a right to complain whether be himself has suffered any particular injury or not. In Farzand Ali v. Hanuman Prasad (1896) 18 All 465, it was held that the complaint upon which a Magistrate may take cognizance of an offence may be made by any member of the public acquainted with the facts of the case, not necessarily by the person aggrieved by the offence to which the complaint relates.

6. This general rule is however subject to exceptions mentioned in Sections 198 and 199, Criminal P.C., where certain offences are stated to be complainable only by specified persons. Section 198, Criminal P.C., relates to offences of breach of contract; defamation and offences against married women (Sections 493 to 496, Penal Code, both inclusive) and Section 199 relates to offences of adultery or enticing a married woman (Sections 497 and 498). As regards sanction there are certain offences, which have been referred to in Sections 195, 196-A and 197, Criminal P.C., for prosecution for which sanction is necessary.

7. As regards the execution of the decree there is the evidence of Kedar Nath who is the Zilladar of the Court of Wards, and who was actually put in possession by the Amin and of Jwala Prasad complainant. Their evidence is fully corroborated by the dakhalnama Ex. P-1 which was executed by Kedar Nath and bears his eignature and has been proved by him. There is no reason to disbelieve their evidence. Their evidence also shows that Gajraj Sinha and Ram Sinha, applicants, were present at the time of the delivery of possession. The mere fact that they are the employees of the Court of Wards is not enough to discredit their evidence, especially when their evidence is fully supported by documentary evidence. It is also inconceivable that this case should have been launched and fought by the employees of the Court of Wards, as is suggested by the learned Judge, if the Court of Wards had compromised the matter with the applicants who had been ejected or had allowed them to re-occupy the land. In any case it was for the defendants to have shown that they had re-entered the land with the permission of the Court of Wards. As regards the chief ingredient of the offence, namely, that the criminal trespass was committed with intent to intimidate or annoy the person in possession. Section 95, Clause (1), Agra Tenancy Act is very clear. It lays down:

Any person against whom a decree or order of ejectment from a holding or any portion thereof has been executed under the provisions of this Act, who re-enters or attempts to re-enter into occupation of the same without the written consent of the person for the time being entitled to occupy the same, shall be presumed to have done so with intent to intimidate or annoy the person in possession, within the meaning of Section 441, I.P.C.

8. It also provides that it was necessary for the ejected tenants (Gajraj Sinha and Ram Sinha) to have obtained the written consent of the Court of Wards before they re-entered. In the absence of a written consent, their re-entry after the decree had been executed would raise a presumption that they have done so with intent to intimidate or annoy within the meaning of Section 441, Penal Code. So far therefore as the conviction is concerned, I see no reason to interfere with the order of the learned trying Magistrate which seems quite correct. As already stated, the sentence of imprisonment, in case of default of payment of fine, is against the provisions of Section 65, Penal Code, and it cannot stand. This order of the learned trying Magistrate is therefore set aside and it is ordered that in case of default of payment of fine, the applicants shall undergo rigorous imprisonment for two weeks. Let the record be returned.


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