1. The three petitioners were convicted under Sections 379 and 352, I.P.C., and sentenced to pay a fine of Rs. 15/- each in default to undergo rigorous imprisonment for two weeks each by the Sub-Magistrate of Kudala. On appeal, the Additional District Magistrate of Ganjam set aside the conviction under Section 352, I.P.C., but maintained the conviction under Section 379, I.P.C., and reduced the sentence to a fine of Rs. 10/- each.
2. The prosecution case was that on the 26th of September, 1949 the three petitioners (who are brothers) cut and removed five branches of Babul trees standing on the southern ridge of the complainant's land in. village Pituapali, Police Station Kudala and in his possession. The petitioners admitted the cutting of the branches but pleaded that the trees belonged to them, haying been planted there by their father and that they acted, therefore, in exercise of their right.
3. In view of the admitted cutting of the branches of the Babul trees the main question for consideration by both the Courts was whether the trees were in the possession of the complainant or else whether they were in the possession of the petitioners. The complainant examined himself and five other witnesses to prove his possession over the trees. He stated that the trees were on the ridge for about twelve or thirteen years and that he used to cut branches from the trees now and then and thus exercise his right of possession over the trees. P.W. 5, Sola Padhan further states in his cross-examination that two years ago the complainant removed some branches of the said trees when they fell down due to strong breeze.
4. The petitioners also examined three witnesses on their behalf to show that the trees were in their possession. Both the Courts however preferred the evidence of the complainant's witnesses. Doubtless the lower appellate Court as a final Court of fact did not discuss the evidence of possession in the manner in which it ought to have done. It has mechanically endorsed the finding of the trial Court and Mr. Murty on behalf of the petitioners rightly emphasised this unsatisfactory feature in the judgment of the lower appellate Court. For the ends of justice therefore I permitted him to take me through the entire evidence on record. But I must say that no adequate reason has been shown for disturbing the finding of the trial Court on the question of possession.
5. (After going through the evidence adduced by both the parties, his Lord-ship held that there could be no room for any bona fide claim by the petitioner's of right over the trees standing on the ridge and that the petitioners could obviously have no claim to the same. His Lordship then continued : )
6. Mr. Murty, however, raised the following interesting question of law. The case was started on a complaint filed on 12-10-1949. There was a local enquiry by the Revenue Inspector of Khallikot Estate and on receipt of his report the learned Sub-Magistrate passed the following order on 21-11-1949.
'There is dispute about the possession of the trees. So there is no case under Section 379, I. P.O. Cognizance under Section 352, I.P.C., is taken against Bharat Padhan, Kalu Padhan and Uchhab Padhan ..... Summon theaccused on collecting process.........'
Then the Magistrate proceeded with the trial of the case as a summons case and examined the complainant and his witnesses. Then on 23-3-1950 he passed the following order.
'Accused present. Complainant and 4 P.Ws. examined and cross-examined. In the course of the evidence, it is disclosed that an offence under Section 379, I.P.C., has been committed. So warrant procedure is followed......'
Then he proceeded with the trial of the case as a warrant case, framed charges under Sections 379 and 352, I.P.C., and convicted the petitioners. Mr. Murty urged that the order of the Magistrate dated 21-11-1949 stating that there was no case under Section 379, I.P.C., was tantamount to a dismissal of the complaint in respect of that offence and that consequently he had no jurisdiction on 23-3-1950 to take cognizance of that offence in the absence of a fresh complaint. This argument however is based on an erroneous assumption. The order of the Magistrate dated 21-11-1949 cannot be held to amount to an implied dismissal of the complaint in respect of the offence under Section 379, I.P.C. There was only one complaint before the Magistrate disclosing two offences, namely, an offence under Section 379, I.P.C., and another under Section 352, I.P.C. On receipt of the report of the officer who made a preliminary enquiry under Section 202, Criminal P.C., the Magistrate thought that there was no prima facie case under Section 379, I.P.C., and therefore proceeded with the trial under Section 352, I.P.C. The complaint cannot be split up into two distinct complaints as it were, one under Section 379, I.P.C., and another under Section 352, I.P.C. On a subsequent date when some of the prosecution witnesses were examined and cross-examined the Magistrate thought that there was prima facie case under Section 379. I.P.C., also and therefore reviewed his own previous order dated 21-11-1949 and proceeded to try the petitioners for that offence also. Doubtless ii his order dated 21-11-1949 can be held to be 'judgment within the meaning of Section 369, Criminal P.C., he would have no jurisdiction to alter or review the same. But it is now well-settled that an order dismissing a complaint under Section 293. Criminal P.C., or refusing to issue process is not a 'judgment' within the meaning of Section 369 Criminal P.C., and a Magistrate can always revise or review his order on a subsequent date especially when fresh facts come to light.
7. Mr. Murty however did not challenge the correctness of this proposition; but he urged that such review or alteration of the previous order can be made only on receipt of a fresh complaint and that the Magistrate had no jurisdiction to review his previous order on his own motion. There is however no authority in support of this contention. As early as 1905 in 'Emperor v. Chinna Kaliappa', 29 Mad 125, it was held that even if a complaint is dismissed the Magistrate may rehear the complaint even though the order of dismissal Was not set aside by a competent authority. A similar view was taken in 'Jyotindra Nath v. Hem Chandra', 36 Cal 415, and in a later Patna decision reported in 'Janakdhari Singh v. Emperor', 8 Pat 537. A very recent decision of the Patna High Court which Mr. Murty himself very fairly citedbefore me 'Ram Narain v. Panachand Jain', AIR. (36) 1949 Pat 256; is also against his contention. There the previous decisions on this subject were reviewed and it was held that a complaint dismissed under Section 203, Criminal P.C., can be revived without a fresh complaint. Doubtless the observations in respect of this question of law were in the nature of obiter but their correctness (if I may say so with respect) is not in any way affected by the fact that they were obiter.
8. In the present case however there was strictly speaking no dismissal of any complaint, As already pointed out, the Magistrate in the first instance refused to issue process in respect of the offence under Section 379, I.P.C. But subsequently after examining some of the prosecution witnesses, cited by the complainant he reviewed his previous order and proceeded with the trial in respect of that offence. Even if he had dismissed the complaint at the first stage the authorities cited above would justify his reviving the complaint without a fresh complaint and where there has been no such dismissal, the legality of his action seems to be beyond doubt. I may in this connection, refer to 'Baldeo Prasad v. Emperor', AIR (20) 1933 Pat 297, where it was pointed out that once the parties are before the Court the Magistrate will deal with the accused for any offence disclosed by the evidence. NO separate complaint needed and a Magistrate can try the accused for any offence and is not limited to the offence specified in the complaint or police report. The entire case law on the subject has been fully reviewed therein and it has been pointed out by Dhavle, J., that where cognizance is taken on a complaint and a different offence is disclosed in the evidence the Magistrate may proceed to frame charge in respect of the new offence and that it would not amount to taking cognizance of the new offence under Clause (c) of Sub-section (1) of Section 190, Criminal P.C. Those observations apply with full force to the present case.
9. I am therefore satisfied that the petitioners were rightly convicted. The conviction and sentence are maintained and the revision petition is dismissed. The order for payment of compensation to the complainant under Section 545, Criminal P.C., passed by the Additional District Magistrate is also confirmed.