G.K. Misra, J.
1. The accused were convicted under Sections 147 and 379 I.P.C. and each of them was sentenced to pay a fine of Rs. 15/- in default to 5 days R. I. Under Section 147 and to Rs. 30/- in default to 10 days R. I. under Section 379, by the Magistrate (Judicial) First Class, Padampur.
2. Complainant Natha Maitri and the accused are agnates. Mahangu is the brother of Lochan. Natha is the grandson of Mahangu. Accused 3 to 5 are the sons of Lochan. Accused-1 is the son of accused-4. Accused-12 is the grandson of Lochan through another son Shyamsundar. Accused 6 and 7 are the field servants of the other accused.
Prosecution case was that the disputed land fell to the share of the complainant in a family partition in 1947. Since then the complainant is in possession. He grew crops of the disputed land in 1962. The accused in a body unlawfully cut away the crop on 23-10-63. The defence as it appears from the statement under Section 342 Cr. P. C., is one of denial. To take a sample statement, the question and answer may be noted;
Question--It appears from the prosecution evidence that yon with other accused persons illegally reaped away the crop on 23-10-62 from Pipalduli in Pipalmal lands which was in the possession of Natha Matari in which he had grown paddy. What have you to say
Answer--It is false. I have not reaped away the crop. Accused 6 and 7 denied coming to the spot. No witnesses had been examined by the defence . It is thus manifest that the defence was not that the accused were in possession of the land, grew paddy and reaped away the same.
The learned Magistrate, after full discussion of the evidence, came to the conclusion that the complainant was in possession of the land, had grown crop and that accused persons removed the said crop.
Cr. Rev. No. 9(8)/3 of 64/65 was filed by the accused challenging the order of conviction and sentences. The learned A. D. M. (J) was of opinion that the conviction should be set aside in view of an order under Section 145 Cr. P. C. passed in favour of the accused (Ex. A) in respect of the very land. He has accordingly made this reference for quashing the conviction and sentence.
3. The main conviction is under Section 379 I.P.C. The requirement of law in a case of this nature has been fully discussed in (1965) 31 Cut LT 601, Binayak Swain v. Ramesh Chandra Panigrahi. It was held therein that if the accused removed the property honestly believing it to be his, he could not be convicted of theft even though his claim might be ill-founded in law and in fact. The claim of the accused should not be mere colourable pretence. In each case the Court shall come to a finding on the materials of that case, whether the claim advanced by the accused is an honest one or a mere pretence. Where the alleged theft consisted in the removal of crop grown on the land, the most vital question to be investigated into is as to which of the parties had grown the crop. In majority of cases this test would furnish the answer as to whether the claim of the accused was bona fide or a mere pretence though it docs not lay down universal rule.
On the finding of the learned Magistrate that the complainant grew paddy and that the accused reaped away the same, on the basis of the aforesaid authority the conviction is well founded.
4. The question for consideration in this reference is whether the order under Section 145 Cr. P. C. between the parties in respect of the same land would affect the aforesaid conclusion, or, in other words, would establish that the claim of the accused is not a mere pretence. To appreciate this contention, certain facts may be narrated in chronological order--
'(i) 20-9-62 the application under Section 145 Cr. P. C. was filed.
(ii) 23-10-62 the crop was reaped away by the accused.
(iii) 24-10-62 preliminary order under Section 145 Cr P. C. was passed.
(iv) 29-10-62 complaint was filed in respect of the occurrence on 23-10-62.
(v) 17-10-63 Criminal case was stayed pending disposal of the proceeding under Section 145 Cr. P. C.
(vi) 26-12-63 The final order under Section 146 Cr. P. C. was passed.
(vii) 17-12-64; The order of conviction, which is the subject matter of reference was passed.'
5. The learned A. D. M. (J) placed reliance on 20 Cut LT 67 : (AIR 1954 Orissa 240) in support of his view that the final order under Section 145, Cr. P. C would affect the ultimate decision under Section 379 I. P. C. when both the proceedings relate to the same land. This decision does not lay down any such principle All that was said in that case is that the parties should not be harassed in respect of the same dispute in two separate proceedings at the same time. For this reason, the Criminal case was allowed to he stayed until termination of the proceeding under Section 145 Cr. P. C. It is no authority for the proposition that the decision in a proceeding under Section 145 Cr. P. C. would be binding as to the question of possession in respect of the disputed land in the criminal case.
6. Before making further discussion. It would be pertinent to quote the ultimate conclusion in the order (Ex.-A) :
'I am convinced that the second party members were in possession of the subject-matter of dispute 60 days prior to the date of the preliminary order Accordingly the second party members are declared to be in possession of the subject-matter of dispute until evicted therefrom in due course by any competent Court of law.'
It would be noticed in the first instance that this order is not in accordance with law. Section 146 (4) Cr. P. C. lays down :
'The Magistrate shall then, without reference to the merits of the claim of any such parties to a right to possess the subject of dispute, peruse the statements, documents and affidavits, if any, so put in, hear the parties and conclude the injury, as far as may be practicable, within a period of two months from the date of the appearance of the parties before him and, if possible, decide the question whether any and which of the parties was at the date of the order before mentioned in such possession of the said subject.'
The Second proviso to the Section says :
'Provided further that, if it appears to the Magistrate that any party has within two months next before the date of such order been forcibly and wrongfully dispossessed, he may treat the party so dispossessed as if he had been in possession at such date.'
It would be thus manifest that the Magistrate is called upon to record his finding on two points--(i) which party was in possession on the date of the preliminary order and (ii) if one of the parties has been forcibly and wrongfully dispossessed within two months of the preliminary order, that party should be treated to be in possession on the date of the preliminary order even though in fact he was not in possession. The second proviso introduces a legal fiction.
Sub-section (6) of Section 146 makes it clear that if the Magistrate comes to one of the aforesaid two findings, then alone he shall pass a final order declaring such party to be entitled to possession thereof until evicted therefrom in due course of law, and forbidding all disturbance of possession until such eviction.
7. The final order of the Magistrate in Ex.-A, which has already been extracted, does not record any one of the aforesaid two findings. In the absence of such a finding, the direction of the Magistrate that the second party members (accused) are declared to be in possession of the subject-matter of dispute until evicted in due course is without jurisdiction. The Magistrate has also no jurisdiction to record a finding to the effect that the second party members were in possession of the subject-matter of dispute 60 days prior to the date of preliminary order. Such a finding is not in conformity with the requirement under Subsection (4) or its second proviso. Ex. A is without jurisdiction and a nullity and must be ignored.
It is unnecessary in this case to examine the further question whether the order under Section 145, Cr. P. C. would be treated as a mere piece of evidence of possession in a case under Section 379 I. P. C. or would conclude the question of possession in that regard.
8. On the aforesaid discussion that Ex.-A is to be ignored from consideration, the order of conviction passed by the learned Magistrate is not assailable. The learned A. D. M. (J) recommended for its quashing only on account of the non-consideration of Ex. A.
The reference is accordingly discharged.