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Chander Bhan Vs. Devi Dass and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtPunjab and Haryana High Court
Decided On
Judge
Reported in1975CriLJ1003
AppellantChander Bhan
RespondentDevi Dass and anr.
Cases ReferredIn State v. Kishan Dayal
Excerpt:
.....one. 13. in the instant case, it was the duty of the trial magistrate to procure the summoned file to enable the complainant to produce proper evidence but he failed to do this duty. appellant produced the best available evidence but the magistrate held that it was not sufficient to sustain the conviction. though delivery records are not conclusive in themselves, it is now well established, that criminal courts ought to attach due weight to them, in deciding whether .possession has passed under them. it has to be observed that the trial magistrate in appreciating the oral evidence in the case failed to keep this principle in mind. where it is not only not clear whether the prosecution has failed to bring the charges home to the respondent, but also whether the respondent has been..........of shri b. r. gupta, judicial magistrate 1st class, dab-wali, whereby he acquitted the respondents devi dass and his son jit ram of the offence under section 447, indian penal code'.2. the facts of the case are that chander bhan appellant obtained a decree for ejectment against devi dass respondent from land measuring 245 kanals 7 marias situated in village sukherwala, he made an application in the court of assistant collector 1st grade, sirsa, for execution of the decree to get possession of that land and a warrant was issued by the assistant collector and the same was entrusted to devi chand, field kanungo, p.w. 4. the kanungo went to the village on 25th may, 1969, to deliver possession and he delivered actual possession of 199 kanals 8 marias of land out of it which was lying vacant.....
Judgment:

1. This is an appeal filed by Chander Bhan son of Girdhari Lai, resident of Sukherwala, Tahsil Dab-wall, District Hissar, against the judgment dated 11th March, 1971. of Shri B. R. Gupta, Judicial Magistrate 1st Class, Dab-wali, whereby he acquitted the respondents Devi Dass and his son Jit Ram of the offence under Section 447, Indian Penal Code'.

2. The facts of the case are that Chander Bhan appellant obtained a decree for ejectment against Devi Dass respondent from land measuring 245 Kanals 7 Marias situated in village Sukherwala, He made an application in the Court of Assistant Collector 1st Grade, Sirsa, for execution of the decree to get possession of that land and a warrant was issued by the Assistant Collector and the same was entrusted to Devi Chand, Field Kanungo, P.W. 4. The Kanungo went to the village on 25th May, 1969, to deliver possession and he delivered actual possession of 199 Kanals 8 Marias of land out of it which was lying vacant and he made ' the requisite report in the Roznamcha of the village Patwari and the copy of that entry is Exhibit P. A- In the remaining 45 Kanals 19 Marias of land cotton crop was standing at that time. He again visited that village on 31st of May, 1969. and delivered possession ol the remaining 45 ' Kanals 19 Marias of land to Chander Bhan decree-holder on that day. and he made an entry t0 that effect in the Roznamcha of the village Patwari and the copy of that entry is Exhibit P. B. Since Crop was standing thereon, therefore, formal possession was given by him by Nishan-bandi and the proclamation regarding the ssyne was made in the village by beat of drum through Billu Chowkidar P.W. 3. After taking the possession; the complainant had sown Bajra and Gawara crops, in the vacant land. Some days thereafter, he went to Sonepat to which place he* originally belonged and he returned in the first week of November, 1969. He-visited this land on 10th November. 1969, and at about 4 p.m. he found that green. Gawara and Bajra was lying cut in Killa No. 16, rectangle No. 28, and that Devi Dass and Jit Ram respondents were plucking cotton in Killa No. 16, rectangle No. 30, and when he asked them as to why they were doing so, they pounced upon him and he ran away to save his life. They threatened to kill him. Since Devi Dass accused is a member of the village Panchayat and he wields influence with the police at Chotala, therefore, he did not go to Police Post, Chotala. and filed a complaint against the respondents under Section 447, Indian Penal Code, in, the Court of the Judicial Magistrate, Dabwali on 13th November, 1969. After recording the preliminary evidence, the Magistrate summoned both the accused' under Section 447, Indian Penal Code, by his order dated 28th November, 1969. Both the accused denied the allegations made against them in the complaint. They were charge-sheeted under Section 447, Indian Penal Code, by the Magistrate.

3. Chander Bhan complainant appeared as P.W. 1 as his own witness and he also examined Gulab Rai P.W. 2 Lambardar of the village in whose presence possession was delivered, Billu P.W. 3 Chowkidar of the village who made the proclamation by beat of the drum in the village regarding delivery of possession, and Devi Chand P.W. 4, Field Kanungo who delivered possession to him in execution of the warrant for possession.

4. The accused in their, statements under Section 342, Criminal Procedure Code denied the allegations made against them. Devi Dass accused stated that he was still in possession of the land in dispute and he had sown cotton crop and no possession of the land had been delivered to the complainant. They examined two witnesses Baldev Raj D. W. 1 and Mohan Lai, D. W. 2 in defence who stated that no Kanungo or Patwari visited the land and delivered possession to the complainant.

5. The learned Magistrate held that the complainant did not produce the copy of the order of ejectment passed in his favour and against Devi Dass and, therefore, it could not be said that any such order was passed against Devi Dass or not by the Revenue Authorities, He-further held that delivery of actual possession of the land was. not proved because neither the copy of the warrant for possession nor the copy of the report snade by the Kanungo Devi Chand on that warrant had been produced and, therefore, the evidence produced by the complainant did not prove that actual physical possession of the land was delivered to him and consequently the charge cannot be sustained. As a result he acquitted both the accused of the offences under Section 447, Indian Penal Code.

6. Feeling aggrieved, Chander Bhan complainant filed this appeal under Section 417 of the Code of Criminal Procedure (old). Leave to file this appeal under Section 417 ibid was granted and this appeal was admitted by a Division Bench on 1st December, 1971.

7. Along with the memorandum of appeal, the appellant also filed Cri-rainal Miscellaneous Application No. 1436 of 1971 under Section 561A of the Code of Criminal Procedure (old) for permission to lead additional evidence. It was prayed that he may be permitted to produce the following documents:-

(1) Copy of the order of the Commissioner whereby the appeal filed .by Devi Dass accused against the ejectment order was finally dismissed by the Commissioner, Ambala Division, on 25th September ,1969 (copy Annexure 'A' with the petition).

(2) Report made by the Kanungo on the back of the warrant of possession, and its copy is attached as Annexure 'B' to the petition.

(3) Copies of the treasury challans whereby the accused Devi Dass deposited .Rs. 1400/- on May 16, 1968, and Rs. 63/-on May 29, 1969 regarding compensation of the crop standing in the land for payment to Devi Dass. Copies of those challans are Annexures 'C and 'D' to the petition. It was alleged that the said amounts were withdrawn by Devi Dass afterwards from the treasury.

He further mentioned in the petition that these documents could not be produced because the file in which these documents were attached was not traceable. Notice of this petition was issued to the opposite party and it was directed that this petition shall also be disposed of by the Bench, hearing the appeal.

8. Before discussing the submissions made by the counsel for the parties. 1 set out below the relevant provisions of the Code of Criminal Procedure, 1973 {No. 2 of 1974). Section 386 lays down,-

386. After perusing such record and hearing the appellant or his pleader, if he appears, and the Public Prosecutor if he appears, and in case of an appeal under Section 377 or Section 378, the accused, if he appears, the Appellate Court may, if it considers that there is no sufficient ground for interfering, dismiss the appeal, or may-

(a) in an appeal from an order of acquittal, reverse such order and direct that further inquiry be made, or that the accused be retried or committed for trial as the case may be, or find him guilty and pass sentence on him according to law;

(b) to (e) * * * * *Section 391(1) reads as under:-

In dealing with any appeal under this Chapter, the Appellate Court, if it thinks additional evidence to be necessary, shall record its reasons and may either take such evidence itself, or direct it to be taken by a Magistrate, or when ' the Appellate Court is a High Court, by a Court of Session or a Magistrate.' Section 482 reads thus-Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of iustice.

9. The perusal of the record in this case shows that the statement on oath of Chander Bhan as P.W. 1 was recorded on 10th June, 1970. The Field Kanungo Devi Chand and other witnesses were present on that day but their statements could not be recorded because the summoned file wherein the original warrant of possession of the suit land was attached, had not been received and the case was adjourned to 2nd July, 1970. The file was not received on 2nd July, 1970, 20th July. 1970, 23rd July, 1970, and 10th August, 1970. It was again summoned for 20th August, 1970. On the 20th August, 1970, the complainant stated that the file was not traceable and he wanted to adduce evidence without the file. The Court accepted his request and further ordered on that day that the complainant can have dasti docket to get the file traced and the case was then adjourned to 5th October, 1970, for the remaining evidence of the complainant. No witness was present on 5th October, 1970, and the case was then adjourned to 5th November, 1970, and on the later date the statements of Gulab Rai P.W. 2 and Billu Chowkidar. P.W. 3 were recorded and the case was adjourned to 10th November, 1970, for the evidence of the remaining two witnesses, namely, the village Patwari and the Kanungo, who had not been served. The statements of the Kanungo and the village Patwari were recorded > on 3rd December, 1970. The evidence of the complainant was closed and then the statements of the accused were recorded and the case was adjourn-ed for the defence evidence. The accused examined two witnesses in defence as mentioned above. The village Patwari Prabhu Dayal, P.W. 5, produced the original Roznamcha wherein Devi Chand Kanungo had made the reports on 25th May, 1969, and on 31st May, 1969, regarding delivery of possession of the land to Chander Bhan. The Kanungo proved these reports in the Roznamcha which bore his signatures. After the close pt evidence of the parties, the case was adjourned to 8th March, 1971, for arguments.

10. On 8th March, 1971, Chander Bhan complainant made an application for additional documentary evidence stating that he may be permitted to produce a copy of the order of the Commissioner, Ambala Division, whereby he dismissed the appeal of Devi Dass against the ejectment order. The Judicial Magistrate rejected this application with the remark that that was no stage for permitting the complainant to produce additional evidence because the accused are likely to be prejudiced by the production of such evidence at late stage.

11. During arguments reference was also made to the order dated 17th January, 1970, passed by the Financial Commissioner, Haryana, in Revision petition No. 176 of 1969 (Devi Dass v. Chander Bhan) whereby the revision petition of Devi Dass for enhancement of the amount of compensation of Rs. 1400/- was rejected. The learned counsel for the appellant contended that initially the compensation for the'standing crops to be paid to Devi Dass was fixed at Rs. 900/- but it was enhanced to Rs. 1,400/-by the Commissioner, Ambala Division, and the revision petition filed by Devi Dass against that order- was dismissed by the Financial Commissioner and, therefore, he cannot be heard saying that actual possession of that portion of the land on which crops were standing at the time of delivery of possession was not given. It is well-settled law that the High Court in appeal under Section 417 ibid has full power to review at large the evidence on which the order of acquittal was founded and to reach the conclusion that upon the evidence the order of acquittal should be reversed. However, the High Court should give due weight and consideration to the views of the trial Court as to the credibility of the witnesses, the right of the accused to the benefit of any doubt, and the slowness of the Appellate Court, in disturbing a finding of fact arrived at by a Judge who had the advantage of seeing the witnesses, and that unless the conclusions reached by the trial Court are palpably wrong or based on erroneous view of law or its decision is likely to result in grave injustice, the High Court should be reluctant to interefere with its conclusion: vide Roop Singh v. State of Punjab : 1973CriLJ1778 and Khedu Mohton v. State of Bihar : 1971CriLJ20 .

12. In the instant case, the Magistrate acquitted the accused on the ground, that the copy of the order of ejectment, passed in favour of the appellant and against Devi Dass had not been produced and, therefore, it could not be said that, the ejectment order was actually passed or not. He further held that there is no-proof on the file that any warrant for delivery of possession of the land was issued and what report was made by the' Kanungo on its back regarding delivery of possession. He held that the copies. Exhibits P. A. and P. B. of the entries made by the Kanungo in the Roznamcha of the village Patwari regarding delivery of possession were not sufficient to prove-the delivery of possession of the land. As mentioned above, the warrant of possession and the reports of the Kanungo dated 25th May. 1969, and 31st May, 1969, regarding the delivery of possession of the land were on the execution file which was duly summoned by the complainant but this file was not traceable and consequently he could not produce these documents. Now the file has been traced and he has got the copies of the warrant and reports of the Kanungo to prove the delivery of actual possession of the land to-him on the spot. The warrant of possession would give the details, of the decree for ejectment passed by the Revenue Authorities, These documents could rfot be produced for reasons beyond the control of the complainant. This file might have, been misplaced at the instance of the accused by some official during the trial of the case as contended by the counsel for the appellant. Therefore, in the interest of justice, this application for additional evidence filed by the appellant must be allowed. It is well settled law that the power of the High Court to order re-trial whether in appeal from conviction or from acquittal is a discretionary one. No hard and fast rule/ can be laid down regarding the power of the High Court to order retrial or to take additional evidence as it depends on the facts and circumstances of each case whether any one of the two courses should be adopted. If the trial by the Magistrate is incurably defective so that even the taking of additional evidence under Section 491, Criminal Procedure Code, would not put the Appellate Court in a position to dispose of the case satisfactorily, then re-trial should be ordered.

13. In the instant case, it was the duty of the trial Magistrate to procure the summoned file to enable the complainant to produce proper evidence but he failed to do this duty. He simply gave adjournments for the production of the-file by the complainant-appellant. The complainant himself could not produce this official file which was alleged to have been misplaced. To record the statements of the witnesses produced by the appellant, the production of the execution file containing the original warrant of possession of land and the original report of the Kanutigo on that warrant regarding delivery of actual possession was necessary. The report of the Kanungo bore his signature and also the signatures/thumb impressions of the complainant, Gulab Singh, P.W. and Billu, P.W., and they had to prove the original report. If the execution file was reDorted to be missing then it was ihe duty of the Magistrate to have it traced and then to record the evidence of the complainant but he did not do so. In the absence of the execution file, the. appellant produced the best available evidence but the Magistrate held that it was not sufficient to sustain the conviction. It is admitted that the execution file has since been traced and the copies of the relevant documents have been obtained by the appellant and he has attached the same with his application for additional evidence. In this connection, reference may be made to Ammed Haji v. Kunhambu, ILR (1959) Ker 620:-

In this appeal against acquittal on a charge of trespass it was contended for the appellant that due weight was not given to the delivery records produced by the prosecution.

Held: Though delivery records are not conclusive in themselves, it is now well established, that Criminal Courts ought to attach due weight to them, in deciding whether . possession has passed under them. It has to be observed that the trial Magistrate in appreciating the oral evidence in the case failed to keep this principle in mind. As such the case must go back to the trial Court for a fresh appreciation of the evidence.

In State v. Kishan Dayal it was held as under:

Where it is not only not clear whether the prosecution has failed to bring the charges home to the respondent, but also whether the respondent has been justly acquitted, and the case is not one of all available evidence having failed to prove the alleged guilt, but of its not having been produced the only proper course is to order a retrial.

It was further held in that case--

A retrial should not be refused merely on the ground of harassment to the accused where the circumstances of the case render it otherwise desirable.

The observations made in the above decisions are fully applicable to the present case.

14. For the reasons given above, it is held that the appellant was not given proper opportunity by the trial Court tp produce his evidence and, therefore, retrial in this case under the circumstances must be ordered. As a result, this appeal is accepted, the .-judgment pi the Magistrate acquitting the accused of the charge under Section 447, Indian Penal Code, is set aside and the case is remitted to him for retrial in the light of the observations made abovei. He shall now summon the execution file referred to above and shall give the parties opportunity to produce evidence in accordance' with law. The parties are directed' through their counsel to appear in the Court of the Judicial Magistrate 1st Class,. Dabwali, on 3rd March,. 1975.

S.S. Sidhu, J.

15. I agree.


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