1. In this case certain standing crop was distrained for arrears of revenue. The accused are the real owners of the land on which the crop had stood and the parties in possession. But the pattas stood in the names of others and the demand in writing and the list of distrained property prescribed by Act II of 1864 were given to them alone. The accused carried away the crop and were charged with theft. Their defence was that they knew nothing of the distraint, that they cut and carried away their own crop, and that no one objected to their doing so. The Deputy Magistrate acquitted the accused on the ground that no demand was served upon them and that no list of distrained property was furnished to them. The District Magistrate considers that as Section 8 of Act II of 1864 requires the service of a demand in writing only on the defaulter and the delivery of the list of distrained property only to him the acquittal is wrong and refers the case for the orders of this Court.
2. The Deputy Magistrate relied on the decision in criminal revision case 321 of 1882, but that decision proceeds on the view that the demand should be served on, and the list of attached property delivered to, the tenant in possession. As pointed out by the District Magistrate, Section 8 refers only to the defaulter who is the pattadar or registered proprietor.
3. The Deputy Magistrate was, therefore, clearly in error in acquitting the accused on the ground that notice of demand and a list of distrained property should have been given to them.
4. There is no distinct finding as to whether they were in fact aware of the distraint, and with such knowledge dishonestly removed the crop. 5. We must set aside the order of acquittal and direct a re-trial.