R. Sadasivam, J.
1. Appeal by the complainant, Palaniswamy Gounder, against the acquittal of accused 1 to 3 for the offences of criminal trespass and mischief. The Sub-Magistrate, Udumalpet, who tried the case on a private complaint filed by the appellant, had convicted three of the four accused for criminal trespass and mischief and sentenced them to a fine of Rs. 25 each under each count and ordered a such of Rs. 60 out of the fine amount, if collected, to be paid to the appellant as compensation. The District Magistrate, on appeal by the convicted accused ordered notice to the appellant herein, but he was not served. The learned Advocate for the appellant urged that the appeal should be directed to be re-heard by the District Magistrate as the appellant had no opportunity to support the order of compensation in his favour.
2. Section 422, Criminal Procedure Code, does not contemplate any notice t the complainant in an appeal preferred by an accused person against his conviction and strictly speaking it would be perfectly legal to order notice only to the Public Prosecutor. But where an order for compensation has been made in favour of the complainant, principles of natural justice require that notice should be given to the complainant. Under Rule 208 of the Criminal Rules of Practice, notices in criminal cases shall be served on parties personally unless they are represented by Pleaders in which case notice could be given to Pleaders except in cases where notice for enhancement of sentence is given. In practice one or two notices are taken to the complainant in cases where orders of compensation are matte, and then the matter is placed before the Judge to consider sufficiency of the notice. In Sundararamier v. Chinna Palani Ambalam : AIR1943Mad566 Horwill, J., pointed out that the fact that notice is required under Section 422, Criminal Procedure Code, to go to the Crown but no mention of notice to a private party is made indicates that the parties concerned in a criminal appeal from a conviction are the convicted persons and the Crown, and that if the Crown supports the order of acquittal, then the Court is not concerned with the attitude taken by the complainant who instituted the proceedings in the trial Magistrate's Court, particularly when no important question is at issue. It should be noted that in that case notice was taken to the complainant but not to the Public Prosecutor as required under Section 422, Criminal Procedure Code. It was held that the non-observance of the mandatory provisions of Section 422 did not necessarily call for interference in revision with an order of acquittal. There does not appear to have been any order for compensation in favour of the complainant in that case. But in Maria Susai v. Arogiam (1941) 55 L.W. 177 Horwill, J., has held that the failure of the Court in an appeal by the accused to issue notice to the complainant in whose favour an order for compensation has been made is no ground for interfering in revision with the acquittal by the appellate Court. He was of the opinion that it would be grossly unfair to require the accused who was acquitted to go through a fresh ordeal because the appellate Judge heard only the Public Prosecutor which is all that Section 422 required and not the complainant also.
3. In Venkatavarada Iyengar v. Vengai Servai 1933 M.W.N. 729 Burn, J., quashed the judgment of the appellate Court and ordered the appeal to be re-heard when notice to the complainant was not ordered by the appellate Court, on an appeal preferred by the convicted accused. Burn, J., held that the procedure was grossly unfair to the complainant. He has pointed out that though the omission to give notice was not an illegality, it was clearly a gross irregularity and contrary to all sense of fairness. The same view has been taken in other High Courts also. In Bharasa Naw v. Sukdeo I.L.R.(1926) Cal. 969 it was held that an appellate Court in the exercise of proper discretion should give notice of the hearing of the appeal from a conviction to the complainant when an order of compensation has been made in his favour under Section 545, Criminal Procedure Code.
4. In Emperor v. Chunilal Bhagwanji A.I.R. 1942 Bom. 205 a Bench of the Bombay High Court also took a similar view and held that a complainant in such circumstance sought to be served with notice of appeal or revision which may result in the order of compensation in his favour being set aside. In the course of the judgment it is pointed out that the practice of the Bombay High Court is to direct notice in such cases only in revision and not in appeals, but that the same practice should prevail in both appeals and revisions. But the Bombay High Court refused to interfere with the acquittal of the accused in that case as the Judge had no doubt that even if notice had been served on the complainant the learned Judges would not have thought it necessary to hear the complainant's Advocate as well as the Crown who was heard and the omission to serve notice on the complainant had not vitiated the order of the Sessions Judge.
5. It is desirable that the appellate Court should see that the notices ordered to the complainants in such cases as the present one are served or at least reasonable attempts are made to serve them before disposing of the appeals.
6. Having regard to the above facts, I went into the merits of the case as I am bound to do in a criminal appeal. On the facts and circumstances of the case, the accused are entitled to be acquitted, and I shall proceed to give my reasons for the same. The alleged criminal trespass in this case was on the morning of 5th November, 1963; but the complaint in this case was given to the Magistrate two days later on 7th November, 1963. Even in the sworn statement the complainant could not give any explanation for the delay and he admitted that he did not complain either to the Village Munsif or to the Police. It is stated that the accused committed the offence on account of an earlier complaint regarding the prior incident on 26th October, 1963. But there is no conceivable reason why the accused waited till 5th November, 1963, to wreak vengeance against the complainant. The learned District Magistrate has pointed out the several material discrepancies in this case as to whether one kiluvai tree or more than one kiluvai tree or only a fence was cut and removed. P.W. 1 is the complainant in this case. P.W. 2 is the aunt's son of the complainant. P.Ws. 3 and 4 are coolies belonging to a different village. There is no reason why they came to the place of occurrence. In fact, P.W. 4 stated in cross-examination that he has not gone to the field of P.W. 1 prior to 'the date of occurrence. The complainant and the accused are adjacent land owners and there is misunderstanding between them. The learned Sub-Magistrate himself has acquitted the fourth accused, who according to the complainant and his witnesses went along with the three accused and helped them to carry away the cut trees. It is doubtful whether any trees were cut as spoken to by P.W. 1 and his witnesses. The learned Sub-Magistrate has referred to the statement given by the Village Munsif during his enquiry under Section 202, Criminal Procedure Code, that there were trees on the land of P.W. 1 and observed that it was sufficient proof to come to the conclusion that accused 1 to 3 trespassed into the field of P.W. 1 and cut the trees in question. The Sub-Magistrate did not discuss the case against each accused or even the criminal intention of the several accused.
7. The convictions of the accused for criminal trespass and mischief cannot therefore be sustained and they are entitled to be acquitted. There is therefore no ground to interfere with the acquittal of the accused. This appeal is dismissed.