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Kshitish Chandra Shome and ors. Vs. the State - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKolkata High Court
Decided On
Case NumberCriminal Revn. No. 774 of 1964
Judge
Reported inAIR1967Cal114
ActsCode of Criminal Procedure (CrPC) , 1898 - Sections 200 and 202
AppellantKshitish Chandra Shome and ors.
RespondentThe State
Appellant AdvocateN.C. Banerjee, ;Jnanendra Mohan De and ;Sivadas Ghoshal, Advs.
Respondent AdvocateSisir Kumar Basu, Adv.
DispositionPetition dismissed
Excerpt:
- .....on the 22nd pous, 1369 b. s. by the accused persons under orders of accused kshitish shome. the learned magistrate convicted accused kshitish shome under section 379/109 and the other accused persons under section 379 and sentenced each of them to pay a fine of rs. 75, in default to rigorous imprisonment for one month each. the defence version of the case appears to be that p. w. 2 dharmadas roy sold a por tion of c. s. plot no. 8095 of mouza ketugram to d. w. 1 sahadat hossain by ext. a. p. w. 2 however had no right, title or possession in the same plot no. 8095, the plot being in the possession of one rampada paul and dhanu-pada paul. p. w. 2 therefore, failed to give possession to sahadat hussain and in lieu of that, he gave sahadat possession in the disputed land which belonged to.....
Judgment:
ORDER

A.K. Das, J.

1. This revisional application is directed against the order passed by the Sessions Judge Burdwan dismissing the petitioners' appeal against conviction by a learned Magistrate, Katwa.

2. The facts of the case may be statedas follows :

Complainant's case is that one Mir Akkel Hus-sain, D. W. 3 grew sugarcane as bhagidar of Dharmadas Roy on c. s. plot No. 594 under khatian No. 60. of Mouza Brahmadanga within Kelugram Police Station. The total area of the plot is .68 decimals, out of which 1' decimals in the north-west was purchased by the complainant by a registered kobala, Ext. 1 from one Dharmdas Roy, P. W. 2 with the standing sugar-cane. The complaint related to cutting and removal of the sugarcane on the 22nd Pous, 1369 B. S. by the accused persons under orders of accused Kshitish Shome. The learned Magistrate convicted accused Kshitish Shome under section 379/109 and the other accused persons under Section 379 and sentenced each of them to pay a fine of Rs. 75, in default to rigorous imprisonment for one month each. The defence version of the case appears to be that P. W. 2 Dharmadas Roy sold a por tion of c. s. plot No. 8095 of Mouza Ketugram to D. W. 1 Sahadat Hossain by Ext. A. P. W. 2 however had no right, title or possession in the same plot No. 8095, the plot being in the possession of one Rampada Paul and Dhanu-pada Paul. P. W. 2 therefore, failed to give possession to Sahadat Hussain and in lieu of that, he gave Sahadat possession in the disputed land which belonged to him. D.W. 1 Sahadat next sold this plot to Mrs. Binapani Shome, wife of accused Kshitish Shome under a registered deed, Ext. B. This deed described the plot sold as c. a. plot No. 8095 but Sahadat gave possession to Mrs. Shome in the disputed land. They further contend that D. W. Mir Akkel Hossain grew sugar-cane under Mrs. Shome as a bhagidar and it was Mir Akkel who harvested the canes with other men.

3. The learned Magistrate on a review of the entire evidence of witnesses having lands near the disputed plot held that the accused persons cut away the sugar-cane crop from the land. This view is also supported from the nature of the defence and has been agreed to by the learned Sessions Judge who heard the appeal also. In this state of the evidence and the circumstances, the conclusion seems reasonable and I have no reason to differ from this finding of the Courts below, namely, that the sugar-cane crop was cut away by the accused persons at the instance of accused Kshitish Shome. Ext. 1 is the sale-deed by which the complainant purchased 17 decimals from the northwest of the plot and bounded by 'ailes'. Admittedly, the plot No. 594 belonged to Dharama Das Roy. Admittedly, also Mir Akkel grew sugar-cane crop in the land as bargadar. The kobala in favour of Binapani Shome mentions plot No. 8095 of Mouza Ketu-gram. She is a purchaser from Sahadat Hossain and Sahadat's Kobala also mentioned the same plot. Indeed if there was any mistake in the number of the plot, it is only natural to expect that a rectification deed would be executed. I was contended that Dharmadas on discover of the mistake gave possession of the disputed land to Sahadat Hossain. But Dharmadas Roy is P. W 2 and he has denied it. He has specifically stated that he made over possession of 20 decimals of land out of plot No. 8095 of Mouza Ketugram to Sahadat Hussain. It may incidentally be pointed out that the plot purchased be Sahadat Hussain and then by Binapani measures 20 decimals, whereas the disputed portion is 17 decimals only. In view of the state of the documentary evidence, the Courts below have rightly accepted the oral evidence in support of the complainant's story of possession and cultivation through bargadar and there is hardly any reason to interfere with that finding of the courts below.

4. Mr. N. C. Banerjee, learned Vdvocate tor the petitioner raised a number of points in support of his case. He argued that the courts below did not consider the individuial cases, but in the nature of this case, the question of separate assessment of evidence did not arise at all. The prosecution case is that Kshitish Shome gave the order and others cut away the sugar-cane and the same set of witnesses proved the incident which occurred at one time. So the question of considering individual cases separately did not arise nor there has been any prejudice to the accused. Mr. Banerjee then pointed out that there is no finding of dishonesty. The Courts below found that the complainant was in possession through his bargardar and that the petitioner Kshitish with the help of other accused persons suddenly came upon the field and cut away the crop. Apparently, the cutting away of the crop caused wrongful gain to the accused persons and wrongful loss to the complainant and the dishonest intention is apparent. Mr. Banerjee next made a grievance that the defence version was not considered. I have however carefully read the judgment of the Courts below and they held that what Binapani purchased and got possession was not anv portion of plot No. 594, but the other plot mentioned in her kobala and in the kobala of her vendor, namely from out of plot No. 8095 There is no force therefore, in these objections.

5. Mr. Banerjee next argued that the cognizance taken on the report of the Block Development Officer is bad and as such, thelearned Magistrate did not have jurisdiction to try the case. The learned Magistrate after examination of the complainant sent it to the Officer-in-charge, Ketugram P. S. for enquiry and report. A report Was placed before him on March 6, 1963 when the complainant filed a naraji petition. The learned Magistrate on the same day sent it to the Block Development Officer, Keturgam for a report. On receipt of the report from the Block Development Officer, the learned Magistrate summoned the accused persons. Mr. Banerjee argues that after the report of the Officer-in-charge, Ketugram, it was nut open to the complainant to file a naraji petition nor was it open to the Court to direct fresh enquiry under Section 202 of the Cr. P. C The result would be that the entire proceeding that followed was had in law and legally unsustainable. The relevant order is dated 6-3-1963 which reads as follows :

'Seen report. Complainant files naraji. To. B. D. O. Kelugram II for e/r fixing 2-4-1963'

Section 202 Cr. P. C., provides for an enquiry or an investigation by a Magistrate or a police officer or otherwise for the purpose of ascertaining the truth or falsehood of the complaint and there was no bar against sending it to the Block Development Officer for enquiry and report on receipt of the naraji petition. The learned Magistrate did not at this stage take into consideration the report submitted by the Officer-in-charge: apparently he worked on the naraji petition and referred it to the Block Development Officer for the purpose of ascertaining the Iruth or falsehood of the complaint. The order in the circumstances is not bit by any provision of Section 202 Cr P. C. Even treating the naraji petition as a fresh complaint petition, the learned Magistrate was en-filed under Section 202 Cr. P. C., to send it for enquiry to the Block Development Officer and in this view also the order is legal and valid.

6. Mr. Banerjee has referred to an unre-ported decision of this Court in Cr. Revn. No 157 of 1961 (Cal), and argued that a direction for further or second enquiry is illegal. On the facts of that case, the Court held that if the learned police magistrate did not find the report to his liking it was not open to him to order a second enquiry To safeguard against the attempt to get a report to the Magis-trate's liking the Bench held that 'it was ab-surd to suggest that cognizance magistrate after receipt of a report by the enquiring magistrate be allowed to fashion a second or a third or fourth report to his liking or choice.' The decision therefore, applied to the particular facts of the case but in the present case. I have already discussed the circumstances in which it was sent to the Block Development Officer, viz., on the naraji petition from the party and there was nothing wrong or illegal in acting on this report. Even treating the naraji petition as n fresh complaint, the learned Magistrate could direct a fresh en-quiry and there is nothing illegal in it. Mr. Banerjee however, argued that even if thenaraji petition is treated as a fresh complaint, examination under Section 200 Cr. P. C., was necessary and it was not done and as such the order directing enquiry under Section 202 Cr. P. C., is wrong. The complainant was ear Her examined under Section 200 Cr. P. C., and his statement is on record. A second examination is in the circumstances neither necessary nor called for and I cannot accept this argument of Mr. Banerjee. Incidentally I may mention that the report of a judicial enquiry under Section 202 Cr. P. C., is not binding on this magistrate and he can pass any order under Section 203 or 204 Cr. P, C., notwithstanding a report to the contrary. In that view of the matter, I fail to see how the question of a cognizance magistrate procuring a made-to-order report arises. However, that question need not be gone into here.

7. In the result, there is no reason to interfere with the order and the application stands rejected.

8. The rule is discharged.


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