1. This rule has been obtained by two persons who have been convicted of having com. mitted theft by the learned Magistrate, Sri S. C. Mukherjee, exercising first class powers at Diamond Harbour. On appeal the Additional Sessions Judge, 24 Parganas, upheld the order of the learned Magistrate with respect to the two -petitioners. Six persons were tried by the Magistrate and convicted. Four of these six were acquitted by the lower appellate Court. The sentence passed on the petitioners consists of a fine of RSection 100 each, in default rigorous imprisonment for a period of four months.
2. Having regard to the order which I am about to pass it will not be necessary to state the facts in full. The case was argued with commendable fairness on both sides. Mr. Mukherjee appearing to oppose the Rule was of great assistance to this Court in determining the questions of law involved. The facts briefly are these : There is a plot of land which is being claimed on the one hand by Atul Krishna Ghose and Ors. and on the other by Osman Mistry and others. Proceedings Under Section 144, Criminal P.C., were Btarted and an order was passed prohibiting both parties from entering upon the land. Thereafter, it is said, three persons namely the two petitioners (Osmau Mistry and Jane Alam Mistry) and one Akkas Ali Molla went on the land and cut the paddy thereon in spite of the prohibitory order. Six days after this these three persons together with three others again went on the land and cut and took away the paddy therefrom. On these facts two cases were started in respect of the two occurrences and the charge against the accused in each of these cases was a charge of theft. Thereafter the learn, ed Magistrate, to use his own words, amalgamated both the cases and tried both the cases together as a single case and passed a judgment finding all the sis persons guilty of the offence of theft. On appeal, as I have said before, four persons were acquitted and the conviction of the two petitioners was upheld.
3. Learned advocate appearing for the petitioners urges that the entire proceedings are bad. First, he points out that the offence committed was one which was really punishable Under Section 188, Penal Code, inasmuch as the offence consisted in disobeying an order passed under B. 144, Criminal P.C. Next, he says that no Court can take cognizance of such an offence except upon a complaint made by the public servant concerned and he refers ment to the provisions of Section 195 (1)(a), Criminal P.C. In the present case there was no complaint made by the learned Magistrate who passed the order Under Section 144, Criminal P.C. That being so, the entire proceedings are without foundation. There is really no answer to this contention. The provisions of the law are perfectly clear. If the act of a person amounts to an offence punishable Under Section 188, Penal Code, then no Court shall take cognizance of that offence except upon the complaint of the public servant concerned whose order has been disobeyed. It is not permissible for the prosecution to ignore the provisions of this section of the Code of Criminal Procedure by describing the offence as being one punishable under some other section of the Penal Code. Such a change of garb, if I may use the expression, would be of no avail. If this is permitted, then the provisions of Section 195 (1)(a), Criminal P.C., will be rendered absolutely nugatory. I do not wish to enlarge upon this matter. It is con-eluded by a decision of this Court. I refer to the judgment of Rankin C. J. and C. C. Ghose J. in the case of Ibrahim v. Emperor, reported in 111 I.C. 483 : 29 Cr.L.J. 849 Cal. It was held that where the offence committed is punishable Under Section 471. Penal Code, it is illegal to reduce the charge to one Under Section 474 of the said Code and prosecute the accused without a com-plaint being made Under Section 476, Criminal P.C. The entire proceedings are therefore vitiated by reason of there being no complaint by the Magistrate who passed the order Under Section 144, Criminal P.C.
4. The next point urged is that the trial is illegal inasmuch as there was a joinder of two offences which could not under the law be joined. This ground is perfectly sound. There is no provision in the Code of Criminal Procedure for amalgamating cases. The sections relating to the joinder of charges and the joinder of persons nowhere permit of the procedure adopted by the learned Magistrate. The first offence was committed by three persons. The second offence was committed six days thereafter by those three persons and three others. These two offences cannot be joined under any of the provisions of . the Code of Criminal Procedure. The trial is therefore illegal on this ground.
5. Lastly, it was pointed out that a charge of theft cannot lie inasmuch as the paddy was then not in possession of the opposite parties by reason of the fact that there was an order Under Section 144, Criminal P.C. prohibiting both parties from going on the land and exorcising acts of possession thereon, At the time of the alleged cutting of the paddy therefore it cannot be said that it was in the possession of the opposite parties. An offence of theft cannot be committed unless the property is moved out of possession of a person. On this ground also the charge of theft would not be maintainable.
6. I therefore set aside the order of conviction and sentence passed. The Magistrate who passed the order Under Section 144, Criminal P.C. may, if he thinks proper, make a complaint in accordance with the provisions of Section 195 (1), Criminal P.C. in respect of each of the incident. If he decides to take action, he shall have to make two complaints and the complaints will have to be tried separately.
7. Nothing which I have said is intended to prevent the Magistrate from considering the application made by the petitioners against the opposite parties charging them with an offence punishable Under Section 188, Penal Code.