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Emperor Vs. Bande Ali Sheikh and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKolkata
Decided On
Reported inAIR1940Cal163
AppellantEmperor
RespondentBande Ali Sheikh and ors.
Cases ReferredEmpress v. Abayya
Excerpt:
- .....magistrate of kustia instituted proceedings under section 145, criminal p.c., and attached the land in dispute describing it by its touzi number and mentioning '2 annas 6 pies portion.' this however causes no difficulty because it is admitted that this is a separate portion and there is no dispute as to the identity of the land attached. subsequently, it is said, the accused party entered upon the land and reaped and took away the standing crops therefrom and thereby disobeyed the order of attachment. in these circumstances they have been convicted as mentioned above. it is contended first that the proceedings under section 145, criminal p.c., were not validly instituted because the land is in the joint possession of the parties. as a matter of fact it was not found that the land was.....
Judgment:
ORDER

S.K. Ghose, J.

1. Eleven persons were convicted under Sections 379 and 188, I.P.C, and each of them sentenced to pay a fine of Rs. 40, in default to undergo rigorous imprisonment for 7 weeks. These persons then petitioned to the Sessions Judge against conviction. The learned Judge rejected the petition except with regard to four of the petitioners, namely Bande Ali Sheikh, Derajtulla Sheikh, Asimuddin Sheikh and Ajer Sheikh. As regards them the learned Judge has made a reference recommending that they should be acquitted of the charges in respect of which they have been convicted on the ground that they were not parties to the proceedings under Section 145, Criminal P.C., out of which the prosecutions arose. For the reasons stated by the learned Judge 1 accept the reference and direct that these persons be acquitted of the charges under Sections 379 and 188, I.P.C. The fines, if paid, should be refunded.

2. As regards the remaining seven petitioners the question is whether the convictions and sentences passed thereunder should be maintained. It appears that on account of a dispute regarding paddy growing on a plot of land the Sub-divisional Magistrate of Kustia instituted proceedings under Section 145, Criminal P.C., and attached the land in dispute describing it by its touzi number and mentioning '2 annas 6 pies portion.' This however causes no difficulty because it is admitted that this is a separate portion and there is no dispute as to the identity of the land attached. Subsequently, it is said, the accused party entered upon the land and reaped and took away the standing crops therefrom and thereby disobeyed the order of attachment. In these circumstances they have been convicted as mentioned above. It is contended first that the proceedings under Section 145, Criminal P.C., were not validly instituted because the land is in the joint possession of the parties. As a matter of fact it was not found that the land was in the joint possession of the parties but the question is immaterial, having regard to the stage at which the order of attachment was issued. There was a dispute likely to cause a breach of the peace concerning the land and therefore the first condition of instituting a proceeding as under Sub-section (1) of Section 145, Criminal P.C., was fulfilled. Thereafter under Sub-section (4) the Magistrate was to enquire as to possession and it is under the second proviso to that sub-section-the Magistrate having considered that it was a case of emergency- that he was empowered to attach the subject matter of dispute pending his decision under that Section. This is what was done in this case and therefore the objection that is now raised is of no avail.

3. The next contention is that the petitioners could not properly be convicted under Section 379, I.P.C, though they might be convicted under Section 424, I.P.C. This is on the authority of the case reported in Queen-Empress v. Abayya (1899) 22 Mad 151. That however was a case of attachment by the Civil Court and it was pointed out that the possession remained with the owner, only he was forbidden to alienate or charge the crops. It was also pointed out that where that was not the case theft could be committed by the owner of crops under attachment removing them. In the present case as pointed out by the learned Judge the attachment was under Section 88, Criminal P.C., and actual possession was taken which was evidenced by the fact that there was a constable posted at the spot and while he was there the crops were taken away. The argument that standing crops were not attached but only the land was attached is of no avail as the dispute was about the standing crops and land must be taken here to include the crops. It seems to me therefore that the conviction of the seven petitioners is correct. The rule is therefore discharged.


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