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Kashi Nath Pathak and anr. Vs. Kitu Rajwar and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKolkata High Court
Decided On
Case NumberCriminal Revn. Nos. 1138 and 1139 of 1962
Judge
Reported inAIR1964Cal436,1964CriLJ405,68CWN710
ActsCode of Criminal Procedure (CrPC) , 1898 - Section 195(1); ;Indian Penal Code (IPC) - Sections 114, 143, 144 and 188
AppellantKashi Nath Pathak and anr.
RespondentKitu Rajwar and ors.
Appellant AdvocateHemanta K. Mitra, Adv.;Birendra N. Banerjee, Adv.
Respondent AdvocateN.C. Banerjee, Adv. in Cri. Revn. No. 1138 of 1962 and ;P.S. Basu, Adv. in Cri. Revn. No. 1139 of 1962
DispositionRevision application fails
Cases ReferredHuq v. State of West Bengal
Excerpt:
- .....setting aside an order of conviction and sentence under ss. 143,144 and 144/ 114 of the indian penal code.2. the prosecution case was as follows : the petitioners are the owners of c. s. plot no. 1130 of mouza birgiri. this plot is known as dakshinabaid land. the petitioners are also owners of some other land known as bansihahal land. the petitioners executed usufractuary mortgage of the dakshinabaid land in favour of hurar majhi and of the bansibahal land in favour of banku rajwar on june 27, 1945. the petitioners paid back the dues on the mortgages on april 11, 1959 and took back possession of the lands. the petitioners then ploughed the lands. transplantation was completed on bansibahal land. transplantation was also done in a portion of dakshinabaid land. thereafter brahmananda.....
Judgment:
ORDER

R.N. Dutt, J.

1. This revisional application is directed against an appellate order of acquittal setting aside an order of conviction and sentence under Ss. 143,144 and 144/ 114 of the Indian Penal Code.

2. The prosecution case was as follows : The petitioners are the owners of c. s. plot No. 1130 of Mouza Birgiri. This plot is known as Dakshinabaid land. The petitioners are also owners of some other land known as Bansihahal land. The petitioners executed usufractuary mortgage of the Dakshinabaid land in favour of Hurar Majhi and of the Bansibahal land in favour of Banku Rajwar on June 27, 1945. The petitioners paid back the dues on the mortgages on April 11, 1959 and took back possession of the lands. The petitioners then ploughed the lands. Transplantation was completed on Bansibahal land. Transplantation was also done in a portion of Dakshinabaid land. Thereafter Brahmananda Pathak the Opposite Party in Revision Case No. 1139 raised objections. The petitioners thereupon filed a proceeding under Section 144 of the Code of Criminal Procedure on August 6, 1959. Orders were passed in this proceeding restraining opposite parties 1 to 7 in Revision Case No. 1138 from interfering with the petitioners' possession in the Dakshinabaid land. Subsequently on August 12, 1959 the petitioners filed an application before the Sub-Divisional Magistrate alleging that opposite parties 1 to 7 in Revision Case No. 1138 were threatening to assault the petitioners if they would go to Dakshinabaid land for further transplantation. The Sub-Divisional Magistrate directed the Police to render assistance to the petitioners in the work of further transplantation on that land. On August 13, 1959, the petitioners and their labourers accompanied by some Policemen went to the Dakshinabaid land for further transplantation when opposite parties 1 to 7 in Revision Case No. 1138 together with Brahmananda, the Opposite Party in Revision Case No. 1139 and some other persons armed with lathis, swords and axes assembled on that laud; Brahmananda gave orders to assault the petitioners and opposite parties 1 to 7 in revision Case No. 1138 threatened the petitioners. One of the Policemen, an Assistant Sub-Inspector of Police protested but to no effect. Then he sent a constable to Purulia for further Police assistance. One Sub-Inspector of Police, with an armed force, later came to the place and arrested opposite parties 1 to 7 in revision case No. 1138. Brahmananda, the opposite party in revision case No. 1139, was later arrested.

3. On these allegations opposite parties 1 to 7 in revision case No. 1138 and two other persons, Sibu and jitu were charged under Sections 447 and 144 of the Indian Penal Code and Brahmananda, the opposite party in revision No. 1139 was charged under Ss. 144/ 447/114 of the Indian Penal Code. All of them pleaded not guilty. Their defence was that opposite parties 1 to 7 in revision case No. 1138 were the owners of Dakshinabaid land and were all along in possession of the same. It was further said that no such incident occurred on August 13, 1959 and that they did not actually go to the Dakshinabaid land on that day but the petitioners got them arrested from some other land known as Situbandh land.

4. The learned Magistrate acquitted Sibu and Jitu of all the charges. The learned Magistrate also acquitted opposite parties 1 to 7 in revision case No. 1138 of the charge under Section 447 of the Indian Penal Code on the finding that the prosecution under Section 447 of the Indian Penal Code was bad in law in view of Section 195(1):(a) of the Code of Criminal Procedure as there was no complaint from the Magistrate whose order under Section 144 of the Code was violated. Similarly Brahmananda was acquitted of the charge under Section 447/114 of the Indian Penal Code. The learned Magistrate however convicted opposite parties 1 to 5 and 7 in revision ease No. 1138 under Section 144 of the Indian Penal Code and opposite party No. 6 in revision case No. 1138 under Section 143 of the Indian Penal Code and sentenced opposite parties 1 to 5 and 7 to rigorous imprisonment for 1 year each and opposite party No. 6 to rigorous imprisonment for four months. The learned Magistrate also convicted Brahmananda opposite party in revision case No. 1139 under Section 144/114 of the Indian Penal Code and sentenced him to rigorous imprisonment for one year. The opposite parties 1 to 7 in revision case No. 1138 filed an appeal and opposite party Brahmananda filed a separate appeal against this order of conviction and sentence. The learned Sessions Judge who heard these two appeals together, acquitted all the opposite parties of the respective charges.

5. The petitioners have now come in this revisional application against this order of acquittal.

6. It appears that the learned Sessions Judge has held that the prosecution under Ss. 143, 144 or 144/114 was bad in law in view of Section 195 (1) (a) of the Code of Criminal Procedure as there was no complaint from the Magistrate whose order under Section 144 of the Code was violated. Mr. Mitra, who appears for the petitioners submits that the learned Sessions Judge went wrong in law in holding that Section 195 (1) (a) is a bar to the prosecution under Section 143, 144 or 144/114 of the Indian Penal Code. It appears that there was an order passed by a Magistrate under Section 144 of the Code of Criminal Procedure restraining the opposite parties from interfering with the petitioners' possession of Dakshinabaid land. The allegation is that the opposite parties did interfere with the petitioners' possession of that land. It is therefore alleged that the opposite parties must have committed an offence under Section 188 of the Indian Penal Code. No court can take cognizance of an offence under Section 188, I. P. C. except on the complaint of the Magistrate whose order was violated but the prosecution here is not for an offence under Section 188 of the Indian Penal Code. The prosecution is for an offence under Sections 143, 144 and 144/114,I. P. C. Mr. Bose, who appears for Brahmananda, the opposite party in revision case No. 1139 refers to the decision in the case of Basir-ul-Huq v. State of West Bengal, reported in : 1953CriLJ1232 . It appears that the learned Sessions Judge has also referred to this decision. It seems to me however, that the learned Sessions Judge missed the real point of this decision. The Supreme Court has not said that if in the course of the same transaction several of. fences are committed and in respect of some of the offences no cognizance can be taken as provided for in Section 195 (1) of the Code, there can be no prosecution for the other offences also except as provided for in Section 195 (1) of the Code. The Supreme Court has on the other hand held that Section 195 (1) does not bar the trial of an accused for a distinct offence disclosed by the same facts and which is not included within the ambit of that section. What the Supreme Court has said is that the provisions of Section 195 (1) cannot be evaded by resorting to devices or camouflages. The Supreme Court has laid down a test also. The test is whether the facts disclose primarily and essentially an offence for which complaint of the court or of the public servant is required. Here the petitioner's allegation was that they were in actual possession of the land and that the opposite parties formed an unlawful assembly armed with lathis, swords and axes and trespassed into the Land. It is true that the allegations prima facie make out an offence under Section 188 of the Indian Penal Code also but it cannot be said that the facts disclose primarily and essentially an offence under Section 188 of the Indian Penal Code or that the prosecution under secs. 143, 144 and 144/114, Indian Penal Code or for the matter of that, under Section 447, I. P. C. was a device or camouflage to evade the provisions of Section 195 (1) of the Code. The decision of the learned Sessions Judge that the prosecution under Sections 143, 144 and 144/114, Indian Penal Code is bad in law in view of the provisions of Section 195 (1) (a) of the Code cannot, therefore, be sustained and is set aside.

7. The learned Sessions Judge considered the merits of the prosecution allegation also and came to the findings that the common object alleged in the charge was not proved and that the opposite parties did not assemble as alleged on the Dakshinabaid land with the common object of ousting the petilioner from that land or for obstructing and threatening them. The common object alleged in the charge is 'ousting Kashinath and Kangal i. e. the petitioners, from C. S. Plot No. 1130.' When we look to Section 141 of the Indian Penal Code, we find that such a common object is not included in either of the clauses contained therein. The learned Magistrate has in his judgment said that the common object alleged in the charge really meant 'by show or threat of force, preventing the petitioners from doing what they were legally entitled to do, namely, to transplant paddy on the land.' It is difficult to follow how the learned Magistrate came to think that 'ousting the petitioner from C. S. Plot No. 1130' really meant 'preventing the petitioners from transplanting paddy by show or threat of force.' Mr. Mitra submits that the common object alleged in the charge really comes either under the 4th clause or under the 5th clause. But the charge framed does not recite 'by means of Criminal force or show of criminal force.' Criminal force or show of criminal force is an essential ingredient of both the 4th and the 5th clause but the charge framed is silent about this. Mr. Mitra further submits that even though the charge may be defective the opposite parties were not prejudiced at the trial. It is not really a question of the charge being defective but it is in fact a question of no charge under Section 144 of the Indian Penal Code inasmuch as the essential ingredient of the common object as contained in Section 141 of the Indian Penal Code, is absent. The learnedSessions Judge was therefore right when he held that there could be no conviction on the charge as framed.

8. The learned Sessions Judge finally considered the evidence on record and came to his finding that it was not proved beyond reasonable doubt that the opposite parties had assembled with the common object of obstructing or threatening the petitioners. The learned Magistrate found that the opposite parties had assembled with the common object of preventing the petitioners from transplanting paddy on. Dakshinabaid land. The learned Sessions Judge has set aside this finding, Mr. Mitra, argues that the learned Sessions Judge was not justified on the evidence on record in setting aside the finding of the learned Magistrate. This is a finding of fact and the learned Sessions Judge as the final court of fact has held that the opposite parties did not assemble for the purpose of obstructing or threatening the petitioners. Mr. Mitra submits that the learned Sessions Judge has not considered all the evidence on record. It appears however that the learned Sessions Judge did consider all the evidence on record as also the circumstances of the case. He has given his reasons for not relying on the evidence of the petitioners and their witnesses. Mr. Mitra argues that though the Policemen were disinterested persons, the learned Sessions Judge has said that there was no disinterested witness. The learned Sessions Judge used the words 'disinterested' witness in the sense of disinterested local witness. He did consider in details the evidence of the Policemen and taking the evidence and the circumstances as a whole, he could not believe the prosecution version. I cannot, in revision re-consider the evidence to find out if some other conclusion could have been arrived at. But on a consideration of the materials on record I cannot say that the conclusion of the learned Sessions Judge is unreasonable.

9. Thus though the decision of the learned Sessions Judge about the bar of Section 195 (1) of the Code of Criminal Procedure is set aside, the revisional application must fail. The rule is, therefore, discharged.


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