1. This is a referenda under Section 438 of the Cr. P.C. made by the learned Sessions Judge of Birbhum.
2. It appears that the two accused, who were father and son, were convicted of an offence under Section 379 of the Indian Penal Code in respect of two trees which they cut down either partly or altogether.
3. The facts show that they were admittedly occupying a pachai shop for about three years and that upon the bank of a tank near by, these trees were growing in what formed the compound of the house occupied by the accused.
4. The learned Sessions Judge has given his opinion that the complaint does not disclose an offence under Section 379 of the Indian Penal Code, inasmuch as the trees are admitted to have been on the holding in possession of the accused. That is an admission which disposes of the case because the offence under Section 379 is an offence against possession.
5. It is said by the learned vakil appearing for the complainant that an admission in these circumstances should not be held necessarily binding upon his client in a proceeding of this kind which is not a judgment and in which the learned Sessions Judge does not come to any decision on the lines of a judgment. But it is quite clear that if upon the proceedings before the learned Judge upon which the reference is made, admissions of fact should be made by either party, then those admissions of fact ought to be accepted by this Court for the purpose of the reference, and in the present case, it appears from the order sheet that before the motion for reference was made by the accused notice was served upon the opposite party and that pleaders for both parties were heard. We have, however, been referred to the judgment of the trying Magistrate in connection with what is said to be a mistake with regard to these admissions; and although there are certain statements there, which taken by them-selves might be construed into a finding that the compound in which these trees grew was not in possession of the accused, there are, on the other hand, other statements which would certainly lead to that conclusion.
6. I would, therefore, accept the reference, set aside the conviction and the sentence and direct that the fine, if paid be refunded
7. I agree.