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Jyoti Bhusan Das and anr. Vs. the State - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKolkata High Court
Decided On
Case NumberCriminal Revn. No. 854 of 1951
Judge
Reported inAIR1953Cal457
ActsCode of Criminal Procedure (CrPC) , 1898 - Section 539B; ;Indian Penal Code (IPC), 1860 - Sections 96 and 97
AppellantJyoti Bhusan Das and anr.
RespondentThe State
Appellant AdvocateS.S. Mukherjee and ;Kishore Mukherjee, Advs.
Respondent AdvocateSamarendra Nath Mukherjee, Adv. (No. 2)
Excerpt:
- .....was on the petitioners land. the petitioners therefore destroyed that portion of the drain. the learned sessions judge did not reject altogether the story of the claim over the land of the petitioners but he was of opinion that assuming that the drain was over their land, they should have waited and not taken the law into their own hands to undo the effect of the trespass. i do not pretend to understand the reasoning of the learned sessions judge and understand why they should submit to an act of trespass.3. further, it appears that the learned magistrate went and held a local inspection. at the time of the local inspection an unauthorised amin on behalf of the complainant carried out certain measurements and it appears that as a result of that the learned magistrate was of opinion.....
Judgment:
ORDER

Chunder, J.

1. This Rule was issued at the instance of two persons who were convicted by a Magistrate, First Class, Contai, and given a non-appealable sentence. A petition oi motion before the Sessions Judge was rejected by the Additional Sessions Judge of the district.

2. The facts briefly are that the Union Board had cut a drain which carried water and fouled the tank of the petitioners. I do not understand how in these civilised times the water of a reservoir could be so fouled by the action of a public body. Anyway, that was what was done. The petitioners considered that this drain trespassed upon a portion of the slope of their tank and the Union Board had no authority to trespass upon the slope of their land in that way by cutting a drain. The petitioners gave evidence of a proper pleader commissioner who had surveyed the lands to the effect that according to what he found the portion of the drain was on the petitioners land. The petitioners therefore destroyed that portion of the drain. The learned Sessions Judge did not reject altogether the story of the claim over the land of the petitioners but he was of opinion that assuming that the drain was over their land, they should have waited and not taken the law into their own hands to undo the effect of the trespass. I do not pretend to understand the reasoning of the learned Sessions Judge and understand why they should submit to an act of trespass.

3. Further, it appears that the learned Magistrate went and held a local inspection. At the time of the local inspection an unauthorised Amin on behalf of the complainant carried out certain measurements and it appears that as a result of that the learned Magistrate was of opinion that the portion of the drain was not on the petitioners' land but was on Union Board land. The petitioners wanted a copy of inspection report but they did not get it before judgment was delivered so that they had no opportunity to rectify any erroneous impression that the unauthorised measurements may have made in the mind of the learned Magistrate.

4. Considering all these reasons. I think that the convictions and sentences cannotstand and must be set aside. The Rule is madeabsolute. The fines, if paid, will be refunded.Conviction and sentence set aside.


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