1. Letter of Reference which was as follows: -
Under Section 438 of the Criminal Procedure Code, I have the honour to submit herewith the record of the marginally noted case for necessary orders by the Hon'ble Court.
2. The case for the prosecution was that one Kishori Mohan was a Bhuggattardar under one Jogeswari Gupta in respect of his homestead piece of land, that Kishori Mohan was at Nwadip for some time and that his brother was placed in charge of that bari, that one day in last November the landlord had a jack fruit tree worth Rs. 15 or Rs. 20 removed from the bari through his servants and that the servants thus committed an offence under Sections 426 and 352 of the Indian Penal Code.
3. The defences were that the tree removed was a dead one, that the tree was removed under the orders of the landlord who was entitled to it, that the servants removed it bona fide without any criminal intention, that Kishori had left and had disposed of the bari and that the land was in khas possession of the landlord.
4. The learned lower Court found that the tree removed was a dead one, that the brother of Kishori was in charge of the bari, that it was not in possession of the landlord and that the servants must have shared the criminal intention of the master. He accordingly convicted one of the accused under Section 426 of the Indian Penal Code and sentenced him to a fine of Rs. 10.
5. The case was tried summarily. It seems to me that the conviction is bad in law and should be set aside on the following among other grounds: -
(1)The facts proved and found do not constitute an offence under Section 426 of the Indian Penal Code. The cutting and removal of a dead jack fruit tree do not amount to its destruction or to such a change in a property or in its situation thereof as destroys or diminishes its value or utility or affects it injuriously. A dead jack tree cannot be of less value or less utility simply because it is cut and removed. It can only be used as timber or fuel wood. It can be used for those purposes only after it is cut. Such being the case the cutting and removal do not amount to a mischief as contemplated by Section 425 of the Indian Penal Code.
(2) The trying Magistrate was wrong in holding that a servant must necessarily share the criminal intention of his roaster. An absence of a finding that the servant himself intended to cause loss or damage vitiated the conviction under Section 426 of the Indian Penal Code, The facts of the case would show that the servant had probably no dishonest intention in cutting and removing the tree and that his conduct was bona fide.
(3) As a number of intricate questions of law were involved, this summary trial was bad.
(4) The dispute was of a civil nature and the parties should have been referred to the Civil Court.