T.P. Mukherji, J.
1. This rule is directed against the conviction of the two petitioners under Section 447, Indian Penal Code, and the sentence of a fine of Rs. 50/- each in default rigorous imprisonment for three weeks passed on them thereunder. The two petitioners were also convicted under Section 426/109, Indian Penal Code and under Section 426, Indian Penal Code respectively and were sentenced to pay a fine of Rs. 100/. each in default to rigorous imprisonment for three weeks. C.S. plot No. 4043 of mouza Kasba belongs to the mother of P.W. 1 - the informant in the case. The prosecution case is that on March 2, 1963 petitioner No. 1 with the help of petitioner No. 2 and some other persons dug earth from that plot causing damage to the land to the extent of RS. 2,000/.
2. The defence was a denial that any earth was cut or removed from the land in question and a second string of the defence was that there was a contract for sale of the land by P.W. 1's mother to petitioner No. 1 and that the cutting of the earth, if any, was in exercise of a bona fide claim of right.
3. The learned Magistrate found that P.W. 1 was in possession of the land, that the defence case of a contract for sale thereof was a myth and the on the date in question petitioner No. 1 with the help of petitioner No. 2 and others did cut and remove earth from that land. On his finding the learned Magistrate found both the petitioners guilty under Section 447, Indian Penal Code and he also found them guilty under Sections 423/109 and 426, Indian Penal Code respectively. The petitioners obtained this rule against their conviction and the sentence passed on them by the learned Magistrate.
4. Mr. Mitra, the learned Advocate appearing in support of the rule contended first that the procedure for trial that was followed by the learned Magistrate was wholly erroneous. According to him, the procedure that ought to have been followed was the one prescribed in Section 251A of the Code of Criminal Procedure. His second contention was that on the evidence of P.W. 1 herself in cross-examination to the effect that at the time of the occurrence petitioner No. 1 was standing on his own land nearby, the conviction of petitioner No. 1 under Section 447, Indian Penal Code at any rate was bad in law. Thirdly, it was contended that the land not being, on the prosecution evidence itself, in the actual physical possession of P.W. 1 and/or her mother, the conviction under Section 447, Indian Penal Code was not maintainable. Another contention of Mr. Mitra was that there being no evidence that petitioner No. 1 had abetted the commission of mischief, his conviction under Sections 426/109, Indian Penal Code was not maintainable. Lastly, it was contended that the evidence on record would not justify an inference that any mischief in law had been committed.
5. Both the charges framed against the petitioners in the case were triable according to the procedure for trial of summons cases which is prescribed in chap. 20 of the Code. This case was tried summarily under chap. 22 of the Criminal Procedure Code and in accordance with the procedure prescribed in chap. 20 as required by Section 262 of the Code. According to Mr. Mitra, in any case instituted on a police report whether triable according to warrant or the summons procedure, the procedure to be followed by the Magistrate is the one prescribed in Section 251 of the Code. This contention is wholly unacceptable. Section 251A of the Code follows from Section 251 which prescribes that in the trial of warrant cases by Magistrate the Magistrate shall in any case instituted on a police report follow the procedure specified in Section 251A. Summons cases do not come within the purview of Section 251 and necessarily of Section 251A of the Code. This disposes of the first contention raised on behalf of the petitioners.
6. The second contention must be given effect to. The evidence of P.W. 1, I find in cross examination, is clear on the point that petitioner No. 1 was standing upon his own land at the time of the incident. If that be so, his conviction under Section 447, Indian. Penal Code, must be set aside in view of the fact that he had himself never trespassed on the laud in question.
7. So far as the third contention is concerned, it appears from the evidence that P.W. 1 lives away from the land. The land itself is not in actual physical possession of anybody. It adjoins the land of petitioner No. 1, who according to the prosecution gob the earth cut and removed from the land in dispute with the help of petitioner No. 2 and others. According to the learned Magistrate it is P.W. 1 who is in actual physical possession of the land. The nature of possession would depend on the nature of possession the land is capable of. It being the prosecution case and evidence that the land gets submerged during the rains and is not capable of actual physical possession must be held to rest with the person entitled thereto The evidence in the case further is that P.W. 1 occasionally comes to look after her land. I find no reason not to accept the finding of the trial Court, that P.W. 1 is in possession of the land in dispute.
8. The next contention relates to the conviction of petitioner No. 1 under Section 426/109, Indian Penal Code. The evidence of P.Ws. 1 and 2 in the case is that it is petitioner No. 1 who got the earth out from the land with the help of others. That evidence has been accepted the manner and nature of the cutting of the earth as deposed to by the witnesses may very well give rise to an inference of abetment by petitioner No. 1. I find no reason to interfere with the conviction of petitioner No. 1 in this regard. Regarding mischief, the evidence appears to be that earth woe cut from the land by digging into it upto the depth of the height of a man. It is pointed out that earth dug from the land was just heaped on another portion thereof which resulted in raising the level of that portion of the land which had a lower level. Improving a portion of the land by causing mischief on another portion thereof would not necessarily mean that the land was being improved. If earth was dug upto that depth as de-J posed to by the prosecution witnesses certainly I mischief was caused.
9. In view of all that I have stated above the conviction of petitioner No. 1 under Sections 426/109, Indian Penal Code and the conviction of petitioner No. 2 under Sections 447 and 426, Indian Penal Code must stand, but the conviction of petitioner No. 1 under Section 447, Indian Penal Code must be set aside.
10. The rule accordingly stands discharged with this modification that the conviction and 3entence passed on petitioner No. 1 under Section 447, Indian Penal Code are set aside. Fines, if paid, by petitioner No. 1 in connection with his conviction under Section 447, Indian Penal Code be refunded. The conviction and sentence of the two petitioners under the other sections are affirmed.