1. The facts of the case on which this rule has been granted are these; the petitioners ware convicted under Sections 143 and 379, I.P.C., and sentenced to a fine of Rs. 100 in default to three months' rigorous imprisonment under Section 379. No separate sentence was passed under Section 143, I.P.C.
2. The case against them was that, on 1st November 1925, they cut and took away the complainant's paddy. The defence was that the petitioners grew the paddy and so cut it.
3. The Magistrate found that the complainant was in possession and grew the paddy. Hence he convicted the petitioner as stated above. On appeal the learned Additional Sessions Judge held that there had been certain proceedings under Section 145, Criminal P.C., and the result of those proceedings was that, on the 28th of January 1925, the complainant was declared to be in possession, and further, that he would remain in possession till evicted in due course of law. Hence the learned Judge argued that it was idle for the appellants to produce evidence that they were in actual possession; for, even if it be so, they cannot be anything but trespassers. Hence he held that the conviction was right.
4. If I understand the learned Judge rightly, what he held is that it is useless to go into the question whether the accused were or were not in possession on the day of the occurrence, because, as trespassers, they had no right to be there and therefore they could be found guilty of stealing their own paddy even if they had grown it. The learned Judge has approached the case from an entirely wrong standpoint. We are not in the present case concerned with the title of either party to the land. What we are concerned with is who wore in possession on the day of the occurrence with or without title and who grew the crops in question. The order under Section 145 is only a piece of evidence to be taken into consideration in determining who is in possession. It would go no doubt to show that the complainant was in possession on the 23th January 1925, the date when it was made. But it is open to the accused to show that, in spite of the orders they were actually in possession or regained possession after the order and that they grew the crops and were in possession on the day o the occurrence.
5. The order of the learned Additional Sessions Judge must be set aside and the appeal re-heard in the light of these observations.
6. I have further considered this case, and, speaking for myself, I must confess that I feel considerable doubt as to the effect of the order under Section 145, Criminal P.C., and as to whether, in all the circumstances the possession claimed by the accused in this case can be said to have been lawful possession or possession which the Court could in any way recognize as a defence to the charges. As the order which my learned brother proposes to make, however, is to send the case back for re-hearing the appeal, and as it appears from the judgment of the trial Court that there is evidence as to possession apart from the order under Section 145, Criminal P.C., I do not feel disposed to deliver a dissenting judgment and I concur in the order which has bean made.