Debabrata Mookerjee, J.
1. These two petitioners were tried before the Banibon Union Bench in the district: of Howrah upon a charge under Section 447 of the Indian Penal Code. There was an additional charge under Section 504 of the Code against petitioner No. 1 Kalipada Das. under Section 447, the two petitioners were sentenced to pay a fine of Rs. 15/- each. In default of payment of the fines under that section, the petitioner Kalipada Das was sentenced to suffer simple imprisonment for seven days while petitioner Chittaranjan Das was sentenced to suffer simple imprisonment for five days. under Section 504 petitioner Kalipada was; further convicted and sentenced to pay a fine of Rs. 10/-, in default to suffer simple imprisonment for seven days.
2. There was an application under Section 71 of the Bengal Village Self-Government Act 1919 and the Additional District Magistrate, Howrah-set aside the conviction and sentence passed on the petitioner Kalipada Das under Section 504 of the Indian Penal Code, but affirmed the convictions and sentences under Section 447 of the Code on the two petitioners, who thereafter applied to this Court under Article 227 of the Constitution and obtained the present rule.
3. The prosecution case shortly stated was that the petitioners had trespassed on the homestead land of the complainant Kiron Bala Dassi and that the petitioner Kalipada had, in addition, abused her. She protested against the high handedness of the petitioners, but the latter touch no notice of her protest. The Bench believed the evidence that was adduced before it and convicted and sentenced the petitioners is stated above.
4. It Is contended in the first; place that the rules for the conduct of business before the Union Bench were not complied with and this rule led to a failure of Justice, It is said that only one of the several members composing of the Bench held a local inspection and his report was acted upon for the purpose of finding the petitioners guilty of the offences charged. It is said that this contravened Rule 4 of the Rules made under the Village Self-Government Act which reads as follows:
The Bench or Court may at any stage of the case or suit hold local enquiry in respect of any matter in dispute between the parties.
The word 'Bench' does not appear to have been defined, but Section 65 says:
Whenever a Union Board has been established for any Union, the Local Government may, by notification, appoint any two or more of the members of the Board to be a Union Bench, during their term of office as members of the Board, for the trial, in the whole or any part of the Union, of the offences specified in Sch. IV,' if committed within the limits of its jurisdiction or if the case is transferred to the Bench by a District Magistrate or Sub-Divisional Magistrate.
It is thus argued that the Bench would mean two or more members constituting,the Bench, In the present case, only one member held the inspection and made a report which was taken into account for the purpose of finding the petitioners guilty. This seems to me to be an illegality and I think there is substance in the contention that this non-compliance is not a mere irregularity which can be left unnoticed.
5. Again, on the date the accused persons Were examined it appears from the relevant extract of the order sheet of the Union Bench that only one of the petitioners made a statement in answer to questions put to him by the Bench, There is no record of any statement having been made by the other petitioner Chittaranjan, It may very well be that this petitioner did not make any statement, but the fact of his having been examined does in my view require to be stated in order to show that there was compliance with Rule 16 of the Village Self-Government Rules, That Rule is in these words:
When the accused appears or is brought before the Bench the particulars of the offence of which he is accused shall be stated to him and he shall be asked if he has any cause to show why he should not be convicted.
In my opinion, this is not a mere technical rule, but it has a purpose which is conducive to justice. As soon as a man is given the particulars of the offence of which he is accused, he may make a statement which might on the face of It be quite convincing so that the Union Bench may not think it necessary to proceed further with the matter. This indeed, I think, is a valuable right given to the person accused before a Bench and I do not consider it to be a mere technical omission on the part of the Bench that there should have been no record to indicate that this other person, namely. Chittaranjan Das was asked any question on his appearance before the Bench.
6. Even if, on a strict view of the matter, these non-compliances or breaches of the rules are held to be technical failures which ought not to be seriously viewed in consideration of the fact that it is only a body of laymen that constitutes the Union Bench, there is a more substantial ground, which I think it is impossible to ignore, vitiating the convictions in this case. I am not unmindful of the fact that this Court is not revising an order of a Court of inferior criminal jurisdiction and that the powers of this Court fiat have been involved in this application are Chose reserved to it under Article 227 of the Constitution of India, It is not every error or defect that can be remedied under the extraordinary provisions of the Article which can be invoked only in cases where there has been a substantial failure of justice and that again only with a view to keeping subordinate Tribunals within the bounds of their authority.
7. The substantial question is that on the allegations made and the evidence in the case it is extremely difficult to find that the petitioners were guilty of the offence of criminal trespass. It is quite clear that the petitioners had lands on three sides of the plot over which a fencing is said to have been put up It is said that in spite of the protest the fencing was constructed, but the fact remains that there are lands of the petitioners on three sides of the plot said to have been trespassed upon. The case of the petitioners is that they had put up the fencing on their own land.
In such circumstances, one would expect some definite evidence for the purpose of enabling the Tribunal that tries such charge to come to the conclusion that the elements of the offence under Section 447 of the Indian Penal Code were clearly established. The evidence must disclose an intention either to commit an offence or to insult, intimidate or annoy the complainant. There is no finding whatever reached by the Bench showing that the ingredients of the offence have been fulfilled.
It has been argued on behalf of the complainant that the Bench being composed of laymen could not reasonably be expected to know the technicalities of the law and to find that the elements of an offence have been established. Even if a formal finding is dispensed with, it is to be seen whether the evidence suggests a finding of criminal intent. As I have already observed the evidence is far from establishing the ingredients of the offence of criminal trespass. I cannot agree with the view that simply because it is the Union Bench which comes to deal with a criminal offence that the Bench could dispense with proof of the) essential elements of the offence.
It may be that certain technical rules of evidence have been relaxed and procedure simplified in order to assist laymen to do substantial justice. But that does not, in my view, import the notion that the Union Benches are absolved of their responsibility to insist upon materials j which will prove a charge or are relieved of the duty to see that the essential elements have been established. In these circumstances, I am bound to hold in the present case that there has been a failure of justice and that the Tribunal did not act within the bounds of authority in convicting and sentencing the petitioners under Section 447 of the Indian Penal Code.
8. In the result, this Rule is made absolute and the convictions and sentences are set aside.
9. The fines, if paid, will be refunded.