R.C. Mitter, J.
1. Three persons, Abdul Kadir, Maghful Kha and Majaf Kha have been convicted at a summary trial held by an Honorary Magistrate, Mr. S.M. Chaudhury, under Section 379 of the Indian Penal Code, for theft of paddy worth Rs. 20. Each of the said three persons has been sentenced to pay a fine of Rs. 15, in default to suffer five weeks' rigorous imprisonment.
2. The case of the complainant, Banka Nath, is that the said three persons had cut and removed paddy from a plot of land (plot No. 180) which was in his possession as a bhagidar under one Hem Nalini De, wife of Devendra Chandra Dey, the paddy having been grown by him. He produced documentary evidence to show that the land belonged, to Hem Nalini and to prove his possession, he examined some witness and proved a registered kabuliyat given by him in favour of Hem Nalini.
3. The defence proved the following facts. Rashid Khan and others instituted a suit for partition against Abdul Kadir and others and by the decree passed therein plot No. 180 and other plots were allotted to Abdul Kadir, but as the latter could not pay the costs of that suit the lands allotted to him were sold by the Court and at the Court sale Abdul Kadir's brother-in-law Mahomed Ali purchased the same, took possession of the lands purchased by him and that at his instance and with his direction the paddy was cut and removed. On these facts the defence urged that the paddy was not in the possession of the complainant, but in law was in the possession of Mohammad Ali and hence there was no theft. They also took the plea that the act of cutting and removing the paddy was not done dishonestly but under a bona fide claim of right. The learned Magistrate found that possession of the land and paddy at the time of removal was in the complainant and that there was no bona fide claim of right, the claim being a mere pretence.
4. It has been proved that neither Hem Nalini nor the complainant were parties to the partition suit, that the complainant was in actual possession and had grown the paddy and that Mohammad Ali did not take actual possession under Order XXI, Rule 95 of the Code of Civil Procedure, but took only symbolical possession under the provisions of Order XXI, Rule 96. This has been proved by the peon's return for delivery of possession. The learned Magistrate held that the delivery of possesion so taken through Court did not take away possession of the land from complainant who both in fact and in law remained in possession, as before, of the land on which paddy was growing.
5. The learned Session Judge has recommended the acquittal of the accused persons on three grounds. He says: (1) that as the complainant did not take any proceedings under Order XXI, Rule 100 of the Civil Procedure Code, when symbolical possession was delivered by the Court to Mohammad Ali, in the eye of law possession vested in the latter and there could not be a conviction for theft when paddy was removed at the direction of Mohammad Ali.
6. He says secondly that 'the decision of the case involved questions of title and possession and also civil law relating to possession and as such this case ought not to have been tried summarily'. The third ground on which the learned Sessions Judge has recommended the acquittal of the three persons is that there has been irregularity in the trial. Before me the learned Advocate appearing for the accused has urged one further ground, namely, that the act complained of was done under a bona fide claim of right. I am afraid I cannot accept any of the grounds as sound and must reject the reference.
7. It is well-settled that delivery of symbolical possession is only effective against the judgment-debtor. It is of no effect as against a third person and his possession is not disturbed or affected in the least by delivery of such possession to a purchaser at a Court sale. The complainant was in actual possession. This has been proved by his witnesses and by his registered kabuliyat. The learned Sessions Judge has said that after delivery of symbolical possession to Mohammad Ali the complainant ought to have started proceedings under Order XXI, Rule 100 of the Civil Procedure Code, and he not having done so possession remained with the auction-purchaser Mohammad Ali. On this point the learned Sessions Judge is hopelessly wrong. By the delivery of symbolical possession the complainant was not dispossessed at all and unless dispossessed physically, no proceedings under Order XXI, Rule 100, would have been maintainable at his instance. See Ibrahim Mullick v. Ramjadu Rakshit 30 C. 710. The learned Magistrate was quite right in holding that the complainant was in possession and the paddy was removed from his possession. From the facts it is also quite clear that the accused had no bona fide claim of right or did not act under the directions of a person who had any bona fide claim. A mere claim that the property passed to Mohammad Ali is not enough. Hem Nalini was in possession through bhagidars for many years. She was ignored in the partition suit, and no document was produced on behalf of the accused, save the partition decree which was not binding on her, to show that the land belongs to the parties to the partition suit or was ever in their possesion. The purchaser of Abdul Kadir's allotment was his own brother-in-law who lived 12 miles away, and after the Court sale. Abdul Kadir, whose interest was ostensibly sold, himself went with others including the other two accused to cut and remove the paddy. I accordingly held that the learned Magistrate is right in the view he has taken of the case.
8. I cannot also accept the view taken by the learned Sessions Judge that the case ought not have been tried summarily. The case does not in my judgment involve an investigation of any complicated question of fact or law. The possession of the complainant is proved by a few witnesses and conclusively by his kabuliyat, and that the possession obtained by Mohammad Ali was symbolical possession only is proved by one document only, namely the peon's return for delivery of possession and the case depend mainly on the consideration of the said two documents and the deposition of a few witnesses.
9. Regarding the objection that the procedure adopted at the trial the matter stand thus. After the close of the prosecution case the accused persons were examined and their statements were recorded by the Magistrate in English. The said statements were signed by all the three accused and the usual certificate was appended by the Magistrate that the statements were made in his presence and hearing and fully recorded. The peshkar had, however, taken signatures of the three accused persons on three blank forms which were left blank, but the statements of the accused in Bengali language were put in after the Sessions Judge was moved. In a summary trial the Magistrate is not required to record the statement of the accused made in pursuance of an examination under Section 342 of the Criminal Procedure Code in full and in the language in which it was made as Section 304, Clause (1), does not apply to summary trials. The records of the statements made and recorded in English by the Magistrate which are on the record were admittedly there before the trial concluded and before the Sessions Judge was moved and there are no materials to show that the said record by the Magistrate in English was made at any other time than when the prosecution closed its case. In my judgment there has been sufficient compliance with the law by the Magistrate in this respect. I accordingly uphold the conviction and sentence passed by the Magistrate.