C.C. Ghose, J.
1. In this matter six persons were put on their trial before the Honorary Magistrate at Alipore on a charge of rioting with the common object of taking possession of the complainant's land and assaulting the complainant's durwans. The date of occurrence was the 9th September, 1924. It appears that this land, which is situate within the suburb of Calcutta, consisted of 7 1/2 bighas. The complainant's case was that it was purchased in 1903 by Mrityunjoy Sirdar and Khirode who had since then cultivated paddy, lady's fingers, brinjals, etc., on the land. But on the day complained of when the complainant, who is the son-in-law of Khirode, went to the land with Khirode's son and two durwans, the accused persons, two of whom are the superior landlords, assaulted the durwans, drove away the complainant, and in the evening set to work to construct a shed on the land. It appears that directly after the occurrence took place the complainant came to the Police Magistrate and reported the matter, and again in the evening, when he found; the accused party constructing the hut, he reported the matter to the Assistant Commissioner of Police who sent the Inspector who arrested five of the accused on the spot.
2. The defence set up was that the land was never in occupation of Khirode, and was all along in possession of accused No. 6, and that when the hut was newly completed, the complainant went there along with the two durwans who were drunk, and forcibly tried to demolish the hut, and were driven off. It was thus the case of both sides that there was some occurrence on the spot on the day in question.
3. The Honorary Magistrate recorded evidence at very great length, and finally, relying mainly on the statement of one prosecution witness given in cross-examination, to the effect that the construction of the, hut commenced about eight or ten days before the day of the present occurrence, concludes by saying, 'In view of the fact that the case under Section 145 of the Cr.P.C. is still pending, and the hands of the Magistrate who will hear it ought to be left unfettered, I am of opinion that I should not say anything beyond giving the accused the benefit of the doubt, and acquit them under Section 258 of the Cr.P.C.'
4. Against this order of acquittal the present Rule was obtained. The learned Advocates appearing on both sides admit that the judgment is not a satisfactory one. It is urged on behalf of the petitioners, and we think rightly, that the Magistrate was bound to find as to the fact of possession. There was undoubtedly a serious riot and the durwans were seriously injured. The Honorary Magistrate has set out the case on the evidence as to possession, but has come to no definite finding on the same. The fact that there was a 145 proceeding pending, arising out of this riot, is no reason why he should not have come to a proper decision on this point. For on this question of possession depends the finding as to whether the present petitioners or the opposite party were the aggressors in the incident which undoubtedly took place. The incident was a serious one, and though we are loath to interfere with an order of acquittal, we must hold that in this case there is no satisfactory judgment.
5. We, therefore, set the order of acquittal aside and order that this case be re-tried by another Magistrate.