1. This was a Rule calling upon the District Magistrate of Cuttack to show cause why the conviction of and sentences passed on the petitioner should not be set aside on the grounds, first, that the questions arising in the case are of civil rights and, secondly, that there was no jurisdiction to depute the Sub-Deputy Magistrate to hold the local investigation and to give his evidence in the course of the trial, and, thirdly, that as regards the second petitioner there is no finding as to his having taken any intentional part in the proceedings.
2. As regards the first two points, we think that the findings of the lower Court are conclusive that there is no question of civil right. The finding is clear that it was plot No. 138 from which the bamboos were cut, that it was in the possession of the complainant that the bamboos had been planted by his father and that he had the sole right to these bamboos. We need not enter into the rather inconsistent second defence that bamboos are trees and, therefore, cannot be cut except by the permission of the zemindar. Bamboos may stand on the kasht land of the zemindar and though they may in some cases be similar to trees, yet in most cases, as in this case, they can be and are grown by the tenants as a paying crop; and this was clearly laud laid out in 10 clumps for the express purpose of growing bamboos for the profit of the tenants. That being the finding and it being also held that the claim of right was a mere pretext and a sham, the dishonest intention to dispossess the complainant is apparent.
3. As regards the sending out of the Sub-Deputy Magistrate to hold a local investigation, it at most may amount to an irregularity, and we should have to consider, if the question arises, whether the defence had been prejudiced thereby. It is in no sense an illegality inasmuch as any person who has seen a place may give evidence in respect of it and inasmuch as the Court has the power under the Code of Criminal Procedure to summon any witnesses at any time before judgment. But we could not support the practice of examining witnesses after the defence is closed to bolster up the prosecution if it appeared that the evidence was prejudicial. But so far from that being the case, we find that the Magistrate has held that, apart from the evidence of the Sub-Deputy Collector, there is ample evidence on the question of possession and before us the evidence of this Sub-Deputy has been relied upon by the defence for the fact that certain bamboos had strayed over the boundary into the defendants' land. These we may remark in passing were only 7 bamboos and had nothing to do with the 200 which were cut away from the middle of the complainant's land. But it is clear that the only reason for which the Sub-Deputy was sent out was because the defence had deputed an Amin for the purpose of going and holding a local investigation and he was called to give evidence which it was most important to have scientifically tested. If anything could justify a Magistrate having recourse to the powers which are given to him by Section 540 of the Criminal Procedure Code, it would be in a matter of this kind where an expert, so to speak, is suddenly sprung upon the prosecution and they would have no opportunity of testing the expert's evidence. Be that as it may, we find that there has been no prejudice, and the order so far as the conviction of the first petitioner is concerned is upheld and the Rule must be discharged.
4. With regard to the second petitioner, we would draw attention to the remarks of Mr. Justice Woodroffe in the case of Hari Bhuimali v. Emperor 9 C.W.N. 974 : 2 Cr. L.J. 836. The petitioner No. 2 is the servant of petitioner No. 1 and he acted under the orders of his master and Woodroffe J., says: 'in most instances, no doubt, servants have full knowledge of the facts. But there must be some evidence from which the Court can infer such knowledge.' (See page 982).
5. Now in this case there is no finding of the lower Court that there was such knowledge and as far as we have been able to see from the record of the summary proceedings, there is no evidence to show when this accused entered into the service of the first petitioner, what position he held, how long he had been employed and where and whether he had been employed under such conditions as to be aware of all that preceded the occurrence as regards the dispute. For it is the case of the prosecution that petitioner No. 1 committed this offence as an act of revenge and because he wanted the complainant to give up the land to him. Now, in order to convict the petitioner No. 2, it must be clearly shown that he knew this intention of his master. We do not think that any presumption can be made as has been sought to be made by the learned Judge in this case.
6. We, therefore, make the Rule absolute as regards petitioner No. 2, set aside the conviction and sentence and direct that the fine, if paid, be refunded to him.