1. The petitioners Naurang and Nanda were convicted by a second class Magistrate for an offence under Section 447, I. P. C., and sentenced to a fine of Rs. 25/- each or 20 days' simple imprisonment in default. Their appeal was dismissed by the learned District Magistrate of Chamba on 3-5-1951, and now they have coma up in revision to this Court.
2. The learned counsel for the petitioners challenged the finding of fact as to the land in question having been in possession of the complainant Janta. A concurrent finding of fact has, however, been recorded by both the Courts below on that point, and, as the only ground urged in this connection was that on a proper appraisal of the oral and documentary evidence on the record a different finding should have been arrived at, there is no justification for interference with that finding.
3. Nor is there any force in the contention that the alleged act of the petitioners amounted merely to a civil as distinguished from a criminal trespass. The difference between a civil and a criminal trespass is that in the latter one of the criminal intentions mentioned in Section 441, I. P. C., should be present. So far as that is concerned, there is a clear finding of the learned District Magistrate that the trespass was committed by the petitioners with the intention of annoying the complainant who was in possession of the property.
4. The main point pressed by the learned counsel for the petitioners, however, was that the second class Magistrate had no jurisdiction to try the petitioners for the offence in question. It appears that a complaint was filed by Janta against the petitioners on 11-4-1950 in respect of offences punishable under Sections 426 and 447, I. P. C. The offences were alleged to have been committed on the same date at village Chili in pargana Himgiri. A Panchayat constituted under the Punjab Panchayat Act (XI (11) of 1939), made applicable to Himachal Pradesh on 25-12-1948 under the Himachal Pradesh (Application of Laws) Order, has been in existence at Himgiri since 21-12-1946. The existence of this Panchayat, as alleged by the learned counsel for the petitioners and just stated, was not controverted by the learned Government Advocate. Under Section 26 of the said Act a Panchayat has jurisdiction to try upon complaint any of the offences specified in Schedule 1 to the Act, and offences under Sections 426 and 447, I. P. C., find place in the Schedule. Section 28 of the Act lays down that any Magistrate before whom a complaint or report by the police of any offence triable by a Panchayat is brought shall transfer the proceedings to the Panchayat. No such action was taken by the second class Magistrate in the present case in respect of the complaint filed before him by the complainant Janta. It was therefore argued by the learned counsel for the petitioners that the offences being triable exclusively by the Panchayat, the proceedings against the petitioners in the Court of the second Class Magistrate were void. His argument obviously fell within Section 530 (p), Criminal P. C., although he did not specifically refer to that provision.
5. The learned Government Advocate met this argument by referring to Section 529 (e) of the Code and cited the following rulings: 'Bengali Gope v. Emperor', AIR (13) 1926 Pat 400, and 'Chunni Lal v. Emperor, AIR (20) 1033 All 399. This provision relates to the taking cognizance of an offence under Section 190, Sub-section (1), Clause (a) or (b) by a Magistrate not empowered by Jaw to do so. These provisions of Section 190 relate to two of the three ways in which cognizance of an offence is to be taken by a Presidency Magistrate, District Magistrate, Sub-Divisional Magistrate or any other Magistrate especially empowered in this behalf. It is, however, not merely the taking cognizance of the said offences by the second class Magistrate which is questioned in the present case, but the trial of the petitioners by that Magistrate for those offences. That being so, the action of the second class Magistrate did not amount merely to an irregularity not vitiating the proceedings contemplated by Section 529. For the same reason the rulings relied upon by the learned Government Advocate have no application. On the contrary, this was a case of a Magistrate trying an offender although not being empowered by law to do so within the intendment of Section 530(p), Criminal P. C., inasmuch as trial of the petitioners for the offences in question lay within the exclusive jurisdiction of the Panchayat at Himgiri under the aforesaid provisions of the Punjab Panchayat Act. The proceedings in the Court of the second class Magistrate were therefore void.
6. The question however is whether this Court should interfere in exercise of its revisional jurisdiction even though the proceedings in the Court of the trying Magistrate were void. Now, the High Court's powers of revision under Section 439, Criminal P. C., are unfettered, and it will exercise those powers wherever it feels that there has been a miscarriage of justice. That being so, it will not set aside even proceedings which were void if the interests of justice do not demand it. I find support for this view in 'King Emperor v. Ayyan', 24 Mad 675 and 'In re Perianna Mudali', AIR (29) 1942 Mad 81. In the view that I take of the matter I prefer to follow the Madras rulings just cited rather than the Calcutta ruling cited by the learned counsel for the petitioners and reported as 'Tollyganj Municipality v. M. Masiah Ahmed,' A.I.R. (29) 1942 Cal 288. The Calcutta ruling set aside the order of the Magistrate on the mere ground of its having been passed without jurisdiction without going at all into the question of any possible miscarriage of justice. It has therefore to be seen whether there are any circumstances in this case justifying the inference that the trial of the petitioners by the second class Magistrate rather than by the Panchayat of Himgiri has resulted in a miscarriage of justice.
7. No miscarriage of justice was pointed out by the learned counsel for the petitioners, his only argument having been the technical one of the petitioners having been convicted by a Magistrate not empowered to do so. On the contrary, there are the following facts worthy of consideration. The petitioners have not been deprived of any right of appeal or revision. The concurrent findings of fact against them are unchallengeable. That being so, even if I were to quash the proceedings so far had against them and to order a retrial, that would only lead to a harassment of them. It is also to be noted that no objection as to want of jurisdiction was taken by or on behalf of the petitioners in any of the two Courts below. It is clear therefore that in assuming the jurisdiction which he did not under the law possess the second class Magistrate cannot be said, to have clutched jurisdiction by having intentionally ignored the provisions of Section 28 of the Punjab Panchayat Act. For all these reasons I am of the opinion that there has been no prejudice to the petitioners or any miscarriage of justice, and that therefore no interference by this Court in exercise of its revisional jurisdiction is called for in the present case.
8. The revision is rejected and the conviction and sentences of the petitioners are maintained.