Patna High Court
Ghana Mahapatra And Ors. vs Emperor on 25 June, 1929
Equivalent citations: 123IND. CAS.78, AIR 1929 PATNA 710
JUDGMENT James, J.
1. These proceedings arise out of an occurrence which is alleged to have taken place in Balasore District on 12th August, 1928. It is alleged that on that date certain men of the Raja of Nilgiri intentionally damaged the crops of a number of raiyats on land which was claimed as private land of the Raja. On the 14th August information was lodged at the Khaira Police Station, an entry made in the Station diary, and the informants were referred to Court, On the 17th, one of the raiyats, named Maguni Patra complained before the Sub-Divisional Magistrate against certain of the applicants now before the Court and his complaint was referred to the local chaukidari president for enquiry and report under Section 202, Criminal Procedure Code. On the 28th August while this enquiry was pending, Radha Patra and other raiyats presented at the Police Station a petition which was ultimately referred to the Superintendent of Police under whose orders a charge-sheet was submitted against the persons accused by the villagers. The case was duly transferred for trial to Babu T. N. Mitra, Deputy Magistrate of Balasore. In the meantime the president made his report under Section 202, with the result that Anant Naik, one of the applicants now before this Court, was summoned for an offence tinder Section 42.6, Indian Penal Code. On the 6th November, when this case came on for tearing, the complaint Maguni Patra was absent; and Anant Naik was acquitted under Section 247, Criminal Procedure Code. In the case based on the Police report, the Deputy Magistrate Babu T. N. Mitra framed a charge against the accused for rioting by damaging the crops of three men among the informant-tenants, Radha Patra, Khetra Patra and Abhira Patra. The charge was framed under Section 147, Indian Penal Code, setting out as the common object of the unlawful assembly the intention to damage and destroy the paddy of these three men. On the 21st December, 1928, Babu T. N. Mitra acquitted the applicants on this charge; but it appears that no steps were taken to deal with the case against the accused persons so far as the injury done to the other informants was concerned.
2. On 7th April, 1929, when the Officiating District Magistrate of Balasore was on tour in the Khaira jurisdiction, he heard of this occurrence, and proceeded to take cognizance under Section 190, Criminal Procedure Code of the offences alleged against the Raja's men, treating the act of damaging the crops of Maguni Patra and Fakir Patra as offences under Sections 147 and 426, Indian Penal Code. The case was in due course transferred for trial to Khan Bahadur Dilawar Ali, a First Class Magistrate of Balasore, when proceedings were stayed by order of this Court.
3. Mr. K.B. Dutt argues in the first place that Section 403, Criminal Procedure Code, is a bar to the trial of the petitioners on any charge connected with the alleged rioting on 12th August, 1929. He argues that the account of the riot given is that of a single connected transaction; and that, although the Deputy Magistrate may have limited his charge inform to the offence committed by causing damage to the property of only three of the tenants, yet in the hearing of the case he took into consideration the evidence relating to the whole transaction, and his finding of not guilty should be regarded as a general finding of not guilty in respect of all the offences then involved together.
4. Now, on the facts as get out in the complaints in these cases, although the unlawful assembly may have consisted of the same persons throughout, a separate offence of mischief was committed in respect of each tenant's land. An offence against property is not an offence against property in the abstract; it is an offence against the property of a particular owner or possessor: on the facts as alleged by the complainants it is clear that a separate offence of trespass and mischief can be charged in respect of each separate holding which was damaged.
5. It may be true that Babu T.N. Mitra took into consideration evidence affecting other tenants than the three named in the charge; but this fact does not turn his decision into an acquittal or conviction of any offence alleged in connexion with the property or persons of those other tenants. His judgment amounts to an acquittal in respect of the matter charged and to nothing else. He might, under Section 235 (1), Criminal Procedure Code, have charged the petitioners now before this Court with the offences alleged in respect of the property of the other tenants; but this was not done, and Section 403 (2) expressly provides that a person acquitted of any offence may be afterwards tried for any distinct offence for which a separate charge might have been made against him on the former trial under Section 235, Sub-section (1). There is, therefore, no bar to the trial of the petitioners for offences touching other holdings than those in respect of which they have been definitely acquitted.
6. Mr. Dutt argues in the second place that the whole case was before Babu T. N. Mitra, and the District Magistrate had no power to take cognizance of it under Section 190 (1) (c) Mr. K B. Dutt cites the decisions in Ayen Mahomed Akand v. King-Emperor 5 C.W.N. 488 and Moul Singh v. Mahabir Singh 4 C.W.N. 242.
7. In Moul Singh's case 4 C.W.N. 242 a Subordinate Magistrate had before him a case of rioting, which resulted in conviction; but the Magistrate did not think it necessary to proceed against three men against whom warrants had been issued, but who had not been yet tried. He was moved to proceed against these three men, and also against three other persons who had been mentioned in the final Police report, but against whom no proceedings had hitherto been taken, The Magistrate declined to take any further action, considering that sufficient had been done to satisfy justice. The District Magistrate was then moved in revision, and under Section 437, Criminal Procedure Code, he directed that the case should proceed against the remaining offenders, that is to say, against the three for whose arrest warrants had been issued, as well as against the three other persons. The High Court affirmed the order of the District Magistrate respecting the persons for whose arrest warrants were issued, but set aside it so far as it affected the other three persons, on the ground that the District Magistrate had no jurisdiction under Section 437, since no proceedings had hitherto been taken against these persons, It was held that the only way in which he could have dealt with these persons was by transferring the case to his own Court for trial. In Ayen Mahomed Akand's case 5 C.W.N. 488, one of several rioters was sent up by the Police and the trying Magistrate, on application made for summoning the other, refused to summon them. The District Magistrate transferred the case to his own file, and directed the issue of warrants against the accused persons who had not been sent up for trial. It was argued that there was no case pending after the Magistrate had refused to issue further processes, and, therefore, there was no case to be transferred to the District Magistrate's file under Section 528. The order of the District Magistrate was affirmed on the ground that, if the case was pending, he had jurisdiction to make the order under Section 528, and if the case was not pending, he had jurisdiction under Section 190.
8. In the present case, when in April, 1929, the District Magistrate of Balasore thought it necessary to continue the proceedings against the petitioners, it would have been more regular to withdraw the pending case to his own file under Section 528, Criminal Procedure Code, rather than to begin separate proceedings by taking cognizance under Section 190 (1) (c) of offences which had already been made the subject of a Police report and not yet been finally disposed of. It appears that at present the same charges are pending against the petitioners in two entirely separate proceeding!?, of which one is or was on the file of Babu T. N. Mitra, and the other before Khan Bahadur Dilawar Ali. The District Magistrate, before any further proceedings are taken in this matter should examine the record of the case tried by Babu T. N. Mitra. If there is a definite order refusing to proceed in respect of the offences for which the petitioners have not been tried, further proceedings cannot be taken in the case initiated by Mr. Senapati until that definite order has been duly set aside under s 437. If there is no such definite order, it will be sufficient for the Magistrate to withdraw the case to his own file and transfer it to the Magistrate who is to try the case with which we are here concerned. In any event, both of the cases should be before the same Court if a second trial is to be initiated.
9. In the original application made to this Court there was a prayer for transfer of this case to another district, but that application is not now pressed, since the Officiating District Magistrate, who took cognizance of the case under Section 190(1)(c), has now been transferred.