Decided on June 06,1961

Brojendra Kumar Poria Appellant
Gostha Dolai Respondents


- (1.) This is an appeal preferred by the complainant upon a special leave granted under Section 417(3) and it arises out of a trial in which the accused persons were summoned upon a complaint for an alleged offence under Section 379, Indian Penal Code, and was tried for offences under Section 427, Indian Penal Code. The case for the prosecution was that the complainant purchased the land in dispute from one Gobardhone Adhikari about 8 or 9 years ago and after having possessed the land in khas for about 4 or 5 years he gave the land to the accused on a Bhag Bandbast. Thereafter for default of delivery of the Bhag produce of the land the complainant started a proceeding before the B.C.C. Board against the accused persons and obtained an order for eviction and in pursuance of that order he got delivery of the possession of the lands through court on April 22, 1958. On appeal by the accused the order of the B.C.C. Board was set aside and an order for retrial was made. Against that order of retrial the complainant preferred an appeal to this Court and has obtained an order of stay of proceedings. That appeal is pending for disposal. In the meantime, it is alleged, the complainant who had obtained possession of the land had it cultivated in khas in 1365 B.S. and peacefully harvested paddy in that year. In 1366 B.S. also the complainant cultivated the land in Khas and grew paddy but before that paddy was ripe the accused persons along with others reaped the crop away on 2nd Agrahayana 1366 B.S. corresponding to November 19, 1960 in spite of protest of the complainant.
(2.) The defence case is that the lands have remained in possession of the accused person throughout and they have been cultivated by them as Bhagchasis. Having grown that paddy they have harvested ripe paddy and the story of reaping away green paddy is denied. At the trial after six prosecution witnesses were examined charge was framed under Section 427, Indian Penal Code, on May 26, 1960. Thereafter all the six prosecution witnesses were cross-examined and discharged on August 11, 1960. On that very day the accused persons were examined under Section 342, Code of Criminal Procedure, and August 26, 1960 was fixed for defence and arguments. On August 26. 1960 defence declined to examine any witness and next day, that is, August 27, 1960 was fixed for arguments. Immediately after that order was recorded on August 36, 1960, prosecution filed an application for examining a person named Amarendra Pore and for calling for record of the Bhaqchas court under Section 540, Code of Criminal Procedure. On receiving that application the learned Magistrate recorded an order saying that it will be considered after hearing arguments on the next date if examination of the witness appears necessary under Section 540, Code of Criminal Procedure. On August 27, 1960 prosecution made an application for framing fresh charge under Section 19A of the Land Reforms Act. But that application was rejected by the learned Magistrate. At that stage prosecution filed a petition praying for adjournment on the ground that they intended to move the higher court for transfer of the case from the court of that learned Magistrate under Section 528, Code of Criminal Procedure. This application was rejected by the learned Magistrate on the ground that it had been made after defence had closed its case on August 26, 1960 by declining to examine any witness. Thereafter arguments were heard on both sides on August 27, 1960 and the application for examining Amarendra Pore and for calling for the records was considered and that application was rejected as not having been made in proper time. The judgment in the case was delivered by the learned Magistrate on August 31, 1960 holding the accused persons not guilty under Section 427, Indian Penal Code.
(3.) Against that order of acquittal the present appeal has been preferred. The learned Advocate Mr. Chittatosh Mukherjee appearing in support of the appeal has contended first that the learned Magistrate was in error in thinking that the application under Section 526(8), Code of Criminal Procedure, was made after the defence had closed its case and, therefore, he acted illegally and without jurisdiction in proceeding to hear the argument in the case and to dispose of the case by the judgment of acquittal. This contention of Mr. Mukherjee is based on his contention that the defence case is not closed merely by declining to examine any defence witness and not until the arguments for the defence has been concluded. That does not appear to be the correct position in law because in Chapter XX under Section 244, Code of Criminal Procedure, after the complainant is heard and all evidence as may be produced in support of prosecution has been taken, it is enjoined that the Magistrate shall proceed also to hear the accused and take all such evidence as he produces in his "defense" By dint of that provision although the accused must be heard the hearing of the argument after defence evidence has been taken or after defence has declined to examine witness has not been made a part of defence case. Besides this provision for hearing the accused there is no other provision in Chapter. XX that enjoins that the defence argument must be heard after the defence witnesses have been examined. Therefore when Section 526(8) speaks about closing of the defence case in a trial under Chapter XX, Code of Criminal Procedure, it can only mean the stage of Section 244, Code of Criminal Procedure. It follows that when at that stage accused has declined to produce any evidence in his. defence, defence has closed its case. The only thing that remains to be done by procedure prescribed under Chapter XX, Code of Criminal Procedure, is to pronounce judgment either of acquittal or of conviction and sentence, as provided in Section 245, Code of Criminal Procedure. Therefore, Mr. Mukherjee's con mention that in the present case although the accused persons had declined to produce any evidence on August 26, 1960 yet defence had not closed its case because defence argument had not yet been heard must be hold to be untenable. In that view of the matter there was no legal duty or compulsion for the Magistrate to adjourn the case to enable the prosecution to make an application for transfer in the higher court. This point of Mr. Mukherjee, therefore fails. The only other point urged by Mr. Mukherjee was that the learned Magistrate ought to have allowed the prayer of the prosecution for calling the witness and the records. That application was made explicitly under Section 540, Code of Criminal Procedure, which is a matter of the discretion of the court. There is no question that the application was made at a late stage. If the learned Magistrate in exercise of his discretion thought fit to decline that prayer it does not become revisable under Section 439, Code of Criminal Procedure, unless there has been prejudice caused thereby. In this case there has been none. This point also must be held against Mr. Mukherjee's clients.;

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