Decided on September 20,1983



- (1.) THIS Rule arises at the instance of Basudeb Mondal and eight others. In the Court of the first instance that is to say in the Court of Judicial magistrate, First Class, Alipore, a complaint was lodged by Dud Kumar Pramanik against the present petitioners on the allegation that they cut away and removed the paddy from his land and so they committed an offence under section 447 of the Indian Penal Code. Before the learned magistrate, it appears that six witnesses were examined and the learned magistrate by his order dated 27. 6. 78 discharged all the petitioners under section 245 (1) of the Code of Criminal Procedure on the ground that no case has been made out which if unrebutted would warrant their conviction. Being aggrieved Dud Kumar Pramanik moved the court of sessions at Alipore. The revisional application was heard by the additional Sessions Judge, Second Court, alipore who by his order dated January 31, 1979, set aside the order of the learned magistrate and he directed the learned magistrate to frame charges against the accused persons under section 447/379 Indian Penal Code and proceed with the case in accordance with law.
(2.) BEING aggrieved by that order the petitioners have come before this court and obtained the Rule. Mr. Mukherjee appearing for the petitioners submits that the learned Sessions Judge was in error in not appreciating the fact that the evidence adduced by the prosecution in the 9th Court of the Judicial Magistrate, Alipore, did not disclose the culpability of the petitioners. He submits that the allegation of theft of paddy was vague as stated in his judgment by the learned Judicial Magistrate and there being injunction at the time upon the complainant the could not have cultivated the paddy in question and raised the crop. He further submits that the learned Additional Sessions Judge was again in error in ordering the learned magistrate to frame charge against the petitioners under section 447|379 of the Indian Penal Code. He submits that the learned court below had no right to make that order.
(3.) MR. Ghosh appearing on behalf of the opposite party submits that the learned magistrate was wrong in holding that because of the injunction there could not have been any cultivation of paddy on the case land by the present opposite party - Dud Kumar Pramanik. He submits supporting the views of the additional Sessions Judge that there was no proof at all that the injunction had been served upon Dud Kumar Pramanik restraining him from cultivating paddy on the case land. Furthermore, he submits that even if there was an injunction and even if the injunction order was served upon him he could still violating that order could raise paddy and such raising of paddy would be a fact and would be taken notice of by a criminal court. Raising of paddy in violation of injunction does not confer any night upon the petitioners to harvest and take away the paddy from the land. On the second point the learned advocate submits that the power of Sessions judge or Sessions Court is not confined only to sections 397 and 398 of the Code of Criminal Procedure but there is-a power under section 399 of the Criminal Procedure Code the amplititude of which coincides with the amplitude of the power of the High Court in revision under section 401 of the Criminal Procedure Code.;

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