- (1.) This is an application in revision under the provisions of S. 435, Criminal P. C. directed against an order dated 11-1-1950, passed by the learned District Magistrate of Ajmer in Cri. App. No. 2 of 1949 whereby the conviction of the appellants by the original Court under S. 379, Penal Code was altered into a conviction under S. 424, Penal Code with a sentence of a fine of Rs. 35 each or in default rigorous imprisonment for one month. Two points have been urged before me by learned counsel for the applicants; firstly, that the applicants have been seriously prejudiced by the procedure adopted by the learned District Magistrate by which the conviction has been altered from one under S. 379, Penal Code to one under S. 424, Penal Code without opportunity having been given to the applicants to meet that case. Secondly, that upon the facts and evidence on the record, it cannot for a moment be said that the applicants "dishonestly or fraudulently concealed or removed the crop" within the meaning of those terms so as to be guilty under S. 424 Penal Code.
(2.) These 21 applicants have been the tenants of Barli estate. They were put on trial along with seven others inclusive of one Munshiram who was charged with the abetment of the offence. Munshiram and the other six alleged abettors were acquitted by the learned Magistrate in the trial Court on the ground that it was doubtful whether they instigated the tenants to the commission of any offence. As against these 21 applicants, the facts lay within a narrow compass and were not seriously disputed. As tenants of Barli estate, the rabi crop of 1947 had been harvested by them and had been stored over the fields in khalas so that the apportionment between them and the zamindar may be made. The provisions for the division of crops and the estimating of produce between landlord and tenants are contained in Ss. 48, 49, 50 and 51, Ajmer Land Revenue Regulation No. II (2) of 1877 and these provisions may be reproduced below for a clear understanding of the matter; "Section 48 1. When the rent of any land is payable by division of a crop grown on such land, the Revenue officer may, on an application being made either by the landlord or by the tenant when such crop is ripe, proceed to such land on a day, of which notice shall be given to both parties, and cause such crop to be cut or gathered and divided in accordance with the shares to which, upon such enquiry as he deems fit to make, it appears to him the parties are respectively entitled. Section 49 : If owing to an error of such Revenue officer, either party in such division receives less than the share to which he is entitled, such party may, within three months from the date on which such division is completed, institute a suit against the other party to recover the value of the additional portion of the crop due to him at the price which prevailed on such date. If no such suit is instituted within the said period of three months, the division shall for all purposes be deemed to have been rightly made. Section 50 : When the rent of any land is to be determined by an estimate of a crop standing on such land, the Revenue officer may, on an application being made either by the landlord or by the tenant when such crop is ripe, proceed to such land on a day of which notice shall be given to both parties, and determine the yield of such crop in manner following, that is to say : (a) each of the parties shall appoint an arbitrator and the Revenue officer shall appoint a third arbitrator; (b) if either party fails to attend or appoint an arbitrator, the Revenue officer may appoint an arbitrator for him; (c) the arbitrators thus appointed shall inspect the crop, and, if any two of them agree in their estimate thereof, the Revenue officer shall declare the rent to be payable in accordance with such estimate; (d) if no two of the arbitrators agree in their estimate, the Revenue officer shall, after inspecting the crop, make his own estimate thereof, and declare the rent to be payable in accordance therewith. Section 51 : Either party may, within three months from the date on which a declaration is made under S. 50, institute a suit against the other party to set aside such declaration on the ground that the estimate on which it is based was made in bad faith, and on no other ground. If no such suit is instituted within the period thus limited, such declaration shall be for all purposes final and conclusive." In the present case, as appears from evidence, the tenants were prepared to pay the landlord the one-third share of the produce which was due to the landlord as rent. There was some controversy between the landlord on the one side and the tenants on the other. The landlord wanted to make certain additional charges known as lags and negs. The tenants refused to pay the same. On account of that controversy the tenants and the landlord instead of following the strict procedure laid down in Ss. 48-51 of the Regulation quoted above by applying to the Revenue Court for a division of the crop entered into an agreement (EX. 5) dated 4-4-1950 by which they appointed five panches named therein with a view to estimating the produce and with a view to settle the matter in any way they liked. In accordance with that agreement, the arbitrators drew up a list Ex. 4 (b) by which the produce of the different tenants had been separately estimated. The produce lay in the open field in the khalas between 4-4-1947 the date of estimate, and 20-5-1947, when the alleged offence is said to have been committed. It is in the evidence of prosecution witnesses Mohan Lal, the Kamdar of Barli estate, and Pt. Kanhaiyalal, the Assistant Manager of the estate, and Amar Singh another employee of the estate, that whatever had been done by the arbitrators, or the panches, had the sanction of the landlord and the tenants and that the tenants' contention was that they would not pay any lag or neg over and above the one-third produce as rent. The question whether the landlord was entitled to any cess by way of lag or neg in addition to the rent is open to serious doubt. Such illegal cesses cannot, in my opinion, have been charged, having regard to the provisions of S. 48 and subsequent sections of Regulation II (2) of 1877. Assuming, however, that the landlord's right to lags and negs could have been legally enforced, the question which still remains to be considered is whether the action of the applicants in removing the crop from the khalas on 20-5-1947 amounted to an offence under S. 424, Penal Code. Of the two questions raised in this revisional petition, the first, namely, whether the learned District Magistrate was right in altering the conviction and sentence from one under S. 379, Penal Code to one under S. 424, Penal Code, is answered by a decision of their Lordships of the Privy Council in Thakur Shah V/s. Emperor, 1943 AIR(PC) 192 and by another decision of the Madras High Court in Subudhi V/s. Balarama, 26 Mad 481 : (13 M.L.J. 123). Section 423, Criminal P. C. and in particular sub-s. (1) (d) of that section gives wide powers of amendment in a criminal appeal. Under S. 423 (1) (d), the appellate Court has power to amend a charge. But that power must be used with discretion and if there is any chance of injustice being done or of the accused having been prevented from giving, or of his having failed to give evidence material to his defence by reason of the amendment of the charge, the Court should at least make him the offer of a new trial on the charge as amended. But it is not always necessary specially where it does not appear that any fresh case could be made or fresh evidence given on behalf of the person convicted. This is the law as propounded by their Lordships of the Privy Council in Thakur Shah V/s. Emperor, 1943 AIR(PC) 192 . The Madras decision quoted above is a decision on facts which bear a close resemblance to the facts of the present case; and there their Lordships of the Madras High Court altered the conviction from one under S. 379, Penal Code to one under S. 424, Penal Code. They observed that if ryots holding land on varam tenure remove crops for the purpose of protecting them from injury or damage owing to delay or refusal on the part of the Zemindar to perform his part in the harvesting or division, such a removal would not be dishonest within the meaning of S. 424, Penal Code. But where it is proved that the crops have been removed dishonestly or fraudulently, an offence is committed under S. 424, Penal Code even though the Zemindar, under the terms of the tenancy acquires no property in the share due to him until the ryots have delivered it to him. After enunciating that principle their Lordships of the Madras High Court held that in that particular case it was proved that the crops were removed with dishonesty and consequently an offence under S. 424, Penal Code was made out and not one under S. 379, Penal Code. That brings us to the next question formulated above, namely, whether the facts of the present case and the evidence on the record justify a finding that the crops had been fraudulently and dishonestly removed by the applicants so as to make them liable under S. 424, Penal Code. I have already stated above that it was with the common consent of the landlord and the tenants that the crops were stored in the khalas and they were estimated and appraised by the punches commonly nominated by them. Both parties were, therefore, protected by the estimate, and neither party could later on turn round and say that the tenants had frittered away, or had fraudulently and surreptitiously kept away, part of the crop. Two sahnas were appointed over the crop by the landlord. One of them was Sukkha (P. W. 1). It is in the evidence of Mohanlal (P. W. 2) and other witnesses for the prosecution that after the appraisement had been made the crop was ready for division on 4-4-1947. It is further in his evidence that the tenants opposed playing anything over and above the one-third produce of the land because their contention was that it would be in the form of illegal ceasses. This fact is particularly borne out by the evidence of Pt. Kainhaiya Lal (P. W. 3) the Assistant Manager of the estate and also by the evidence of Amar Singh (P. W. 4), another employee of the estate. It is in the evidence of Sukkha (P. W. 1) that the crop in other khalas, not in dispute, had already been divided in the neighbouring villages as between the landlords and the tenants. It was further in his evidence that in the present case the crop lay in the khalas for nearly 11/2 months absolutely ready. The contention of the applicants was that since the landlord was not agreeable to divide the crop and to take his one-third share, but was insisting upon payment of additional charges as cesses, the crop could not have been allowed to remain in the open fields in the khalas without the risk of damage and deterioration on account of impending rains. Some controversy was raised before the learned District Magistrate as to whether rains had actually fallen or not by 20-5-1947 when the crop was admittedly removed from the khalas. The learned Magistrate looked into certain official papers regarding rainfall and came to the conclusion that till then there was no rain in the Kekri Sub-Division. That procedure has been impugned by the applicants as not strictly provided for by law; but the question whether rains had actually fallen by 20-5-1947 is not of much consequence because it cannot be seriously disputed that after that date the breaking up of the mansoon may be expected within a short period. Be that as it may, the tenants could not be blamed for their anxiety that the ready crops stored in the khalas should not be permitted to remain there indefinitely on account of the obstructiveness of the landlord. On 20-5-1947 when they removed the crop either by their own volition or on account of the instigation of others, they made an application to the Chief Commissioner, Ajmer, which is Ex. 16 on the record. By that application they informed the Chief Commissioner that they had removed the crop and were still ready to pay the zemindar one-third share of rent. Under circumstances such as these, it cannot be said that the tenants "dishonestly or fraudulently concealed or removed the crop" with a view to deprive the landlord of his just dues; and their action cannot, in my opinion, be brought within the four corners of S. 424, Penal Code. The view that I take has also the support of authority. As has been held in Nooran Singh V/s. Emperor, 1921 AIR(Pat) 506 , the essence of the offence under S. 424, Penal Code is that the removal of the property must be dishonest or fraudulent. In Khushi Ram V/s. Emperor, 1931 AIR(Lah) 269 , the Lahore High Court laid down that unless dishonesty is proved, the conviction under S. 424, Penal Code cannot be sustained. In the same case it was further laid down that parties should not be encouraged to resort to the criminal Courts in cases in which the point at issue between them is one which can more appropriately be decided by a civil Court. In Nand Kishore V/s. Emperor, 1939 AIR(All) 710 , it was laid down by the Allahabad High Court that the removal referred to in S.424, Penal Code is ejusdem generis with concealment which precedes it and that S. 424 is designed to meet a special class of cases and has no application to a case where property is openly seized by a person in the exercise of an alleged right. The Madras case cited above in Subudhi V/s. Balarama, 26 Mad 481: (13 M.L.J. 123) makes the point still more clear where it was held that if ryots holding land on varam tenure remove crops for the purpose of protecting them from injury or damage owing to delay or refusal on the part of the zemindar to perform his part in the division, such a removal would not be dishonest within the meaning of S. 424, Penal Code. In the present case, the facts stated above and the evidence on the record do not at all point towards the direction that when the tenants removed the crop on account of the failure of the landlord to divide the same for nearly l1/2 months in the khalas, any dishonest or fraudulent concealment or removal can be attributed to them. I am unable to share the view of the learned District Magistrate when he observed that the claim of the tenants that they had a right to remove the grain from the khalas, under the circumstances of the case cannot be termed as bona fide and that in such a case the fact of removing the grain from the khalas without dividing the share between themselves and the landlord can only be termed as dishonest. In my opinion, the essential ingredients constituting an offence under S. 424, Penal Code were wholly wanting in the case and consequently the order of the learned District Magistrate cannot be sustained. I would, therefore, accept the application in revision and would submit the record together with this reference to the learned Judicial Commissioner Ajmer, with the recommendation that the conviction and sentence of the applicants should be set aside and the fines, if paid, should be refunded and that the grain in question which is still in the custody of the Police, as has been contended by the applicants, should be ordered to be returned to them to avoid damage or deterioration so that it may be divided as between the tenants and the landlord in accordance with law. ORDER OF THE JUDICIAL COMMISSIONER.
(3.) Heard the parties.;