Bapna, J. - (1.) THIS is a reference by the learned Additional Sessions Judge of Udaipur.
(2.) ONE Govinda filed a complaint in the Court of Extra-Magistrate Mawli on 18th June 1951 that he had cultivated his field Magriwala situated at village Merta about one bigha and five biswas in area but later on accused Pratap Singh, Prem Singh and Sabla re-cultivated it with the result that the seed sown by the complainant had been wasted. The learned Magistrate started enquiry as if in a warrant case, and examined two witnesses! on the 22nd September 1951 and one witness on the 3rd October 1951. He then examined the accused but did not frame a charge nor allowed further cross-examination. He recorded evidence for the defence and then passed a judgment as if in a summons case under sec. 245 Cr. P. C. He acquitted Sabla although he has mentioned the word 'discharge'. He convicted Pratap Singh and Prem Singh and sentenced them to fine of Rs. 11/- each on each of the two counts. On revision the learned Sessions Judge was of opinion that an offence under sec. 447 I. P. C. was triable by Gram Panchayat and therefore while the conviction under sec. 426 be maintained, the conviction under sec. 447 I. P. C. be set aside and the case should be remanded to the Magistrate with direction to transfer it to the Gram Panchayat under sec. 27 of Ordinance LXXIX of 1948. The | reference seems to have been made under misconception. The two offences under secs. 426 and 447 formed part of the same transaction and the offence under sec. 426 was not triable by the Village Panchayat as the loss sustained was above Rs. 20/ -. Learned counsel urged that there was an illegality in the proceedings of the Magistrate inasmuch as while he started proceedings as if in a warrant case, he neither framed any charge nor permitted cross-examination of the witnesses and even the examination of the accused had been made as if in a summons case. On going through the record I find that this objection is correct. Under the law if a Magistrate starts a trial as if in a warrant case-then he cannot subsequently convert those proceedings into proceedings as if in a summons case. Reference may be made to Govind vs. Emperor (1) (A. I. R. 1927 All. 270 (1 ). ). It is possible to think that the accused may not have cross-examined the witnesses on the earlier occasion to the extent that they wanted to do and in fact in a warrant case the main cross-examination is undertaken after the framing of the charge. The conviction based on proceedings which suffer from a very material defect as mentioned above cannot be sustained. Learned counsel contended that the case was of a petty nature and according to the defence the matter is one of a civil nature and therefore no re-trial should be ordered. On going through the evidence I find that the complainant's version is that he had purchased the field from Chaturbhuj a few months prior to the occurrence. The defence is that they were mortgagees in possession from Chaturbhuj prior to the sale and had therefore started cultivation. Chaturbhuj has not been examined by the prosecution. There is thus much force in the contention that the dispute is purely of a civil nature. The reference is rejected and the conviction of the accused under secs. 426 and 447 I. P. C. is set aside. The fine if paid will be refunded. .;