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Kunja Lal Chakravarty Accused, v. The King Opposite Party.

Calcutta High Court

Nov 11, 1949

Judgment

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Structured Summary of the Judgment

Factual and Procedural Background

This is a petition for revision of convictions recorded by the Magistrate. The Petitioner had been convicted of offences under sections 426 (mischief) and 447 (criminal trespass) of the Indian Penal Code. Under section 426 the Petitioner was sentenced to pay a fine of Rs. 40 and, in default, to undergo simple imprisonment for one month; no separate sentence was passed under section 447.

The factual dispute arose from a family quarrel concerning two plots of land, Nos. 83 and 86 (survey record). The complainant (Opposite Party) claimed sole possession of those plots and alleged that on 19 August 1948 the Petitioner with others forcibly entered the plots, tore down fencing and damaged certain trees. The defence maintained that the two plots were joint property of the complainant and members of the Petitioner’s family, and that the Petitioner only acted to prevent the complainant from fencing off the property in an attempt to establish exclusive possession.

The Magistrate convicted the Petitioner; the Sessions Judge in revision affirmed (stating only that, having gone through the record, he saw no ground for interference). The present judgment is the result of the revisional petition before this Court.

Legal Issues Presented

Whether the complainant proved beyond reasonable doubt that he was in exclusive possession of Plots Nos. 83 and 86.
Whether the learned Magistrate erred in admitting or relying upon findings from a separate criminal (assault) case as establishing exclusive possession in this dispute.
Whether the learned Magistrate was entitled to draw inferences from personal inspection (view) of the property and make findings based on what he himself observed, where those observations were not referred to by any witness.
Whether the acts alleged (demolition of fencing and damage to trees) amounted to criminal trespass or mischief if the property was joint and the defence's explanation (removal of fencing to prevent creation of false evidence) were accepted.
Whether, given the nature of the dispute (questions of title/possession and an existing civil suit), a retrial in the criminal forum should be ordered or whether the matter is to be left to the Civil Court.

Arguments of the Parties

Complainant's Arguments

The complainant asserted that he was in sole possession of Plots Nos. 83 and 86.
He alleged that on 19 August 1948 the Petitioner and others forcibly entered the plots, tore down the fencing and damaged trees, supporting criminal charges of trespass and mischief.
The complainant relied on a partition said to have taken place in 1948 by which he claimed to have been allotted the two plots.
Evidence included a witness (P.W.7) who purportedly participated in the partition process (as presented by the complainant).

Petitioner's / Defence Arguments

The defence contended that Plots Nos. 83 and 86 were joint property of the complainant and members of the Petitioner's family (i.e., no exclusive title to the complainant).
The Petitioner asserted that his actions were undertaken to prevent the complainant from fencing the plots in order to manufacture evidence for a pending civil suit, and not with intent to cause wrongful injury or to dispossess a sole occupant.
The defence argued that if the land were joint, entry by a co-sharer to remove fences could not constitute criminal trespass or mischief; at most any damage to trees would have occurred between co-sharers and not support criminal charges by one co-sharer against another.
The defence also pointed to the record-of-rights entries (which were against the complainant) and to the absence of any attempt for about ten years to alter that entry as factors undermining the complainant's claim of exclusive possession.

Table of Precedents Cited

No precedents were cited in the provided opinion.

Court's Reasoning and Analysis

The Court proceeded through a sequential analysis of the critical evidential and legal points made in the record:

Possession, not title, is the deciding factor for offences like trespass and mischief; nonetheless, findings about title can assist in determining who was in possession. The Court examined contesting accounts of partition and allotment said to have occurred in 1948.
The Court scrutinised the key witness P.W.7. Although P.W.7 had given evidence in chief consistent with the complainant's partition story, in cross-examination he stated that the complainant was allotted only one plot while five plots went to members of the Petitioner’s family. The Court held that a damaging admission in cross-examination cannot be dismissed simply as a "slip of the tongue," and that P.W.7’s cross-examination answers cast considerable doubt on the complainant’s case.
The learned Magistrate had placed weight on the judgment of another Magistrate in an assault case involving relations of the Petitioner. The Court found such reliance misplaced: a criminal judgment in an assault case cannot operate as a declaration of possession in a separate dispute, nor does it amount to res judicata for title or possession in this context. The earlier criminal finding was inadmissible and irrelevant for establishing exclusive possession in the present proceedings, and reliance on it vitiated the Magistrate's judgment.
The learned Magistrate visited (viewed) the property about seven months after the event and made findings from his observations (e.g., sprouting trees, presence of a platform) which were not pointed to by witnesses. The Court held that what the Judge or Magistrate personally sees on such a view is not evidence because the trier of fact cannot be cross-examined; therefore inferences drawn solely from the Magistrate’s untested observations were impermissible.
The Court accepted the defence explanation (as a plausible legal contention) that if the land were joint and the complainant had no right to erect fencing, the Petitioner’s removal of fencing to prevent creation of false evidence would not constitute criminal trespass or mischief. Further, any slight damage to trees by a co-sharer would not, in the Court’s view, be properly the basis for criminal charges by another co-sharer.
The Court emphasized the weight to be attached to the record-of-rights entry, noting that it was adverse to the complainant, had existed for about ten years, and had not been challenged or amended by the complainant in that time. The record-of-rights, being the product of exhaustive inquiries, attracts a presumption of accuracy and should not have been summarily dismissed by the learned Magistrate.
The Sessions Judge's brief statement in revision that he saw no ground for interference was found unhelpful; it did not cure the errors identified in the Magistrate’s reasoning.
Given these defects — reliance on inadmissible findings, impermissible inferences from a personal view, failure to appreciate the evidential weight of the record-of-rights, and the contradictory cross-examination of P.W.7 — the Court concluded that the Magistrate’s decision could not be sustained.
Finally, the Court considered whether a retrial in the criminal forum should be ordered and concluded that the dispute raises questions which can only be satisfactorily resolved in a Civil Court (a civil suit on related questions was already pending). The Court therefore declined to order a retrial in the criminal court.

Holding and Implications

Holding: The petition is allowed. The Court set aside the convictions and sentence of the Petitioner under sections 426 and 447, and the Petitioner is acquitted. The rule was made absolute.

Implications:

The direct effect on the parties is the quashing of the criminal conviction and sentence and the acquittal of the Petitioner.
The Court declined to order a re-trial in the criminal forum and indicated that the appropriate forum for resolving conflicting claims of title/possession and declarations is a Civil Court (a civil suit on related points was already pending).
The decision reflects the Court’s unwillingness to uphold convictions where the Magistrate relied on inadmissible material, drew inferences from personal inspection not supported by witness evidence, and undervalued the presumptive force of the record-of-rights. The opinion does not present or cite a new binding precedent; it confines its disposition to the facts and procedural posture of this matter.

Signed in the record with the initials: N.D.R.

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The Judgment of the Court was as follows:

1. This is a petition for revision of orders of the Court below convicting the Petitioner of offences under secs. 426 and 447 of the Indian Penal Code. Under sec. 426 the Petitioner was sentenced to pay a fine of Rs. 40 and in default of payment to undergo simple imprisonment for one month. Under sec. 447 no separate sentence was passed.

2. The case arises out of a family dispute relating to two plots of land, plots Nos. 83 and 86, in the survey record. According to the complainant, the Opposite Party, he was in sole possession of these two plots. On August 19, 1948, he alleges that the Petitioner together with others carrying lathis forcibly entered upon these plots and tore down fencing and damaged certain trees. A complaint was, therefore, made for criminal trespass and mischief. Shortly, the defence was that the plots in question were the joint property of the complainant and members of the Peti-tioner's family and that all the Petitioner did was to take steps to prevent the complainant from fencing off this property to establish a right to exclusive possession of the same.

3. The first point the Magistrate had to consider was, who was in possession of these two plots. The deciding factor is not title but possession; but frequently a finding as to title can help in arriving at a conclusion as to who is in possession. The case for the complainant was that these two plots together with other land formed part of an estate which was partitioned in 1948 and that in that partition the complainant had been allotted Plots Nos. 83 and 86. The defence denied any such partition and their case was that these plots together with other land still remained joint. The question whether a partition took place or not was, therefore, of some importance and the complainant actually called a witness P.W 7 who stated that he was one of the persons who actually carried out the partition. In cross-examination, however this witness made a most devastating statement. According to him in the partition the complainant was only allotted one plot, whereas five plots were allotted to members of the Petitioner's family. If that evidence be true then quite clearly Plots Nos. 83 and 86 could never have been allotted to the complainant. The learned Magistrate gets over the difficulty by saying that this statement of P.W 7 must have been a slip of the tongue, because he had said otherwise in examination-in-chief. The purpose of cross-examination is to elicit the truth by testing a witness' evidence, and damaging admissions in cross-examination cannot be got rid of merely by stating that they were mere slips of the tongue. This statement of P.W 7 however it is looked upon throws considerable doubt upon the case for the complainant that there ever was a partition or that if there was, he was allotted Plots Nos. 83 and 86.

4. The learned Magistrate also considered the judgment of another learned Magistrate in a criminal case for assault which the complainant brought against the mother and certain other relations of the Petitioner. How this criminal case and the findings in it could be relevant to the investigation in the present case I am wholly unable to understand. The judgment in that criminal case could only be admissible in evidence to establish two facts; the first being that there was such a case and the second being that in the case the accused were or were not convicted as the case may be. The learned Magistrate seems to think that the finding of the other Magistrate in the criminal case amounts to a declaration that the complainant was in exclusive possession of these plots. Civil Courts in proper proceedings may grant declarations of title and the findings of such Civil Courts may operate as res judicata between the parties. But the findings of a Magistrate in an assault case so far from operating as res judicata between the parties are not relevant even in any other dispute between the parties. Such findings are wholly inadmissible. As I have stated, the learned Magistrate has laid great stress on the findings of the assault case and that in itself would be quite sufficient to vitiate the Magistrate's judgment in the present case.

5. The learned Magistrate viewed the property in question some seven months after this occurrence. A Judge or a Magistrate may view a locality to enable him to appreciate the evidence. But he can decide nothing as a result of what he himself sees. In short what he himself sees is not evidence in the case and for a very good reason; the Judge or Magistrate cannot be cross-examined. The Judge or Magistrate, however, can visit a place in order to ap- preciate the evidence which has been given.

6. The learned Magistrate in this case noticed certain features, the sprouting of trees and the existence of some platform from which he made certain deductions. He is not entitled to make any deductions whatsoever from what he himself sees and which was not referred to by any other witness.

7. It seems that the Petitioner has filed a civil suit in connection with another plot, Plot No. 87, which lies on the north of Plots Nos. 83 and 86 and is contiguous with these two plots. The claim is that Plot No. 87 is ejmali. The learned Magistrate seems to think that this civil suit has been filed as a counterblast to the declaration which the complainant had already obtained at the hands of the Magistrate that he was in sole possession of these plots. I would like to remind the learned Magistrate that the proper forum for these disputes is a Civil Court which can grant a declaration and not a Criminal Court which can make no declaration of any kind.

8. The suggestion of the defence is that the complainant erected fencing around these two plots in order to create evidence for himself in the civil suit pending. If there was evidence in the civil suit that Plots Nos. 83 and 86 were fenced off that would go some way to defeat the Petitioner's case that they were joint. The defence case was that in order to prevent this creation of evidence they entered upon the property which was held by them jointly with the complainant and demolished the fencing. If that be the true state of affairs I cannot see how the Petitioner could be convicted of criminal trespass or mischief. If the land was joint the complainant had no right whatsoever to fence the plots and the Petitioner would be fully entitled to enter upon the place and remove the fences. No question of trespass could arise because the Petitioner was as much entitled to enter upon these plots as the complainant, and in any event I do not think it could be said that he had any of the necessary intents. The intent, if the defence is true, was to remove manufactured evidence and not to annoy the complainant. Be that as it may, it is not a trespass by one joint tenant to enter upon property held jointly. Further, if the complainant had no right to erect this fencing, I do not think how it could be said that removing it would amount to mischief. It was removed to prevent the creation of false evidence if the defence version be true. Whether trees were damaged or not it is difficult to say. But I do not think that criminal charge would lie at the instance of one co-sharer because the other co-sharer might have damaged slightly some trees.

9. Upon the evidence in this case I am not satisfied that the complainant proved beyond reasonable doubt that he was in exclusive possession of these two plots. The record-of-rights is against him and in a Civil Court that would raise a formidable presumption against the complainant which he would have to rebut. It must be remembered that the record-of-rights is a document which is the result of prolonged and exaustive enquiries in which all interested in the land are entitled to their say and are entitled to urge their case. It is only after such exhaustive enquiries that the record-of-rights is published and it is because the whole process is so exhaustive and thorough that the law gives a presumption of accuracy to any entry contained therein. The record-of-rights is, therefore, a very important piece of evidence which cannot be dismissed in the summary way in which the learned Magistrate dismisses it from his consideration in this case. Another important factor is that the entry in the record-of-rights had been in existence for about ten years and no attempt had been made by the complainant to have it altered, if the entry was inaccurate. This is also a factor which must be considered. The learned Magistrate seems to have thought that the complainant had not taken steps to rectify the register because of carelessness or negligence. But the fact that this record has been allowed to remain unchallenged for ten years is also a strong evidence against the complainant.

10. In arriving at his conclusions it appears to me that the learned Magistrate has taken into consideration matters which are wholly inadmissible and irrelevant such as previous findings of a brother Magistrate. He has also failed, I think, to appreciate the weight which should be attached to pieces of evidence such as the record-of-rights that admit of no doubt whatsoever. For these reasons I do not think that the decision of the learned Magistrate can be sustained.

11. The judgment of the learned Sessions Judge in revision is not very helpful. He merely states that the Magistrate had the points to be considered in mind and having gone through the record he sees no ground for interference.

12. The order of the learned Magistrate must, therefore, be set aside and the question arises whether there should be a new trial.

13. It appears to me that this dispute can only be satisfactorily decided in a Civil Court and a suit in which the points are involved is already pending. I do not think that a Criminal Court is a Court which can decide these difficult questions and that being so, I do not order a re-trial.

14. In the result, therefore, this petition is allowed, the convictions and sentence are set aside and the Petitioner is acquitted. The rule is made absolute.

N.D.R