Himaja Kr. Ghosh vs Ranjit Kr. Sarkar and Others

N.G. Chaudhuri J.

The complainant petitioner in this revision application challenges the legality of an order dated 2. 11. 79 passed by the Judicial Magistrate, Hooghly Sadar, in C.K. Case No. 48\\79. The opposite party No. 1 in the aforesaid case filed a petition u/s 21 (3) of the West Bengal Land Reforms Act, 1955 for reference of the dispute in the said case to J.L.R.O. and the learned Magistrate by the order impugned allowed the said prayer. The petitioner filed a complaint alleging that the opposite party No. 1 along with others had reaped and taken away the paddy which he had grown on the land described in the petition of complaint. In the aforesaid premises, he alleged that the opposite party committed an offence u/s 379 of the Indian Penal Code. After taking cognizance and examining the complainant and his withness the learned Magistrate framed a charge in the manner prescribed by section 246 (1) of the Code 01 Criminal Procedure. At that stage the opposite party No. 1 made the application noted above which has been allowed.

In View of the definition of theft as given in the section (378) of the Indian Penal Code read with demotion of movable property as given in section 22 of me Indian Penal code and bearing in mind illustration (a) u/s ''did not the Indian Penal Code the petitioner is to prove that he had grown the Paddy in question and by implication he was in khas possession of the land in. question. If he fails to prove the above, the case he has instituted will fail. Here the question of the status of the opposite party as to whether he was bargadar in respect of the land in question or not did not arise for consideration of the court. It has been held in the case of Atlanta Kumar IV as/car vs. State and Anr. reported in 1974 (2) C.H.N. 123 that in a criminal, case of theft a reference to the officer contemplated u/s 18(1) of the Land Reforms Act pursuant to section 21 (3) of the said Act is unnecessary. It has been emphasized that in a criminal case of theft the point for decision is actual possession of the land, not the right of anybody therein. Accordingly I have no hesitation to hold that the learned Magistrate was wrong in passing the impugned order allowing the opposite party''s complaint petition u/s 21 (3) of the Act.

There is one more point also which I cannot overlook. Section 21 (3) of the Land Reforms Act contemplates reference to the authorised officer if any question as to whether a person is or is not a bargadar arises in course of any proceeding. It is clear that such a question is not to be anticipated. A reference will be made only when such a question has actually arisen. In the case under my consideration such a question has not yet arisen. Such a question may however arise at the stage of section 247 of the Code of Criminal Procedure when the accused shall be called upon to enter upon his defence and produce his evidence. That stage was not reached when the learned Magistrate passed the order impugned. Considered from that light also the order impugned is illegal and untenable. In the aforesaid premises the revisional application is allowed. The Rule is made absolute., and the order impugned dated 2. 11. 79 and January 10, 1980 passed in C.R. Case No. 48 of 1979 in the court of the Judicial Magistrate, First Class Hooghly Sadar be set aside. The learned Magistrate is directed to conclude the hearing of the case as early as possible.

Let the records go down as early as possible.