In Re: Kadan Kunhikannan

Somasundaram, J.—This is a reference by the District Magistrate of Malabar to set aside the conviction of the accused in S. T. No. 218 of

1955, on the file of the Honorary Special First Class Magistrate, Cannanore. The accused was prosecuted by the District Board for encroachment on the District Board property at the'' second furlong on Alavil to Azhikkode road. He is said to have put up a compound wall enclosing certain space belonging to the District Board. He was asked to remove the same by a notice, Ex. P-1. He did not remove it.

Thereafter the District Board authorised the prosecution of the accused and the complaint was filed; Several adjournments were taken by the

accused and ""on the last hearing date two witnesses were examined, P.W. 1 the Road Inspector, Highways, and P. W. 2, the revenue Inspector,

District Board, Both of them speak to the fact that the accused had encroached upon the District Board property and in spite of the notice he has

''not removed it. These witnesses were not cross-examined at all and the accused when questioned admitted that it was an encroachment, but as the District Board demanded a sum of Rs. 45, he did not pay that sum as he was till then paying only Rs. 3 per year and the amount of Rs. 9 for three years was due. On this he, was convicted.

It is true that this-being a summons case at the commencement of the enquiry he denied that he was guilty. Subsequently he filed a written state-

met alleging that this plot of land was given to him on pattern lease at the rate of Rs. 3 per year. He says that it is the revenue Department that granted him that lease and that his continuous possession was recognised by the revenue department.

Though in the written statement he stated so, when evidence was let in not one of the witnesses was cross-examined and the final answer to the question which is asked u/s 244 , Cri. P. C., was that, it was an encroachment. The Honorary First Class Magistrate was certainly justified on the evidence and on the statement made by the accused in coming to the conclusion that the accused was guilty of the encroachment'' and so the

conviction is correct.

The District Magistrate seems to think that after the accused had'' denied the offence when he. was first questioned he cannot plead guilty. This

he says is opposed to Section 244 , Cri. P. C. Section 244 , Criminal P. C.:, itself lays down that if the-accused does not admit the guilty in the first instance, the Magistrate shall proceed to hear the complainant and take all-such evidence as may be produced in sup port of the prosecution and also hear the accused and take all such evidence as he produces in, his defence, ''

Under this section therefore after the witnesses for the prosecution are examined, he must hear the accused and if the accused admits his guilt, I do not see any reason why the Court cannot accept that admission, and particularly so in this case when the witnesses are not cross-examined at all.

In such a case the Court is certainly justified in convicting the accused. The view propounded by the District Magistrate in this reference is not

justified, either on the provisions of the Code or'' on any decision of this Court. The conviction and sentence of the accused are confirmed. The reference is not accepted.