Tileswar Kalita and Others vs Tankeswar Barua and Another

Ram Labhaya, J.—This petition of revision is directed against the order of the District Magistrate, Sibsagar, dated 29th March 1950 by which the order of the 3rd Class Magistrate, Sibsagar, convicting the petitioners u/s 426, Penal Code, and sentencing them to pay varying amounts of fine was upheld.

The prosecution case was that the land in dispute measuring 9 bighas belonged to the complainant. It was in his possession. He got the land ploughed and had it transplanted through Bhekuli Saikia, P. W. 1. Subsequently, the accused trespassed into the land, harrowed the entire transplanted paddy over 5 bighas and completely destroyed it.

It was admitted that Tileswar Kalita and Lakheswar Barua, two of the accused, had been occupying the disputed 9 bighas of land on Khandua terms. It was in January 1949 that they were served with a notice to vacate the land. It was averred that after the expiry of the period of notice the complainant got possession of the land and had it cultivated-through his ploughmen.

The defence was that 3 of the accused persons were in occupation of the land in question for about 10 years or even more and they got the land ploughed and transplanted as before even at the time when, according to the complainant, he was dispossessed. They denied the allegation of the complainant that the land was cultivated by his Halowa (ploughmen) in the year 1949 as alleged.

The learned Magistrate has found that it was difficult to come to any definite conclusion whether a plat of about 2 bighas of land was ploughed by ploughmen on behalf of the landlord. He was not satisfied that there was any re-transplantation over this area and therefore found that no offence had been committed with respect to this plot.

As regards another area of 5 bighas out of the total area in dispute, his conclusion was that the land represented by 5 bighas had been cultivated by complainant''s ploughmen and this afterwards was harrowed by the accused. In spite of this finding he did not convict any of the accused for trespass which was the main charge. He convicted some of the accused only u/s 426, Penal Code, for causing destruction of the property dishonestly.

On appeal, the learned District Magistrate observed that he had heard the counsel for the parties and had perused the record and also the judgment of the learned Magistrate. He also stated that he had perused the comments on the petition of appeal. He found the judgment of the learned Magistrate detailed and remarked that it dealt clearly with the points at issue. With these observations he held that the accused were rightly convicted u/s 426, Penal Code, as wrongful loss was caused to the complainant.

The appellate judgment is not in conformity with the provisions contained in Section 367 read with Section 424, Criminal P. C.

Section 367, Criminal P. C., requires that the judgment of the original Court shall contain the point or points for determination, the decision thereon and the reasons for the decision. Section 424, Criminal P. C., lays down that the rules contained in chap. 26 as to the judgment) of a criminal Court of original jurisdiction shall apply, so far as may be practicable, to the judgment of an appellate Court other than a High Court. By virtue of this provision, the judgment of the appellate Court should also contain the points for determination, the decision thereon and the reasons for the decision.

The judgment of the District Magistrate does not comply with the requirements of the provisions contained in Section 367. The point for determination, the decision thereon and the reasons for the decision have not been stated. The order does not contain any statement as to the prosecution case or of the defence. The judgment would not give any idea about the facts of the case. In order to understand the case, it would be necessary to refer to the judgment of the trial Court or to other documents referred in the order. The judgment, therefore, is not a proper judgment. It clearly contravenes Sections 424 and 367, Criminal P. C. It may be that the learned District Magistrate gave his full consideration to the case. His judgment, however, is one which is subject to revision and it is obvious that he had not given sufficient material to this Court to come to a decision on the points which arise in the case. As held in Arinara Rajbanshi v. Emperor, 20 C. W. N. 1296: (AIR 1947 Cal. 285: 18 Cri L. J. 294), it is necessary that there ought to be sufficient material in the appellate judgment itself to enable the High Court to form a conclusion as to the propriety of the conviction of each of the accused having regard to the offences with which he was charged, and to enable it to come to a conclusion as to the correctness of the sentence which has been passed upon each of the accused having regard to the nature of the offence with which each of the accused was charged.

In Abdul Karim v. Emperor AIR 1940 Sind 113 : (4 Cri L J 724), it was held that a judgment must contain the points for determination, the decision thereon and the reasons for the decision. Where the reasons in the judgment of the appellate Court are not such as to enable a revisional Court acting under the provisions of Sections 435 and 439, Criminal P. C., to form any conclusion as to the correctness, legality or propriety of the findings, the judgment is clearly defective and the appeal must be reheard.

In Gaharali and Another Vs. Emperor, (25 Cri L. J. 901), it was held that if the judgment of an appellate Court does not discuss evidence and does not give facts indicating the occurrence dealt with in it, the judgment is not a judgment u/s 367, Criminal P. C., and such a judgment must be set aside.

Mr. Medhi on behalf of the opposite party has urged that the judgment of the appellate Court, though not strictly in compliance with the requirements of Sections 367 and 424, Criminal P. C., is not vitiated by the omission to state the points for determination, the decision thereon and the reasons therefor. He urges that it is an irregularity which is curable and in these circumstances of this case rehearing of the appeal is not necessary.

His contention is that the only point in the case was whether loss had been caused to the complainant. The learned District Magistrate after hearing the counsel for the parties and going through the record agreed with the learned Magistrate that the accused, who had been convicted, had been guilty of causing loss to the complainant. In these circumstances a rehearing of the appeal was not necessary. In support of this contention he had first relied on Patilbuva Raojibala, v. Emperor AIR 1926 Bom. 2 : (27 Cri L. J. 1153). In this case also, the District Magistrate''s judgment was very brief. He did not state the points for determination and reasons for his finding as contemplated by Sections 367 and 424, Criminal P. C. But the learned Judge held, in the circumstances of that particular case, that the District Magistrate had gone into the facts of the case. This was indicated by his having acquitted the accused on the charge u/s 434, Penal Code, and the learned Judges were of the view that though mere expression of agreement with the judgment of the Court below was not ordinarily sufficient, regard must be had to the circumstances of the case. On the facts before them, their view was that there was no ''absence of judgment'' and that the irregularity in drawing up the judgment was curable u/s 637, Criminal P. C.

The second case relied on by him is reported in Durga Charan Singha and Another Vs. Isamuddin Mahmud, It was held that where the appellate judgment upholds the conviction and sentence but does not set out the prosecution and the defence and how the prosecution case has been established, the judgment would be defective. But this fact was not considered sufficient to justify interference when the appellate Court had applied its mind to the evidence and had come to the necessary findings.

The last case cited by him is reported in Abdul Rahman v. Emperor AIR 1985 Cal. 316 : (36 Cri L. J. 982). It was laid down in this case that Section 367, Criminal P. C., must be interpreted reasonably and so long as the appellate Court below writes a judgment from which the High Court can gather what the decision of the appellate Court really was, that in the majority of instances ought to be sufficient.

I have carefully considered the authorities relied on by the learned Counsel. These cases are distinguishable. In Patilbuva Raojibala Gavli and Others Vs. Emperor, no general rule was sought to be laid down and the decision was based on the facts and circumstances of that particular case.

In Durgacharan v. Isamuddin Mahmud 48 Cri L. J. 389: (A.I.R. 1918 Cal. 6), the learned Judge held that though the judgment was defective, when read with the judgment of the Court of the first instance, it showed that the learned Magistrate had applied his mind to the evidence and had, in fact, come to the necessary findings.

In Abdul Rahman and Others Vs. Emperor, the judgment in question affirmed the convictions of 30 persons and the convictions of some of the accused were set aside. The objection to the judgment was that it was not sufficiently detailed or sufficiently definite. It was pointed out that the judgment did not contain an express finding that there was any conspiracy as alleged in the charge. On facts, this case is easily distinguishable. The learned Judges were dealing in this case with an elaborate judgment and they held that if it is possible for the High Court reasonably to arrive at an understanding of what has been found in the Court below, it is not necessary that it should captiously or capriciously set aside the judgment of the Court below.

It seems to me that the question whether an appellate judgment, which on the face of it does not comply with the requirements of Section 424 read with Section 367, Criminal P. C., should be set aside must be decided on the facts and circumstances of each case. It would not be safe to lay down any hard and fast rule on the point. Where the judgment in question does disclose that sufficient attention has been paid to the points in dispute and the necessary findings are contained therein, it may not be necessary to order rehearing of the appeal though there is no strict compliance with the requirements of Sections 367 and 424, Criminal P. C.

On the other hand, as held in Abdul Karim v. Emperor AIR 1946 Sind 113: (41 Cri L. J. 724) where the reasons in the judgment of the appellate Court are not such as to enable a revisional Court acting under the provisions of Sections 435 and 439, Criminal P. C., to form any conclusion as to the correctness, legality or propriety of the findings, the judgment is defective and the appeal ought to be reheard.

The reason for this view is obvious. Where no reasons are stated in the judgment of the appellate Court, the exercise of revisional jurisdiction is not possible. The revisional authority can then dispose of the case only by going into the facts. It then must discharge the functions which an appellate Court is required by law to discharge. It may be that the revisional authority may go into facts and may dispose of the case but by doing so it assumes functions of the appellate Court which is not in consonance with the requirements of the Code. Even if, therefore, a judgment of the appellate Court is not strictly in conformity with the requirements of Section 424, it should be such that it should enable the revising authority to exercise its revisional jurisdiction in the manner required by law. The judgment should not be such that the revisional authority must in order to dispose of the case be compelled to hear the case as if it were a Court of appeal. It was apparently this view of the matter which induced the learned Chief Justice of the Calcutta High Court in Arindra Rajbanshi v. Emperor 20 C. W. N. 1296 : AIR 1917 Cal. 285 : 18 Cri L. J. 294) to order rehearing of the appeal even though the judgment in question had been prepared with considerable care. The defect in the judgment was that it did not give the revising authority sufficient material to enable it to come to a decision on the points which arose in the case.

In Gaharali v. Emperor, AIR 1325 cal. 226 : (25 Cri L. J. 901), it was not possible to ascertain from the appellate judgment as to what the occurrence was. The judgment was set aside and the case remitted to the lower appellate Court for rehearing.

The case before me is fully covered by these authorities. It does not state the occurrence. It does not mention the points that arose for decision, the decision thereon or the reasons therefor. It merely states that the counsel of the parties have been heard. The judgment of the Court below, according to the learned District Magistrate was detailed and that the accused had been rightly convicted as wrongful loss was caused to the complainant. In fact, the judgment merely expresses agreement with the finding arrived at in the Court below without stating anything more. The defect or the omission is not merely a technical non-compliance with the requirements of the law. The judgment does not state the reasons which led the learned District Magistrate to come to his conclusion, and thus does not enable this Court to exercise its revisional jurisdiction as required by law.

In these circumstances rehearing of the case seems appropriate. The judgment of the learned District Magistrate is, therefore, set aside. The case is remitted back to him for rehearing of the appeal and its disposal in accordance with law in the light of the observations made above.