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Criminal Revision No. 276 of 1953, decided on 16th September, 1953.
Ss. 379 and 427‑Initial complaint disclosing offence under S. 379‑Whether conviction under S. 427 maintainable.
Held, where the initial complaint and the charge dis closed an offence under section 379, P. P. C. the conviction under section 427, P. P. C., is bad in law and not maintainable.
R. C. Talukdar for Petitioners.
No one for Opposite Party.
‑‑This Rule must be made absolute. It was issued on the District Magistrate of Rajshahi at the instance of four persons Torab Ali Mondal, Nader Ali Mondal Rahimuddin Mondal and Jonab Ali Mondal. They were tried by Mr. N. Zaman, a Magistrate of the 1st Class of Rajshahi and were convicted under section 427 of the Penal Code and fined Rs. 125 each on the 27th December, 1952. Their appeal to the Sessions judge was dismissed by Mr. Esahaquddin on the 26th March, 1953. Thereafter they approached this Court in the exercise of its Criminal Revi sional jurisdiction and obtained the present Rule on ground No. 2. Ground No. 2 reads‑
"For that according to the allegation of the prosecution and the findings of the Court below it 'is a case under section 379, P P C and clearly not under section 427, P P C and as such the conviction is bad in law."
The complainant in the case is one Jafaruddin Mondal and he brought the case on the allegation that the accused petitioners armed with deadly weapons trespassed on to plot No. 68 of Bagshail Mouza which was in the possession of the complainant and demolished two huts belonging to him and took away the materials of which the huts were made causing the complainant of loss of Rs. 200.
The charge which the Magistrate actually framed was in the following terms‑
"That you, on or about the (13th Baisakh) 26th day' of April, 1952, at Bagsoil, P. S. Pabna committed mischief by removing and taking the 2 huts of Gafar (P. W. 1), estimated at Rs. 200 from plot No. 68, Un. 22 of the said Mouza:
The initial complaint also disclosed an offence under section 379.
Mr. Talukdar has appeared in support of the Rule and has no difficulty in succeeding on the ground that as the initial complaint and the charge disclosed an offence under section 379 of the Penal Code, the conviction of the petitioners under section 427 cannot be maintained.
The Rule is accordingly made absolute, the convictions and sentences are set aside and we direct that the petitioners be retried on a charge tinder section 379 of the Code accord ing to law.
K. B. A./M. S. Rule made absolute.
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