A single, fugitive act of possession is insufficient to establish actual possession for the purpose of sustaining convictions for mischief or rioting.

( 1 ) THIS Rule is directed against an order of Sri J. N. Roy, Magistrate, 1st Class, Jhargram, dated 9-8-1954, by which the petitioners were convicted under Sections 147 and 427 of the Indian Penal Code. Each of the petitioners was sentenced under Section 427 to pay a fine of Rs. 30/-, in default to suffer rigorous imprisonment for one month. No separate sentence was passed under Section 147, Penal Code.

( 2 ) AN application was made before the learned Sessions Judge of Midnapore for a reference to this Court with a recommendation that the convictions of and the sentences imposed upon the petitioners be set aside but the learned Judge declined to interfere. Thereafter the petitioners applied to this Court and obtained the present Rule,

( 3 ) THE facts shortly stated are that the complainant had taken settlement of about 12. 50 acres of land comprised in C. S. Plot No. 3/702 and 4/703 under interest No. 1 of mouza Rajpahari, Police Station Nayagrarn, from the Nawab Estate belonging to the Murshidabad House. It was stated that a salami was paid and an annual rent of Rs. 12-2-0 had been fixed. Settlement, thus obtained, was in favour of one Aghore Chandra Jana and the complainant in this case. The Prosecution case is that after having obtained the settlement, some time in March 1952 the complainant took possession of the land and in July, 1953, a portion of the land was brought under plough and ground-nut seed were sown. Just a few days thereafter, the allegation is, when the seeds were germinating, the petitioners with several others came up to the land, ploughed the field despite protest made on behalf of the complainant. The result of the ploughing up of the land by the petitioners was damage to the germinating seeds which caused a loss of about Rs. 200/- to the complainant. With these allegations the complainant came to Court and examined several witnesses in support of the case which he made.

( 4 ) TO the two charges under Sections 147 and 427, Penal Code, that were framed in the case the petitioners pleaded not guilty. Their defence appears to be that the disputed land was in the possession of the villagers including the petitioners. "the river having eroded, a part of the land went into the river bed and it was lost until some time later that it was reformed in the year 1350 B. S. , whereafter the villagers possessed the land and brought it under cultivation. In support of the case which the petitioners made two witnesses were examined and they gave evidence to prove that actual possession of the land in question was with the villagers who had been cultivating the land and growing crops on it.

( 5 ) THE learned Magistrate, however, believed the Prosecution case and found that the petitioners having come up on the land with lathis etc. , and ploughed it up despite protest on behalf of the complainant, they must be held to have been guilty of rioting under Section 147, Penal Code, and that by causing damage to the seedlings they were further guilty under Section 427 of the Code.

( 6 ) THE main evidence in the case is that in the year 1952 the complainant and Aghore were inducted upon the land by the Zemindar, namely, the Murshidabad Estate. The deed of settlement as also the rent receipts purporting to show payment of rent on account of char lands including the disputed plot were produced at the trial. The Prosecution relied further upon the fact that an attempt was made by one of the defence witnesses to obtain settlement of the land but 'settlement was refused to him which left him discomfited and the complainant and another were given the settlement instead. The learned Magistrate has referred to the evidence mainly of three witnesses being P. Ws. 2, 3 and 5 for the purpose of showing that the land in question was cultivated just a few days before the date of the alleged occurrence.

( 7 ) IT is quite clear from the evidence in the case as also from the findings arrived at by the learned Magi