Any value, however trifling it may be, is quite sufficient for an offence under Section 426, Penal Code, and the taking of earth from someone's land certainly deprives him of or destroys some property which has some value.

( 1 ) THIS Rule was issued against an order of acquittal of an accused person by a Magistrate, First Class, Burdwan, of an offence under Section 428, Penal Code.

( 2 ) IT is rather surprising that a Magistrate of the First Class is totally ignorant of the Indian Penal Code or the Code of Criminal Procedure. He has riot entered at all into the facts of the case but acquitted the accused on two so-called preliminary points.

( 3 ) THE prosecution case was that the accused had excavated earth from the land of the complainant and as earth has some value, whatever may be its actual worth, the accused intended to commit mischief under Section 426 of the Code, if facts are proved. The Magistrate does not find on the facts that no earth was excavated. Therefore it is meaningless, for the Magistrate to say that the value of the loss not having been stated by the complainant the accused must be acquitted. The Magistrate would have been justified in not trying the accused for any of the graver offences like Section 427 etc. , as the value was not stated, but any value, however trifling it may be, is quite sufficient for an offence under Section 426, Penal Code, and the taking of earth from some, one's land certainly deprives him of or destroys some property which has some value. Therefore, there is no reason for an acquittal on that preliminary point by the Magistrate. He should nave gone into the facts.

( 4 ) HIS second preliminary point is that that the offence was not fully explained to the accused under Section 242 of the Code of Criminal Procedure. If he thought that the accused had not full notice of the offence, under Section 242 of the Code, that he had to answer in that very Magistrate's Court, the proper procedure for the Magistrate would have been to explain the offence as fully as the Magistrate was capable of till he was satisfied on that score and try the accused again after the accused had full notice of the offence he had to meet. That omission by the Magistrate himself gave the Magistrate no power to acquit the accused person without entering into the merits of the case at all. As I have said it is time that a First Class. Magistrate made himself acquainted with the law which he is dispensing.

( 5 ) THE Rule is accordingly made absolute. The acquittal is set aside and the matter is remand ed to be tried by some other Magistrate to be selected by the District Magistrate, Burdwan. Rule made absolute.