BRIJ MOHAN LALL, J.

( 1 ) THIS is a reference under Section 438 of the Criminal P. C. by the learned Additional Sessions judge of Agra recommending that the conviction of Ram Prasad Vaidya and four others recorded by a learned Magistrate, first class, of Agra, under Section 297/149 "be set aside and the parties be directed to seek redress in the proper civil Courts if they are so advised".

( 2 ) A complaint was filed by two persons, viz. Sidh Behari and Jai Narain, against Earn Prasad vaidya and his four campanions, charging them with having committed offences punishable under "sections 295/297/147/149, Indian Penal Code" Sidh Behari described himself as the manager and trustee of a temple and Jai Narain called himself a Pujari thereof. It was alleged that the accused persons had forcibly entered the temple on 17-9-1948, dug out the Singhasan and the platform and thrown away the idols. 2a. The defence was that the building in question was not a temple but a private house which had been sold two days before by Shrimati Bibbo (the mother of one of the accused, viz. Gutti) to the wife of another accused, Earn Vinod, and the, purchasers had, in lawful exercise of their civil right, entered the house they had purchased and obtained possession thereof. A charge was framed by the learned Magistrate under Section 295/149, I. P. C. It ran as follows:

"that you on or about the 17th day of September 1948, at 1 p. m. at Jumma Kinara damaged, defiled and destroyed the idols at Sri Laxmi Narainji temple with intent to cause icsult to the religion of the complainant and in doing so all acted with the common object and thereby committed an offence punishable under Section 295/ 149, Indian Penal Code, and within my cognizance".

( 3 ) THE learned Magistrate held that the building in question was a temple and in a portion of the said building Jai Narain was living as a Pujari. Further, he held that Sidh Behari, the other complainant, was neither the Manager nor the trustee of the said temple. As regards the occurrence, he was of the opinion that the accused persons had, in fact, forcibly entered the temple, dug out the platform and thrown away the idols. On these findings, he recorded a conviction under Section 297/ 149 I. P. C. and sentenced every one of the accused to pay a fine of Rs. 50.

( 4 ) THE accused persons filed a revision and the learned Session Judge was of the opinion that it was "difficult to hold that any idols were defiled or thrown away". There was, however, evidence in favour of the idols being thrown oway and, if the learned Magistrate was of the opinion that that evidence was believable it was not for the Sessions Judge to set aside that finding of fact in revision and to substitute his own finding in place thereof. It cannob be contended for a minute that the Magistrates finding was either perverse or unsupported by evidence. This reference must therefore, be decided on the assumption that the learned Magistrates findings of fact are correct.

( 5 ) THE learned Sessions Judge had further held that, even accepting the findings of fact recorded by the learned magistrate, the conviction is" vitiated by several legal defects. It is stated, in the first instance, that the charge does not contain a statement to the effect that the accused persons were members of an unlawful assembly and therefore the conviction is bad. With this argument I am unable to agree. The accused knew full well what the allegations against them were. They were not prejudiced by the fact that membership of an unlawful assembly was not specifieially mentioned in the charge. The charge, as already stated, was framed under Section 295/149 I. P. C. The mention of Section 149 was a clear indication that the accused were being treated as members of an unlawful assembly. Section 537 (a) Cr. P. C. is clear on the point. It says that no sentence or order passed by a competent Court shall be reversed or altered by any Court of appeal or revision on account of any erro

Click Here to Read the rest of this document