JUDGMENT

Agarwal, J - This is a reference by the Sessions Judge of Gonda recommending that the conviction of Jadunath the applicant before him under Section 379, Penal Code, be set aside. One Chuni Lal obtained a simple money decree against Jadunath on 14th August 1939 and one-third of the standing crop in four fields was attached. An objection was preferred by the son of Jadunath and one-half of the property was released in his favour. The property attached was put in the custody of one Bhagwati. He made a complaint in the Court of the Sub-Divisional Magistrate Mankapur that on 21st March 1941, Jadunath cut away the standing crop forcibly, in spite of his protest.

2. The case was transferred to the Court of Bench Magistrates and they framed a charge under Section 379, Penal Code. One of the two Magistrates constituting the Bench died and the case was then transferred to the Court of a Stipendiary Magistrate, Mr. L.N. Bhatnagar. On the first day the applicant wanted a de novo trial and the case was adjourned but on the adjourned date his counsel stated that the case might be decided on the evidence recorded by the Bench Magistrates. Mr. Bhatnagar heard arguments and convicted the applicant. The learned Judge has made this reference on three grounds and one of them is that the statements of the prosecution witnesses and the charge sheet were signed only by one of the two Magistrates and therefore the conviction was bad. He has relied on a case reported in Sultan v. Shamsher, A.I.R. 1922 Oudh. 21. In that case it was found that one of two members of the Bench was doing other work when the other was recording evidence. In this case there is nothing to show that the Magistrate who had not signed was absent or was not paying attention to the proceedings when they were going on. The mere fact that he has not signed the proceedings is not enough to show that he was not present. That case is therefore quite distinguishable from the present one. The learned Counsel appearing in support of the reference has relied on another ruling reported in Brij Bhukhan v. Ram Kirat, A.I.R. 1923 Oudh. 163. In that case it was held that the personnel of a Bench hearing a case or at least for constituting a quorum must continue to be the same so long as the trial continues and the jurisdiction lasts. This case has no application to the present one. This point in my opinion has no force. There is also the fact that the accused himself agrees to the case being decided on the evidence recorded by the Bench Magistrates.

3. The other point relied on by the learned Judge is that the applicant was entitled as a judgment-debtor to cut and store the crop as provided by Order 21, Rule 45(2), Civil P.C. The judgment-debtor has no doubt a right to cut and store the produce but that was not his defence. His case was that ha did not cut the crop. It cannot be said that he did not cut the crop dishonestly and had simply out and stored it for the benefit of the decree-holder. This ground also has no force. The third ground taken by the learned Judge is that there was no evidence to show that the judgment-debtor had removed the crop after cutting it. The words used by the witnesses are that the judgment-debtor cut away the crop (katliya). I think these words mean that the crop was cut and removed. Besides this under Expln. 2 to Section 378, Penal Code, a moving effected by the same act which effects the severance may be a theft. Illustration (a) to Section 378 is:

A cuts a tree on Z's ground with the intention of dishonestly taking the tree out of Z's possession without Z's consent. Here as soon as A has severed the tree in order to such taking, he has committed theft.

4. This ground also has no force. I therefore reject the reference.