ORDER Rajeshwari Prasad, J. - The Petitioners were convicted by a Magistrate I class, Muzaffarnagar, by the order dated 10-9-1964 Under Sections 430, 434 and 352 IPC. They were directed to pay a fine of Rs. 50/- each for the offence u/s 430 IPC, Rs. 25/- each for the offence u/s 434 IPC and Rs. 10/- each for the offence u/s 352 IPC. 2. The lower appellate court set aside the order of conviction of the Petitioners u/s 430 IPC but maintained their conviction u/s 352 and 434 IPC. It also upheld the sentence awarded by the learned Magistrate. 3. The present petition in revision is directed against the order of the lower appellate court arid I am now no more concerned with the charge against the Petitioners u/s 430 IPC. 4. From the facts which formed the basis of the prosecution, it appears that certain demarcation pillars and dols (boundary lines) were put up by Mr. V.S. Johri,, an Assistant Consolidation Officer with a view to make demarcation between chaks of the complainant which was chak No. 39 and that of the accused which was chak No. 7. It was alleged that the accused had without right removed the pillars and the dol thus set up by the Assistant Consolidation Officer. They were, therefore, said to be guilty of an offence u/s 434 IPC. There Was a charge u/s 352 IPC against the accused. 5. What has been submitted before me by the learned Counsel for the Petitioners is that Mr. Johri did not have lawful authority to set up the demarcation pillar and the dol in the manner in which he had done and as the land marks thus fixed were not fixed by the authority of the public servant, the Petitioners were not guilty of the offence u/s 434 IPC even though it may be found that they had removed those demarcation pillars and dols. - 6. From the statement of Mr. Johri, who was examined as a prosecution witness, it appears that on 15-3-1964, when he had gone to the spot and had set up the demarcation pillar and dol, he did not hold any authority to do so inasmuch as he did not have any order of the superior authority in that respect. - 6. From the statement of Mr. Johri, who was examined as a prosecution witness, it appears that on 15-3-1964, when he had gone to the spot and had set up the demarcation pillar and dol, he did not hold any authority to do so inasmuch as he did not have any order of the superior authority in that respect. The chaks allotted to the parties had become final and alteration in the same could not be made by the Consolidation Officer himself unless a case of clerical mistake had been made out. It further appears that Mr. Johri on making measurements felt that the chak of the accused contained one biswa land more than what it should have contained. He further found that, the chak given to the complainant i.e. chak No. 39 was deficient in area by about 9 biswas. Compelled by a sense of justice and equity, Mr. Johri took an area of 5 biswas from the chak of the accused and included the same in the chak of the complainant and the demarcation pillar and dols were then set up. To my mind Mr. Johri did not hold any lawful authority to do that which he did on 15-3-1964. In the case of Emperor v. Rameshar and Ors. 27 ILR All 300 this Court had taken the view that where boundary pillars had been set up by order pf a Magistrate exercising jurisdiction u/s 145 Code of Criminal Procedure it could not be said that the land mark had been fixed by the authority of a public servant so a$ to render the person who removes the same punishable u/s 434 IPC. My attention has been invited to another case decided by the Madras High Court. That was the case of Public Prosecutor v. Madhava Bhonjo Santoo and Ors. 17 CrLJ 481. That case is an authority for the proposition that where a public servant is found to have an authority to make survey of an estate and put up boundary marks, bonafide puts up boundary on the land which was not the subject of notification, the removal of such boundary marks could expose the person so doing, to the charge of an offence u/s 434 IPC. In the instant case, on the testimony of Mr. Johri, it is clear that he did not act bonafide or under an honest mistake. In the instant case, on the testimony of Mr. Johri, it is clear that he did not act bonafide or under an honest mistake. It may also be noted that no case of mischief either has been made out by the prosecution against the Petitioners. 7. I am, therefore, of the opinion that the order of the conviction of the Petitioners u/s 434 IPC must be set aside. 8. So far as the conviction u/s 352 IPC is concerned, this also is based in relation to the same set of facts which formed the basis of the charge u/s 434 IPC. The lower appellate court has not referred to any evidence on the record on this particular charge. All that it has said is that the evidence on the record showed that the accused had assaulted the complainant and they had come armed with lathis and pharsas. No reference to any particular piece of evidence has been made by the lower appellate court. 9. In the view I have taken with regard to the charge u/s 434 IPC, I consider it just that the conviction of the Petitioners u/s 352 IPC should also be set aside. 10. The petition in revision is allowed, order of the courts below are set aside and the Petitioners are acquitted of the charge u/s 352 IPC and 434 IPC. 11. Fines if paid shall be refunded to the Petitioners.