T.N.R. Tirumalpad, J.C.
1. This is a revision petition against the order of the Assistant Sessions Judge in Criminal Appeal No. 52/1/1959 by which he confirmed the conviction under Section 379 I.P.C. of the petitioner and the sentence of a fine of Rs. 80/- passed by the S.D.C., Churachandpur in Criminal Case No. 14-C of 1959. The first respondent herein filed a complaint on 17-11-58 against the petitioner stating that the complainant had a land known as Nalon land which was granted for settlement in his favour by an order dated 17-3-56 passed by the S.D.C. Churachandpur in Miscellaneous Case No. 208-C of 1955-50, that he had cut ekra grass from the said field and kept it in the sun for drving. and that) on 10-11-58 at about 8-00 a.m. the petitioner without the consent and knowledge of the complainant took away 70 Ipots of grass worth about Rs. 105/-.
It was a warrant case and the first respondent examined himself and 2 witnesses in support of his case to show that the grass was cut by him and kept on the land and that the petitioner along with some 15 others removed the said grass from the field on the morning of 10-11-58 and stored it in his house. In support of his case, the petitioner also produced the copy of the order in Miscellaneous Case No. 208-G of 1955-56 dated 17-3-56.
The order however showed that the prayer for erecting huts in Tarangpokpi which fell within Nalon land was given to one Songthang of Nalon village. The first respondent's name was not seen in the said order as having obtained settlement of the land. Another document produced by the first respondent was the order passed by the S.D.C. on 21-9-1956 on a petition filed by the present petitioner for cancellation of the said order in Miscellaneous Case No. 208-C of 1956.
The said order showed that the S.D.C. was not prepared to interfere with the orders already passed. Though these documents were produced by the first respondent, I do not find that either the first respondent or his witnesses referred to them in their evidence. Neither did the Magistrate in convicting the petitioner refer to the said orders in his judgment.
2. He framed a charge under Section 379 I.P.C. against the petitioner. The petitioner pleaded not guilty to the charge and stated that he did not steal any thatching grass out of the possession of the complainant. He examined 2 D.Ws. on his side. The evidence of D.W. 1 was intended to show that the thatching grass was cut by D.W. 1 from the land at the instance of the first respondent and that the petitioner at the time of the cutting objected to it, but that D.W. 1 cut the grass and handed it over to the complainant.
The evidence of D.W. 2 was intended to show that the thatching grass grew m the land belonging to the petitioner and further that the petitioner had no hand in carrying away the Hatching grass which had been cut. In the statement under Section 342 CrI.P.C. the petitioner denied that he carried away the thatching grass out of the field of the complainant on 10-11-59 and that the thatching grass was growing in his village in the field belonging to him, and that he had got permission for the settlement of the said field.
It would appear that the defence wanted to produce documents in support of the said case that the field from which the thatching grass was cut belonged to the petitioner. But the Magistrate did not grant the permission.
Thus without going into the question whether the field from which the thatching grass was cut belonged to the respondent or to the petitioner, the Magistrate held that the land where the grass were growing belonged to the complainant and that the petitioner took away the grass out of the possession of the complainant without his consent and that he had thereby caused wrongful loss of property to which the complainant was legally entitled. He accordingly convicted the petitioner and sentenced him to a fine of Rs. 80/-,
3. When the matter went in appeal, the Assistant Sessions Judge permitted the petitioner to file his documents to show that he was entitled to the land from which the thatching grass was cut. Accordingly, the petitioner filed Exts. B-l to B-4. But the Assistant Sessions Judge held that though Exts. B-l and B-2 may show that the petitioner was entitled to the land, the question in the case was regarding the possession of the thatching grass and that the petitioner's denial that he did not remove the thatching grass and his defence of alibi showed that his claim of right was not bona fide.
He further held that even though the first respondent may not have shown that he was entitled to the land from which the thatching grass was cut, it was not the real title to the property which mattered to a case of theft, but the fact of possession under a colour of right and that the first respondent's possession of the disputed land for some prior years has been proved and hence the possession of the stolen property, namely, the thatching grass with the complainant was also proved.
He also held that the fact that the petitioner removed the thatching grass without the consent of the first respondent from his possession was also proved. Then he went on to discuss the question whether the petitioner took away the property under a bona fide claim of right. He held that there was no clear evidence to show that the land from which the grass was cut fell within that area allotted to the petitioner, and that though the order Ext. B-1 showed that the petitioner was authorised to open a fruit garden in Tarangpokpi, there was no evidence that he opened the fruit garden or that the thatching, grass was growing in the midst of the fruit trees or plants.
Hence the appellate Court held that the petitioner's claim was not bona fide. On the other hand he held that the petitioner's assertion considered along with his denial of removing the grass and his attempt to prove alibi showed his dishonest intention to cause wrongful loss to the complainant and wrongful gain to himself. On these grounds he dismissed the appeal.
4. I am afraid that there was some contusion in the minds of the Magistrate and the lower appellate Judge regarding the ingrethents which constitute theft under Sections 378 and 379 I.P.C. It is necessary for the prosecution to establish in a case of theft that certain moveable property was taken out of the possession of a person without his consent and that for the purpose of such taking the said property was moved. When the above facts are established there is another ingrethent which has to be established and that is the most important in a case of theft. It is that the accused had the intention to take the said property dishonestly. Dishonest intention has to be established by the prosecution.
5. Now, dishonesty in Criminal law is not what it is in common parlance. It has a technical meaning as defined in Section 24 I.P.C. A person is said to do a thing dishonestly, if he did it with the intention of causing wrongful gain to himself or wrongful loss to another person. The terms 'wrongful gain' and 'wrongful loss' have again been defined in Section 23 I.P.C. A person is said to cause wrongful gain for himself if he obtains the gain by unlawful means of property to which he is not legally entitled. Again, a person is said to cause wrongful loss to another person, if he causes the loss by unlawful means of property to which the latter is legally entitled.
6. In a prosecution lor theft, the Prosecutor in order to prove the dishonest intention of the accused can prove both wrongful gain to the accused and wrongful loss to the owner of the property. In other words, it may be proved that in depriving the person in possession of a property without his consent, the accused obtained the gain of the property, to which ho was not legally entitled and further that he caused loss of the property to the owner of the property to which he was legally entitled.
But it is not necessary that the prosecution should prove both wrongful gain to the accused and wrongful loss to the owner. It is sufficient if the prosecution proves either of the two. It is absolutely necessary that either wrongful gain to the accused or wrongful loss to the owner is proved. It may be that in causing the wrongful loss to the owner the accused did not intend to cause wrongful gain to himself. But still it will amount to theft if wrongful loss to the owner is proved.
7. Now, if the prosecution sets out to prove that there was wrongful loss to the owner of the property, but not that there was wrongful gain to the accused, the prosecution has to prove that the property belonged to the person from whose possession it was taken by the accused or in other words that the person from whose possession it was taken was legally entitled to the property. This is absolutely essential. In such a case proof of mere possession with the person from whom it was taken is not sufficient. It has to be established that he was entitled to such possession. Otherwise, the accused cannot be held to be guilty of the intention to cause wrongful loss.
Hence, when the prosecution seeks to prove that the accused caused wrongful loss to the owner, but not that the accused intended to obtain wrongful gain for himself, the accused will also be entitled to show that the person who was deprived of the property was not the owner of the property and did not have legal title for its possession and hence he has not caused wrongful loss. He can show this by proving his own legal title to the property. He need not of course show anything as the burden is on the prosecution to prove the legal title of the complainant.
8. If on the other hand, the prosecution seeks to prove that the accused obtained wrongful gain for himself, even though he had no intention of causing wrongful loss to the person in possession of the property, it is not necessary for the prosecution to prove that the person in possession of the properly was the owner and legally entitled to such possession. In such a case mere possession of the property with the person in possession is sufficient. A person in possession of property is entitled to retain such possession until a person with a better claim or title to the property comes forward.
Thus if the accused has got legal title to the property which he took away from a person in possession of the property, he cannot be held guilty of the intention to obtain wrongful gain for himself if he deprived the other person of the possession of the property. Thus, in such a case what the prosecution has to prove is that the accused was not legally entitled to the property and that in depriving a person of his possession of a property, the accused had the intention of causing wrongful gain to him self.
The accused will also be entitled to show in defence to such a prosecution case that he was legally entitled to the property. If he shows it, he cannot be held guilty of the dishonest intention, because a person who finds his property in the hands of another, will not be guilty of theft if he removes that property from the possession of the other.
9. In either case, that is, whore the prosecution either seeks to prove that the accused had the intention of causing wrongful loss to the owner or of obtaining wrongful gain for himself or if the prosecution sets out to prove both wrongful gain and wrongful loss, the accused will be entified to show that there was a bona fide dispute about the ownership or right to possession of the property or that ho had a bona fide claim to the property and that the removal of the property was in the assertion of the contested claim.
In such a case even if the Criminal Court finds that the claim of the accused was illfounded the accused will not be held guilty of theft if his claim or dispute was bona fide. This right to the accused to set up a bona fide claim or dispute has been recognised by various High Courts in India and it is not necessary to cite the cases. The reason behind these decisions is that the ultimate authority to decide the right of possession or the ownership of a property is the Civil Court and not the Criminal Court.
Thus where a Criminal Court finds that a real dispute existed as to the ownership or right to possession of a property and that it was really a matter which had to be decided by a Civil Court, the Criminal Court will not allow the Criminal law to be set in motion for the purpose of settling that dispute by accusing one of the disputants or claimants of theft.
10. Keeping the above principles in mind, we shall now proceed to the present case. What the complainant set out to prove in this case was that the land from which he cut the thatching grass was his land, which was granted in settlement to him by the S.D.C. by the order dated 17-3-56 and that therefore he was legally entitled to the thatching grass cut by him and further that in removing the thatching grass from his possession without his consent, the petitioner caused wrongful loss to him.
Thus it was a case where the prosecution sought to prove the intention of the accused to cause wrongful loss to the owner. In such a case the prosecution had to establish that the complainant was legally entitled to the thatching grass. Mere proof of possession of the thatching grass was not sufficient as the learned Assistant Sessions Judge seemed to think. If the complainant had cut the thatching grass from a land which did not belong, to him, he cannot say that wrongful loss was caused to him or that the accused intended to cause such-wrongful loss by depriving him of that property.
The case of the accused was that the land belonged to him and that the complainant had no light to cut that grass. I may state here that it is not a case where the complainant had sown thatching grass seeds and reaped the harvest. Thatching grass grows spontaneously in the land as wild growth, Hence the complainant cannot say that he grew the grass by his own effort and that he was therefore in rightful possession of the grass.
What he has to prove was the rightful possession of the land itself. The document which he produced in the Criminal Court to prove his title to the land, namely, the order dated 17-3-50 did not show that the land was settled in his name. What it showed was that the land was settled in the name of one Songthang of Nalon village. No connection between this Songthang and the complainant was (proved in the case.
Thus the prosecution had failed to prove the most important thing in the case, namely, that the complainant was legally entitled to the thatching grass which he had cut from the land which again was seen to be settled in the name of one Songthang. In the absence of such proof of legal title, the intention to cause wrongful loss ought to have been treated by the lower Court as not proved.
11. The petitioner even went further and sought to prove that the land belonged to him and not to the complainant. He was really not bound to prove this. The question of the petitioner's legal title would come in only when the prosecution sought to prove the intention to obtain wrongful gain tot himself; The learned Assistant Sessions Judge appears to have been satisfied that the petitioner was entitled to the land on the documents produced by him.
It may be mentioned that the land in question was in the hillock called Tarangpokpi. The orders Ext. B-l dated 23-11-56 and Ext. B-2 dated 5-6-57 showed that Songthang of Nalon village, Doujakhai Chief of Ningthi Ching village (petitioner) and one Nekgou had been permitted to open fruit gardens on the hillock called Tarangpokpi. The complainant's name is not found as one of the persons entitled to the land in Tarangpokpi hillock.
The petitioner is seen as one of the persons entitled to the land in Tarangpokpi hillock and the complainant is not seen as one of such persons. Thus, Ext. B-l and Ext. B-2, in any case, went to show ithat the complainant was not legally entitled to the land and hence to the thatching grass cut from that land. The evidence of D.W. 1 showed that the petitioner had objected to the cutting of the thatching grass even when it was being cut.
Under the circumstances the removal of the thatching grass by the petitioner from the possession of the complainant did not prove the dishonest intention to cause wrongful loss to the complainant. It is a matter relating to the title to the land in question which ought to have been agitated in a Civil Court between the parties, and no case of theft can be sought to be made out in a Criminal Court.
12. It follows therefore that the revision petition has to be allowed and the orders of the Courts below have to be set aside. The petitioner is acquitted of the charge brought against him. If the fine has been realised from him, it will be refunded to him.