Ram Labhaya, J.
1. The petitioners in this case were convicted Under Section 341, Penal Code and sentenced to pay a fine of Es. 20 each, and in default to undergo simple imprisonment for one week. The order of conviction was upheld in appeal.
2. The prosecution case was that the jangal (path ail) in front of complainant's bari reached as to and joined the village path to the east of his bari and that this pathway had been in existence since the time of the complainant's grandfather. A part of the pathway, about cubits in length, was on the land of the accused. They included the pathway in their field and grew paddy on it. Plaintiff was thus prevented from using the pathway. This act of the accused according to the complainant amounted to an offence Under Section 341.
3. The defence was that the complainant had no right of way over the land of the accused. Five witnesses were examined on behalf of the complainant. The trial was summary. The learned Magistrate states that these witnesses support the prosecution. They deposed that the pathway had been in existence for a long time. One witness was examined for the defence who stated that the complainant was using another pathway of the accused. The learned Magistrate visited the site of the alleged pathway. He felt satisfied that the complainant's pathway extended up to the village path and that about 3 nols of it lay on the accused's land. As a result of the local inspection or rather with its aid, he held that the prosecution witnesses had given proper description of the path and its locality. They also seemed to him disinterested. He, therefore, found the accused guilty.
4. The learned Counsel for the petitioners urges that the dispute was of a civil nature and in any case the accused bona fide believed that they had the right to include the site of the pathway in their own land they being the owners of the land admittedly.
5. It appears that the complainant claims a private right of way. The dispute evidently can be more appropriately decided by the civil Court. The likelihood or at least the possibility of a bona fide belief in the mind of the accused that they had the right to stop the pathway as it was passing on their land cannot be entirely excluded. Section 339, Penal Code, which defines wrongful restraint provides an exception to the principle embodied in the section. The exception is to the effect that the obstruction of private way over land or water which person in good faith believes himself to have a lawful right to obstruct, is not an offence within the meaning of this section, This exception has not been considered by the Courts below, probably, for the reason that the defence that accused bona fide believed that they had right to close the pathway, was not pressed at the earliest possible opportunity. This failure on the part of the accused, however, should not deprive them of the right to show that the evidence in the case does not exclude the existence of a belief in their mind which takes away their act from the definition of the offence. Moreover, the question in controversy could not be decided properly in a summary trial on the criminal side.
6. In this view of the matter, the convictions cannot be maintained. The petition is allowed. The convictions of the petitioners are set aside. The fines, if paid, shall be refunded.