T.N.R. Tirumalpad, J.C.
1. The petitioners have come up to this Court in revision against their conviction and sentence of fine passed by Shri K.P. Datta first class Magistrate, Agartala for theft under Section 379, I.P.C. Their appeal No. 32 of 1960 before the Sessions Judge against the said conviction and sentence was dismissed.
2. The case against the petitioners was that on 17.9.1956 they removed fish, in spite of protest by the respondent's care-taker P.W. 2, from a cei1-tain tank in jote No. 17 which belonged and was in the possession of the respondent Radha Ballav Dalal by purchase under a Kabala dated 2.4.1955 from one Indoprova Devi. It was stated in the petition of complaint that the petitioners did so out of evil motive and greed. It was also stated in the complaint that the fish in the tank had been reared by the complainant after his purchase from Indoprova Devi and further that the value of the fish taken away will be about Rs. 50 to 60.
3. The defence of the petitioners was that the said tank was taken lease of by them from its owner one Sudhir Dev Barma on 31.8.1958 for a period of 5 years and was in their possession and that they did not commit any offence in catching fish from the tank. They also denied that they removed any fish on 17.9.1956.
4. The learned Magistrate discussed the prosecution and defence evidence and came to the conclusion that the tank was clearly in the possession of the complainant at the material time and further that the petitioners caught and removed fish as alleged. He therefore found them guilty under Section 379. The learned Sessions Judge went a bit further and said that the tank was in the possession of the respondent not only at the material time but ever since the date of his purchase from Indoprova Devi on 2.4.1955 and that the petitioners in a body caught fish from the tank in spite of the protest of the care-taker P.W. 2. He therefore concluded that the fish was dishonestly removed by the petitioners rendering them liable under Section 379.
5. Neither of the Courts below discussed the question whether the plea of the petitioners, that they had a ,bona fide claim of right t0 the tank and the fish therein and hence there was no dishonest intention on their part in removing the fish, had any substance in it. The Magistrate took it for granted that when once the possession of the tank was found to be with the complainant, the dishonest intention of the petitioners in removing the fish from the tank could be more or less presumed. The Sessions judge accepted the dishonest intention of the petitioners because they had removed the fish in spite of the protest of the care-taker P.W. 2.
6. Now in revision it was argued before me that the lower Courts went wrong in not dealing with the plea of the bona fide claim of right set up by the petitioner and in not deciding whether the petitioners removed the fish in the assertion of such a claim. It was pointed out that it was the duty of the lower Courts to see whether the said assertion by the petitioners was made in good faith or whether it was a mere pretence and that only if they came to the latter conclusion could the petitioners be held guilty. It was also pointed out that mere proof of possession of the tank by the respondent was not sufficient to convict the petitioners, unless the dishonest intention was also established by the prosecution independently of the proof of possession. My attention was also drawn to the decision Dhirendra Mohan Gossain v. The Emperor 14 Cal WN 408, which also related to a case of theft to fish from a tank.
7. Before I proceed to deal with the question of law, let us be clear on facts. Jote No. 17 in which the tank was situated belonged to one Thakur Jogendra Mohan Dev Barma. He died leaving two widows Indoprova Devi and Padma-mala Devi and two sons by the latter namely, Sudhir Dev Barma and Jatindra Dev Barma. Indoprova Devi who was childless refused to recognise Padmamala Devi as the legally wedded wife of the Thakur and was claiming all the properties of her husband including jote No. 17 Then Sudhir Dev Barma and Jatindra Dev Barma filed a declaratory suit No. 17 of 1955 and they obtained an injunction against Indoprova Devi restraining her from alienating the properties. The date of the injunction order was not proved in the criminal case. But normally we have to take it that at must have been obtained soon after the filing of the suit.
The Kabala under which the respondent claimed the property was executed by Indoprova Devi on 2.4.1955 i.e. about 3 months after the filing of the suit. The learned Sessions Judge has remarked that in the absence of any definite evidence about the date of the injunction it cannot be said that the transfer under the Kabala dated 2-4-1955 could not be taken into account. Perhaps he meant that it cannot be said that the Kabala was executed in violation of the injunction order and hence it must be treated as conveying legal title to the respondent in jote No. 17 including the tank. But the learned Sessions Judge forgot that it was for the prosecution to establish that the Kabala on which the respondent was relying to prove his possession of the property conveyed legal title to him and that the accused had no onus on them to disprove that the Kabala was a valid one.
8. On 31.8.1956 Sudhir Dev Barma granted a lease of the tank in favour of the petitioners for a period of 5 years The learned Sessions Judge has remarked that it was significant that this lease was given at a time when the title suit was still pending and therefore if anybody wanted to ignore the Court proceeding, it was Sudhir Dev Banna along with the petitioners. I am unable to understand what exactly the Sessions Judge intended to convey by this. If it was his intention thereby to say that the lease produced by the petitioners in support of their bona fide claim of right was a. mere colourable pretence and did not convey them any right, he should have expressed it in clearer language. As far as we are concerned, the Kabala and the lease have both been executed during the pendency of the suit and that too by the Opposing parties in the litigation.
9. I may complete toe narration of facts by stating that the title suit filed by Sudhir Dev Barma was eventually decreed in 9.7.1959 i.e. at a time when the criminal case was pending in the Magistrate's Court. The decree in the suit was however produced only in the appeal before the Sessions Judge. In any case the decree proved, that the claim of right set up by the accused by virtue of the lease from Sudhir Dev Barma was vindicated by the decree and proved to be not a sham or colourable pretence get up merely as a defence to the criminal case.
10. It is in the light of this that we have to decide whether the prosecution has proved the necessary ingredients to establish the case of theft of fish. I may here refer to the decision 14 Cal WN 408. That case related to a fishing tank which the prosecution claimed to be in the possession of the complainant for about 20 years before the occurrence and the accused were said to have caught fish from the tank. The plea of the accused was that they had purchased the tank about 11 months before the date of occurrence and that they had a right to catch fish. The Magistrate however held that the possession of the complainant was established beyond doubt and that even if the accused had the legal or rightful ownership of the tank they cannot catch fish from the tank, so long as the complainant was not dispossessed by legal process and that, when the accused with the full knowledge of the possession of the complainant and in spite of his protest removed the fish, they could not get the protection of a bona fide claim of right and were guilty of theft.
But the Calcutta High Court in a Bench decision held that the accused had been asserting a claim and that they should not have been convicted of theft unless the Court was in a position to say that the claim was a mere pretence, and that it was a matter to be decided by a civil court and should not have been made the subject-matter of criminal proceedings. Hence they acquitted the accused. The decision appears to be fully applicable to the present case.
11. To prove an offence of theft it is not enough if the possession of the complainant of the movable properly in question is established. Dishonest intention in removing the property has to be established in addition. In my decision as Judicial Commissioner of Manipur in Dojakhai v. Khamjathang Gangta in Cri. Revn. case No. 3 of 1960, I have exhaustively dealt with this question. I have dealt with Section 378, I.P.C. which defines theft as taking of moveable property out of the possession of any person without his, consent with the intention to do so 'dishonestly'. I have further dealt with Section 24, I.P.C. which defines the word 'dishonestly' as meaning 'with the intention of causing wrongful gain to one person or wrongful loss to another person'. I have also deal t with Section 23. I.P.C. which defines wrongful gain and Wrongful loss.
12. I have held that in a case of theft, the prosecution has to prove besides possession of the movable property that it was taken from the possession of the complainant with the intention of making wrongful gain to the accused or causing wrongful loss to the complainant. The prosecution may attempt to prove both wrongful gain and wrongful loss. But it is enough if they prove one or the other.
13. If they decide to prove the intention to cause wrongful loss to the complainant, they will have to prove that the loss was of property to which the complainant was legally entitled. There can be no question of loss to him unless the property is proved to belong to him. Thus, it has to be shown that the possession of the complainant was of property to which he was legally entitled.
14. If the prosecution seeks to prove the intention to cause wrongful gain to the accused, the prosecution has to prove that the gain was of property to which the accused was not legally entitled. This is but common sense because there will be no question of wrongful gain to the accused, If he was legally entitled to the property. It is not necessary in that case to prove that the complainant was legally entitled to the property, because when a person dispossesses another of a property in the latter's possession With the intention of making a gain for himself, the possession of the latter is supreme until a person with better title to the property comes along and dispossesses him. Thus what the prosecution has to prove is that the accused has not got a better title to the property than the complainant. This lack of title in the accused can usually be proved by proving the title of the complainant or of some person other than the accused, through whom the complainant claims to be in possession.
15. I shall give an illustration of the two positions. If A has a fountain pen in his possession and B is said to have dispossessed him with the intention of causing wrongful loss to A, A has to prove that he was entitled to the fountain pen. His mere possession is not enough to prove the Intention on the part of B to cause wrongful loss to A. If A however alleges that the dispossession was on the part of B to cause wrongful gain to himself, A need not prove his title to the fountain pen. His possession is supreme against all, but the true owner. Thus he will have to prove that B was not the true owner of the fountain pen.
16. Thus it is not enough for the Criminal Courts to convict a person of theft merely to hold that the possession of the movable property was, with the complainant and that the complainant was dispossessed by the accused. It is wrong to say in the face of Section 23, I.P.C. that the criminal Courts are not concerned with the title to the movable property but only with the possession of the same in cases of theft. In order to prove dishonest intention the question of title to the property certainly will enter into the picture.
17. Thus, where B takes away the fountain pen from the possession of A without his consent stating that the fountain pen belongs to B, no dishonest intention can be attributed to B unless A proves that the so-called claim of B that the fountain pen belonged to him Was a mere pretence, just to camouflage his real intention of causing wrongful gain to himself or wrongful loss to A. Thus the various High Courts have in a series of decisions laid down that a bona fide claim of right would be a good defence in a charge of theft. This is on the principle that an accused who dispossesses a complainant of his movable property in good faith by virtue of such a claim, cannot be said to have the intention to cause wrongful gain to himself Or wrongful loss to the complainant. Thus when the accused sets up the defence that he had a claim to the property which he took away from the complainant, it is for the prosecution to establish the dishonest intention to show that this so-called claim was not made in good faith, but was only a cloak to conceal trig dishonest intention and that there was no substance in the claim to the knowledge of the accused himself.
18. It may be that the accused acted illegally even on the basis of his claim to the property in dispossessing the complainant, because a person cannot take the law into his own hands. If the possession was with the complainant and the accused wanted to get possession on the basis of his claim, he can dispossess the complainant only by due process of law. But in a case of theft, the accuse cannot be found guilty by holding that he acted illegally in dispossessing the complainant. Theft can be established only by prove of the dishonest intention and not by proof of illegality. The accused may be liable for such illegality in tort or under civil law or may be guilty under some other section of the Penal Code as for example, mischief as defined under Section 425 of the Penal Code. In a case of mischief it is not in every case necessary for the complainant to prove that he was the Owner of the property and the accused also may not be absolved by proving that he was the owner of the property or by setting up a claim of right. But in a case of theft, no accused can be found guilty by proof at such illegality unless dishonest intention is established beyond any manner of doubt.
19. Now coming to the case before us, the property involved in this case is the fish removed from the tank in question. We are concerned first as to the person in possession of the fish. The lower Courts have held that the possession of the fish was with the respondent by showing that the tank from which the fish were caught was itself in the possession of the respondent. Evidence was also let in by the respondent to prove that the tank belonged to him. The lower Courts were, however, satisfied by proof of possession and did not go into the ownership of the tank.
20. The allegation in the complaint was that the petitioners out of evil motive and greed caught and removed the fish reared and preserved in the tank by the respondent. We may take it from this that the prosecution sought to prove the dishonest intention by proving that the petitioners intended to make wrongful gain to themselves by unlawful means. Thus in accordance with the principle I have enunciated earlier, the respondent had to prove in addition to his possession of the fish that the petitioners were not entitled to the said fish.
21. So what the lower Courts had to find was (1) that the respondent was in possession of the fish and (2) that the petitioners were not legally entitled to the fish. The lower Course did not give any finding separately as to the possession on the fish with the respondent. They appear to have held that because the tank was in the possession of the respondent, the fish which were in the tank must also be in the possession of the respondent. Before convicting the petitioners for theft the lower Courts had further to find that the petitioners were not legally entitled to the fish. The burden was on the prosecution to do this. If on top of that the petitioners themselves sought to prove that they were legally entitled to the tank by virtue of the lease from Sudhir Dev Barma and hence to the fish in the tank, the lower Courts had to investigate that position and to decide whether there was any basis for that claim of the petitioners. That they have not done in this case.
22. I have already pointed out that the claim of Sudhir Dev Barma to the tank was established in the title suit filed by him and that the decree was passed while the criminal case was pending in the Magistrate's Court. Thus the Sessions Judge knew that the title of the lessor of the petitioners to the tank was established in a Civil Court. The respondent got the Kabala from Indoprova Devi after the said Civil suit was filed by the petitioner's lessor and hence his right to the tank no longer held good and that of the petitioners was established. In the lace of this, no dishonest intention can be fastened on the petitioners and they should have been acquitted of theft.
23. A new line of argument was set up before me by the learned Advocate for the respondent. It was that we were concerned in this case of theft not with the possession or ownership o the tank but with die possession and ownership of the fish in the tank. He pointed out that the respondent had stated in the complaint that the fish were reared and preserved by him in the tank. He also pointed out the evidence of 3 P.Ws who had stated that the fish were reared in the tank by the respondent. He, therefore, said that the possession of the fish as well as the ownership of the fish in the respondent has been established by him and even on the principle enunciated by me, the dishonest intention of the petitioners was established. He also drew my attention to the decision Shaikh Abdul v. Emperor reported in 30 Cri.L.J. 511 : AIR 1929 Pat 86.
24. The lower Courts, as already stated, did not give any such finding that the fish were reared toy the respondent or that he was the owner of the fish. They found the possession of the fish to be with the respondent because they found the tank to be in the possession of the respondent. They did not give any separate finding about the fish. That was why I was dealing with the possession find ownership of the tank and not of the fish separately. We have to remember that the fish cannot exist without tank and that the possession of and title to the fish must depend on the possession of and title to the tank If, however, the tank had been in the undisputed possession of the respondent for a long number of years and he proved that he was rearing the fish in the tank during all those years, we may say that the title to the tank would be of secondary importance and that any person who tries to dispossess the respondent of the fish in the tank on the basis of his title to the tank did not do so in good faith. But that is not the case here.
Even according to the finding of the lower Courts, the respondent got possession of the tank as a time when there was a dispute in existence between his vendor and the petitioners' lessor and when already a civil suit regarding the title to the tank was pending which ended in favour of the petitioners' lessor during the pendency of the criminal case. Thus it is certainly not a case where the fact that the respondent reared the fish can be taken into account separately as giving him title to the fish as distinct from the title to the tank. After all die respondent is said to have got possession of the tank only on 2.4.55 and the occurrence took place on 17.9.56. Hence I am not prepared to accept the respondent's title to the fish on the ground that the fish were reared by him in the tank which is now proved to belong to the petitioner's lessor.
25. The decision 30 CriLJ 511 : AIR 1929 Pat 86 deals with a case of theft of crops from land which was proved to be in the possession of the complainant and his predecessor in title for 15 years before the occurrence. In that case, the land in question was sold by one Nabu on behalf of himself and as guardian of one Bacha Das to one Panchu Bhagat in 1913. Panehu Bhagat sold the land to the complainant in 1920. In November 1927 the accused Shaikh Abdul took a sale-deed from Bacha Das after the latter became a major, of a share of the land and in March 1928 on the strength of the said purchase Shaikh Abdul along with others forcibly removed the crops from the land knowing that they were raised by the complainants bataidar. In that case Fazl Ali J. remarked
There is no doubt that the decision on this point will depend in each case on the circumstances of that particular case, but it may be safely laid down as a general proposition that in cases where the alleged theft consists in the removal of crops grown on land, the most vital question to be investigated is as to which of the parties had grown the crops and that a decision on this point will in the majority of cases enable the Court to come to a definite conclusion as to whether the claim of the accused is made in good faith or is a mere pretence.
26. In our Courts, Section 379, I.P.C. is very often used in cases of removal of crops from land to accuse the person who harvests the crops of theft by the person who claim, to have grown the crops. There are a large number of decisions of various High Courts holding as to when such removal will amount to theft. Many decisions have been considered by Fazl Ali J. in the decision cited above. In one case Raknal Dolui v. Makham Lal AIR 1927 Cal 701 quoted by Fad Ali J., Cumming, J. had observed in a case of removal of crops from the land:
We are not in the present case concerned with the title of either party to the land. What we are concerned with is who were in possession on the day of the occurrence with or without title and who grew the crops in question.
This observation was referred to by Fazl Ali, J. in 30 CriL.J. 511 : AIR 1929 Pat 86 along with various other decisions and he proceeded to say:
By referring to these decisions I do not mean to suggest that the question of title to the land will be immaterial in every case in which the alleged theft is said to consist in the removal of the crops growing on the land; but generally speaking once the Criminal Court is able to come to a finding as to who was in actual possession of the land and had grown the crops on the land, the question of title will at once become a secondary consideration.
Later m the decision the learned Judge proceeded to say:
Thus the question which the Criminal Court has to decide in a case like the present one is as to who was in possession of the crops forming the subject-matter of the offence at the time the crops were cut and removed. There cannot be much difficulty in answering this question, once it is ascertained as to who was in possession of the land and who had sown the crops, cared for it and spent money and labour on it. As to the plea of good faith, it will be negatived as soon as it is found that the accused was aware of the fact that he was neither in possession of the land nor had he grown the crops.
27. As pointed out by Fazl Ali, each case will depend on the circumstances in that particular case In the case before that learned Judge, the land was in the undisputed possession of the complainant and his predecessor for 15 years before the occurrence and his bataidar had raised the crops Such long established possession of the land by the complainant and the sowing, caring and spending of money and labour for raising the crops will clearly prove the possession and ownership of the crops to be with the complainant. Such long-standing possession of the land will give the right to the complainant to raise crops, on the land and will make him legally entitled to the crops. It is on the basis of such long possession of the land and ownership of tile crops that the removal of the crops by the accused knowing them to have been raised by the complainant was held to be dishonest.
28. But the decisions relating to the crops on land may not fully apply to cases of removal of fish from a tank. Even in the case of crops on land, Fazl Ali, J. has only stated that the question of title to the land will become a secondary consideration when long possession of the land and the growing of crops by the complainant on the land has been proved The question of title to the land will still remain a question to he considered because the title to the crops will depend on the title to the land. The complainant will have to prove that he was entitled to raise the crops on the land. Long-standing undisputed possession of The land would give him that right. If we take the case of A, the owner of a land leaving the place for sometime and during his absence of B taking possession of the land and cultivating crops on it and on return, of A finding that B has raised the crops on his lands removing the crops, A certainly cannot be said to be guilty of theft of the crops because B cannot be said to be legally entitled to the crops which he has raised on the lands of A and so A cannot be said to have a dishonest intention either to cause wrongful loss to B or to make wrongful gain for himself.
29. As far as our present case is concerned, the decision of Fazl Ali, J. will not, in any way, help the respondent. At no time was the respondent in undisputed possession of the tank. He said to have got into possession when the dispute was pending in the civil court between his vendor and the petitioners' lessor. The Civil Court a now declared the title of the petitioners' lessor in the tank. The case of the fish in the tank cannot be taken separately from the ownership of the tank. The petitioners caught and removed the fish on their claim of right to the tank and to the fish therein which has been upheld by the Civil Court It cannot therefore be said that dishonest intention has been proved against the petitioners.
30. The revision petition is allowed and the conviction and sentence of the petitioners are sot aside and they are acquitted.