1. We are asked to interfere as a Court of revision in a case where the applicant has been ordered to pay a fine of Rs. 75 as compensation under Section 250 of the Criminal Procedure Code. He charged the accused in the Base with offences punishable under Sections 341, 379 and 427, Indian Penal Code, in respect of his a pulling down a privy, which the complainant was using under a claim of right. The complainant's appeal to the Sessions Court has been dismissed, and the essence of the Court's judgment is given in the following words:-
When the accused was excluded from the use of the privy by a person who had a bona fide title, he did not protest or send the accused a notice, but immediately rushed to the Magistrate's Court charging the accused not merely with wrongful restraint (for which there might have been some justification) but also with mischief and theft. The evidence makes it clear that the accused had a bona fide claim to the property and yet he charged him with mischief and theft, offences of which an essential element is the absence of good faith. He did this only to harass the accused and to force him to give up his legal rights without defending them in a civil Court. The habit of invoking the aid of the criminal Court when the dispute is obviously a trumped up one (at the most a civil one) is very common in this district, and the Magistrate has acted wisely in trying to pub it down. In the present case the claim was a shadowy one, and the charge of theft and mischief false and vexatious,
2. Mr. Desai contends that the facts on which the charges of wrongful restraint, theft and mischief were based are admitted, namely, the pulling down of the privy, removing the materials and preventing the use of the privy by the applicant, and that in such a case the accusation cannot be said to be false within the meaning of Section 250. For the purposes of the present application, we must take the facts to be as stated in the Sessions Court's judgment, and even if we depart from those facts and hold that the applicant considered that he had a right to the privy or in fact even suppose that he had a right to the use of the privy, still that will not, in my opinion, really make any material difference, Taking the principal charge of theft, it is a common place that theft is not committed when the property is taken under a bona fide claim of right, however III founded it may be. The removal of property in the assertion of a bona fide claim of right, though unfounded in law and fact, does not constitute theft. But a mere colourable pretence to obtain or keep possession of property does not avail as a defence. Whether the claim is bona fide or not must be determined upon all the circumstances of the case, and a Court ought not to convict unless it holds that the claim is a mere pretence. This is laid down in many cases, of which it is sufficient to refer to Beg. v. Bhicajee (1869) Unrep. Cr. C. 22 and Arfan All v. Emperor I.L.R.(1916) Cal. 66 . It has been found by the Magistrate and the Sessions Court that the accused committed his acts in the assertion of a bona fide claim of right and not simply under a colourable pretence of right. Consequently his action did not amount to theft, and the allegation that he had committed theft implied the false accusation that he had removed the property without any right whatever or without any bona fide claim of right. In such a case the accusation to my mind is as much false as if any other ingredient of the offence, e.g., the removal of the property had been falsely stated. I do not think that in law any distinction can properly be made between a false accusation as to the motive or intention which prompts a man in doing a contain act, and a false accusation as to his act. Considering all the facts found by both the Courts, it seems to me that they could legitimately hold that the accusations were false; and therefore I do not see any sufficient ground to interfere in revision.
3. Mr. Desai contends that, so far as the accusation of theft is concerned the Magistrate ought to have passed the order when the accused was discharged in respect of that offence, and not when the Magistrate passed his order of acquittal in regard to the remaining two offences with which the accused was charged. The section, however, says that 'the Magistrate may, by his order of discharge or acquittal, call upon him forthwith,' etc.; and it obviously was better for the Magistrate to take action in a case like the present not at an intermediate stage of the trial but at the end. Therefore, as the section itself allows the order to be made by the final order of acquittal, we do not think that there is sufficient ground for saying that there had been an error of law in regard to the time when the order was passed.
4. The application is rejected.
5. I agree.