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Bhagwat Saran Misir and ors. Vs. Emperor - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtAllahabad
Decided On
Judge
Reported inAIR1916All196; 35Ind.Cas.167
AppellantBhagwat Saran Misir and ors.
RespondentEmperor
Excerpt:
penal code (act xlv of 1860), section 378 - theft--defence--legal right--dishonest action. - - a perusal of the record clearly shows that there was a good deal to be said for both sides. he has carefully gone through the evidence and finds that some of the crops belonged to the complainant, but a perusal of the judgment also shows that the learned magistrate had not very clearly before his mind the great importance of seeing whether or not the zemindar acted dishonestly. in my opinion it would have been better if the order of the first magistrate had been left undisturbed and the complainant had gone to the civil court, where he could have got redress if he was entitled to it. this would have been best for all parties......come to this court in revision, contending that their conviction was wrong in law. the principal accused is a zemindar and the complainant was or had been a tenant of his. there had been disputes between them, which had been settled by the signing of an agreement by which the complainant undertook to build a house and to go and reside there within a certain time; whilst, on the other hand, the zemindar agreed to leave him certain fields. the agreement also provided that if the house was not built, then the zemindar should be at liberty to eject the complainant under the tenancy act or in any other way he thought fit. the complainant never built the house, and there were further disputes between them in consequence. the allegation is that the accused (i.e., the zemindar and his.....
Judgment:

Henry Richards, C.J.

1. In this case the four accused have been convicted of theft and sentenced to pay fines. The accused come to this Court in revision, contending that their conviction was wrong in law. The principal accused is a zemindar and the complainant was or had been a tenant of his. There had been disputes between them, which had been settled by the signing of an agreement by which the complainant undertook to build a house and to go and reside there within a certain time; whilst, on the other hand, the zemindar agreed to leave him certain fields. The agreement also provided that if the house was not built, then the zemindar should be at liberty to eject the complainant under the Tenancy Act or in any other way he thought fit. The complainant never built the house, and there were further disputes between them in consequence. The allegation is that the accused (i.e., the zemindar and his servants) cut and took away the crops of the complainant. A perusal of the record clearly shows that there was a good deal to be said for both sides. The District Magistrate says in his judgment (confirming the conviction): 'It seems certain that the tenant sowed the crops of some of the fields at least which the appellants cut and took away.' A perusal of the record shows that the learned Magistrate tried the case as a civil case. He has carefully gone through the evidence and finds that some of the crops belonged to the complainant, but a perusal of the judgment also shows that the learned Magistrate had not very clearly before his mind the great importance of seeing whether or not the zemindar acted dishonestly. This is not altogether surprising, because it would seem that when the complaint was first made another Magistrate had dismissed the complaint upon the ground that the matter was of a civil nature. The case was taken up a second time in consequence of an order of the Sessions Judge. In my opinion it would have been better if the order of the first Magistrate had been left undisturbed and the complainant had gone to the Civil Court, where he could have got redress if he was entitled to it. This would have been best for all parties. The zemindar seems to have acted on what he supposed to be his rights. It is possible that he was mistaken as to the nature of the latter, but nevertheless he was acting in accordance with what he supposed to be his legal rights. The other accused seem merely to have acted under the orders of their master. I do not wish to be taken as laying down that it is a sufficient defence to a charge of theft for the accused merely to assert that he thought that he was acting within his legal rights. But if the Court finds that a person charged with theft was bona fide acting on what he supposed to be his legal rights, and was not acting dishonestly, the Court should not convict him. A conviction for theft against a man may have very serious consequences beyond the sentence imposed. I allow the application, set aside the convictions and sentences and direct that the fines, if paid, shall be refunded.


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