1. The petitioner had obtained this rate against the appellate judgment of the Additional District Magistrate, Balasore, confirming the judgment and sentence of fine of Rs. 25 passed against the petitioner under Section 379, Penal Code, by the Magistrate, 3rd Class, Balasore.
2. The case against the petitioner is that he caught fish in Panehpara river on 10th December 1947 without taking the permission of the complainant who claims to be the licensee of the fishery from Government. The admitted facts are that Plot No. 1326 in Mouza Bahalpur is recorded in the name of Government and is part of a tidal and navigable river. At the previous settlement it was recorded in the name of the local landlord and the fishery right had been assessed at Rs. 9. At the Current Settlement the plot was recorded as a public river in the name of Government. Both the Courts below have proceeded on the assumption that it is a tidal; and navigable river. The petitioner claims to have a common law right of fishing in the waters as the river remains tidal and navigable throughout the year. The question therefore for decision is whether the act of the petitioner in catching fish constitutes theft.
3. The law on what constitutes the offence of theft of fish is more or less well settled. Fish in an enclosed space or in a tank closed on all aides is the property of the owner of the tank, the test being whether the fish are confined 'within a limited space. If on the other hand the fish are in a state of fera natures, they can escape and go wherever they like. In such condition it i3 difficult to say that they can constitute property until they are caught. In a tidal and navigable river the fish can always come for and go into the sea though, for a time they live in the river. The fish are, therefore, in a state of nature and cannot be held to be the property of anybody until they are caught. In my opinion, the lessee of the fishery has obtained from Government nothing more than a right to fish in a particular area. If anybody other than the licensee catches fish his act may amount to an invasion of the right of the lessee to fish and may constitute an act of trespass. There is also clear authority for the view that such an act does not constitute criminal trespass. Whether the act amounts to an invasion of a civil right or not, or whether the licensee obtained an exclusive right to fish by reason of his lease are matters that do not require to be considered in this petition. The offence charged against the petitioner is the offence of theft. The elements of this offence are dishonest removal from the possession of an owner. The catching and removal of the fish being admitted in this case the question is whether the fish were in the possession of the complainant at the time of their removal and whether the removal was dishonest. As I have said already the fish were in a state of fera natures and were not in the possession of the complainant. The intention of the petitioner cannot be characterized as dishonest because he did not intend to cause any wrongful loss to the complainant, the fish not being-in his possession. I am, therefore, satisfied that the elements of the offence of theft have not been made out and that the conviction of the petitioner cannot be upheld.
4. The petition is accordingly allowed and the conviction and sentence are set aside. The fine, if paid, shall be refunded. The rule is made absolute.
5. I agree and wish to add a few words.
6. Theft being an offence against possession it is clearly the duty of the prosecution to show that the fish which the petitioner removed from the river were in tbe possession of the complain, ant. But in view of the admitted fact that the river is a tidal and navigable river it cannot be said that the fish in the river were in the possession of the complainant because they were free to go anywhere they liked. This point has been well settled in a series of decisions reported in Queen v. Revu Pothadu, 6 Mad. 390; Bhagiram Dome v. Abar Dome 15 cal. 888 ; May a Boon Surma, v. Nichaia Katani, 15 cal, 409, which has been followed in a later Patna decision reported in Elahi Bux v. Emperor, A. I. R. (23) 1933 rat. 152 : (37 Cr. L. J. 452). As has been well put in Manchu Paidugadu v. Kadimsetti, 15 Cr. L. J. 77 : (A. I. R. (1) 1914 Mad. 453), the test seems to be 'Could the fish escape ?' In this particular case, there can be no doubt that the fish could easily escape into the sea because of tbe tidal nature of tbe river and, as pointed out by Horwill J. in Krishna Beddi v. Muniappa Reddi, A. I. R. (30) 1943 Mad. 34 : (44 or. I. J,173)
'the fish are free and in a state of nature and so no more belong to the owner of tbe pond than a bird that settles on a tree In a person's garden belongs to that person.'
I would, therefore, agree with my learned brother that the offence of theft is not made out.
7. Whether on the facts of the present case civil action would lie against the petitioner is a matter on which it is not necessary for us to express any opinion.