Walter Salis Schwabe, K.C., C.J.
1. In this case the first accused, a landowner, and the second accused, his agent, have been found guilty of theft.
2. The facts of the case, so far as they are relevant, are these: The first accused bought some land from P.W. 2. That land is situated in a village. There is a large tank in that village where there is grown a large quantity of vital grass used for purposes of thatching. The landowners of that village have rights to that grass and it appears to be the custom to allow the grass to grow for several years and then cut it and divide it, first allowing so much of the cut-grass to the actual cutters of the grass and so much to persons employed to watch the grass during the years in which it has been growing. There are apparently some ten persons entitled to share in this grass. P. W. 2 was one of them. He having sold his land to the first accused, the first accused claimed, no doubt bona fide, that with that land went the right to the share of this grass. P. W. 2 on the other hand, contends that he sold the land without this right and that the right is severable from the land and that, although he sold the land, he kept the right to the grass. In this he has the support of the other sharers, and it is quite clear that he and they intended that the first accused should have no share whatever in that grass. When the reaping had proceeded for a comparatively short time, some three days out of the usual fifteen occupied, the first accused taking the law into his own hands, either went himself or sent the second accused with a large body of men with instructions to remove a quantity of the grass that had already been cut and stocked. Both the accused have been convicted of theft and fined.
3. Theft is defined in the Indian Penal Code thus: 'Whoever, intending to take dishonestly any moveable property out of the possession of any person without that person's consent, moves that property in order to such taking' is said to commit 'theft', and Sections 24 and 23 define the meaning of the word 'dishonestly' with small, and for the purposes of the present case immaterial, variations. That definition is a statement of the Common Law of England as to larceny as it existed at the time of the Code. The definition of larceny in the common Law of England is correctly stated thus in Archbold's Criminal pleading: 'The wrongful or fraudulent taking and carrying away personal goods of another, from any place with a felonious intent to convert them to the taker's own use, and making them permanently his own property, without the consent of the owner. The word 'felonious' in this definition means that there is no colour of right to excuse the act: and the 'intent' being to deprive the owner, not temporarily, but permanently of his property'. In the Penal Code the word 'dishonestly' takes the place of the words 'with a felonious intent' in the English Common Law definition. If there is a taking under a colour of right or in other words, under a bona fide claim, the taking cannot be dishonest or felonious, that is to say, it is not theft. It is immaterial whether the claim is good or bad. It may be material in considering as a question of fact whether the claim was a bona fide claim, to consider whether or not there was any right at all, because the complete absence of right and circumstances such as the Court would be justified in saying could not have led any reasonable man to a belief that he had a right would be cogent matters to consider in arriving at the conclusion whether the claim was a bona fide claim or not. In this case it is to be observed that the learned Magistrate disposed of the matter by saying that the question of bona fides cannot arise where the matter affects third parties. He took the view that such question might well arise as between the first accused and P.W. 2, from whom he bought the land, but as there were third parties who were also entitled 'to a share in the grass in question, the question of bona fides could not arise. I have no doubt that this is an entire misconception of the principles to be applied to such cases. On that alone I should be satisfied that this conviction could not stand. But here, I have before me all the necessary facts: indeed they are not disputed and am consequently in a position to dispose of the matter. That the first accused claimed a right to a share of this grass there can be no doubt, for he claimed it openly. That P.W. 2 and other sharers meant to prevent him from having any share of that grass is equally clear and admitted. I am satisfied that he went there himself or sent his men to take the grass as being his or rather claiming it as his. It is suggested that he took so much that he could not have been excersing a bona fide claim: but I cannot find that from an examination of the evidence and the findings in this case, in such matters the Court cannot go into niceties of calculation and arithmetic. It has to look at the broad question of whether this was theft, and whether this man was a thief or not? The fact that he took a large amount of grass which under no calculation could be the right amount would be a very cogent thing to consider; but, whether, in taking what he did, he made a proper allowance for the watchman or whether he allowed the right amount in his calculation for the exact number of share-holders considerations of that kind are in my judgment entirely outside the purview of the Court considering this question. In my judgment this case is a case that ought not to have been brought. The parties have got their civil rights. I do not wish it to be understood that I in any way approve of the high handed action of the first and the second accused: but in my judgment it is quite an erroneous view of this case to hold that it is theft.
4. On these grounds this Revision Petition must be allowed, the convictions must be set aside and the fines refunded.