1. I agree with learned Counsel for the revision petitioner that, under peculiar circumstances of these two cases, the revision petitioner (Accused i in the Court below) ought not to have been convicted either under Section 379, Indian, Penal Code, or under Section 426, Indian Penal Code. We may take the facts as established that the revision petitioner was the lessee from the municipality for the purpose of collecting the rents due in respect of temporary stalls in the Municipal Market, that the complainant in the lower Court did not pay rent for a temporary projection, and, that this revision petitioner removed certain planks in the projection on the night of 14th May, 1958, in order to compel the complainant to pay the rent, or to enforce his rights. When the complainant wanted the return of the planks, the revision petitioner is alleged to have told him, according to the evidence, that the planks would be returned only when the rent was paid.
2. In these circumstances, the question is whether the revision petitioner had the necessary criminal intention in respect of either offence. The findings of the learned District Magistrate (J.) in paragraph 5 of his judgment are heavily in favour of the revision petitioner. But, having thus upheld the bona fides of the revision petitioner's conduct, the learned Magistrate proceeds to convict him and admonish him under Section 3 of the Madras Probation of Offenders Act, apparently upon the view that the actions of the revision petitioner were highhanded and not strictly justified.
3. The learned District Magistrate (J.) has overlooked the fact that an act may give rise to a claim in damages, or may be a tort or civil wrong, but may not nevertheless constitute any crime. To constitute a crime, the intention required by the criminal law must be established as existing in the particular case. My attention has been drawn to two very interesting decisions, under closely similar circumstances. In Matabbar Shekh v. King Emperor (1909) 14 C.W.N. 936, the Calcutta High Court held that the action of an employee of the Steam Navigation Company is distraining the umbrella of the complainant, who did not pay the fare for a ticket, could not be held to amount to the criminal offence of theft. In a decision of the Patna High Court in Daulat Shaw v. Emperor : AIR1921Pat390 , a forcible removal of certain property in order to realise legal dues, but not with a view to make wrongful gain or to cause wrongful loss, was held not to amount to theft.
4. In the present case, it is clear that the revision petitioner did not have the intention either to cause wrongful loss to the complainant, or to obtain wrongful gain for himself. Similarly he had no criminal intent, as defined in Section 425, Indian Penal Code. His sole intention appears to have been to do something which would compel the complainant to pay him the lawful rent. That might presumably give rise to an action based upon tort or civil wrong, but it constitutes no offence under the Indian Penal Code.
5. The revision is accordingly allowed and the petitioner will be acquitted.