1. This is a reference by the Deputy Commissioner of Sibsagur under Section 438 of the Criminal Procedure Code, questioning the legality of the conviction of one Niohala Katani and three others by Mr. Melitus, Assistant Commissioner of Sibsagur, under Sections 379 and 447 of the Indian Penal Code.
2. The accused in this case were charged with the offence of theft said to have been committed in respect of fish in a tank belonging to the complainant, and also with the offence of criminal trespass.
3. The Assistant Commissioner in the first instance, i.e., on the 1st August last, dismissed the complaint under Section 203 of the Procedure Code with the following observations:
4. Complainant did not cultivate the fish; they entered the tank in flood time. Therefore according to a High Court ruling (in the Meherpore case (1)), they are ferw natures and no man's property, and no offence (such as theft or trespass) has been committed. The circumstances of the tank and of the Chucka Khola Bheel (which I know) are identical, except that the Chucka Bheel is of larger area. This tank is a tank in the father connected with the river by jans and hollows; so is the Chucka Khola Bheel. Complaint dismissed under Section 203 of the Criminal Procedure Code. If complainant wishes, I will refer this case to High Court for orders.
5. On the 12th of August the Assistant Commissioner took up the matter again, although the complainant did not apparently move him to refer the matter to higher Court ; and in a proceeding which he recorded on that day, he repeated that the 'circumstances of the bheel in the Meher-pore case and the tank of the complainant were identical so far as the dominion and control of the owner of the tank or bheel over the fish is concerned,' the only differences being, as ha said, that the Meherpore Bheel is of larger area, and is a natural bheel, whereas the tank in this case is 'partially at least excavated;' and then he observed that 'what-ever law applies to the Chucka Khofa Bheel applies also to this tank and to other private tanks and bheels, and to the numerous public bheels and rivers which are held under emporary fishery leases from Government.' Having made this observation, the Assistant Commissioner said as follows: 'The Meherpore case has not been, so far as I know, authoritatively reported, and I doubt if I was right in accepting mere newspaper reports and the statement of the law, which conflicts with previous rulings and practice, especially as it appears from the newspapers that the High Court held in 1886 (1) in the matter of the same Cbucka Khola Bheel that the offence of theft under Section 379 would have been committed if the fish had actually been removed from the bheel. In the present complaint of Maya Ram Surma, it appears that the fish had not merely been moved in order to the taking, but actually removed and taken away from the tank. The matter is one of such importance to Government and the public that I do not feel justified in allowing this complaint to remain struck off on my own authority. 1 request the favour of the definite instructions for future guidance. To D.C. for orders.'
6. The above proceeding being laid before the Deputy Commissioner, Mr. Wight--the same officer who has made the present reference--he recorded the following order on the 22nd August:
In the present state of the record I am unable to refer the matter to the High Court. The High Court are not the legal advisers of Government, and they have invariably refused to act as such. They only deal with cases and pronounce judgment upon them when they are brought judicially under their notice. You have dismissed the case under Section 203; I think you are wrong. The ruling you refer to is that of a Division Bench, and there are rulings in the opposite sense. Please take up the case and enquire into it. If you acquit on the evidence, or if you convict, the matter would he dealt with and referred to higher authority if necessary. Having power to deal with cases dismissed under Section 203 myself, I am not justified in referring them.
7. Upon the matter going back to the Assistant Commissioner, that officer recorded certain evidence, and on the 8th September last found that the accused entered upon complainant's tank and unlawfully took therefrom some fish, and accordingly held them guilty under Sections 379 and 447 of the Penal Code.
8. In dealing with the case, the Assistant Commissioner makes the following observations: 'The tank was excavated by complainant in the pathar (fields) on his own decennially-settled patta land. It gets its fish supply from the overflow of the pathar; it is connected with the Rararian stream, which is itself connected with the Dhale stream. Both these streams flow from the Naga Hills towards the Brahmaputra. When the inundation is high on the pathar the fish are at liberty to leave the tank unless complainant fences in the tanks or outlets; but when the floods subside the fish are shut in, and unable to leave the tank. On the date of this occurrence the inundation appears to have been high. Such cases have been always dealt with under Sections 447, 379 of the Penal Code. The recent ruling in the Meherpore case, 1887 (2) has thrown some doubt on the applicability of these sections. In this ruling it appears to have been held--(a) that fish entering a bheel or tank in this manner are ferce natura, and not the property of the owner of the bheel, tank, & c.; (b) that they are not in the possession of such owner,'
9. Having made the above observations, the Assistant Commissioner again points out, as he had done on the 1st of August, that the circum stances of the Mohar Bheel and of this tank are identical except in this, that the area of the latter is much smaller, and it is an 'excavated, tank' and not a natural hollow, and adds 'that if the complainant pleased he could at any time confine the fish in a very small space.'
10. The Assistant Commissioner then observes that the 'customary law of the country recognizes that the property in fish vests in the owner of a bheel or tank. If the fish are held to be in the possession of the owner, the offence of taking them amounts to theft under Section 379; if they are hold not to be in possession within the meaning of Section 378, their taking amounts to an offence under Section 403 of the Penal Code (criminal misappropriation). The High Court have apparently never considered the applicability of this section. The entry upon the tank to commit either of these offences amounts to criminal trespass under Section 447.'
11. He then says that the High Court in the Meherpore, case of 1886 15 C. 392 held 'that the offence of theft would have been committed in the Chuka Khola Bheel if the fish had actually been moved,' and that moreover it appears to him upon the principles laid down the case of The Empress v. Chant Nayiah 2 C. 354 that it would be 'criminal trespass to enter upon a private tank or river to unlawfully take fish,' and he concludes by saying as follows: 'Following these two rulings in preference to the Meherpore ruling, 1887 (3). I convict accused under Sections 447, 379 of the Penal Code.'
12. Subsequently on the 12th September the accused persons presented a petition to the Assistant Commissioner, asking him to refer the case to the High Court, and Mr. Melitus forwarded the application to the Deputy Commissioner.
13. The Deputy Commissioner, Mr. Wight, who had on the 22nd August held that the Assistant Commissioner was wrong to dismiss the complaint under Section 203, and had observed that the ruling in the Meherpore case was that of 'a Division Bench, and that there were rulings in the opposite sense,' now observes that 'the evidence, even if believed, does not establish the offence of theft or criminal trespass if the recent ruling in the Meherpore case be correctly reported;' and 'as the lower Court has based its decision on a wrong view of the law, the order should be reversed,' and he concludes by saying that the point referred is 'of the greatest importance to the public and to Government, and it is very necessary to have the correctness of the present order either affirmed or denied.'
14. No doubt the question raised is of very great importance; but looking at the course this case has taken as noticed above, one cannot help observing that both the Assistant Commissioner and the Deputy Commissioner assumed almost from the very beginning an attitude towards the decision of this Court in the Meherpore case of 1887 (3), which cannot but be disapproved.
15. If properly examined, it will be seen that the ruling in that case does not conflict with the decision of this Court in 1886, nor with that in the case of The Empress v. Charu Nayiah 2 C. 354. The Assistant Commissioner has evidently not taken pains to examine the cases, and yet he says he follows these two latter rulings 'in preference to the Meherpore ruling in 1887 (2).'
16. In the Meherpore case of 1886 (3) the questions that were raised and discussed before this Court in 1887 were not raised, and indeed it was wholly unnecessary to consider them. What this Court in 1886 held was simply this, that the conviction for theft could not be sustained, because the fish had not been moved away. It did not hold, as the Assistant Commissioner supposes, 'that the offence of theft would have been committed if the fish had actually been moved.' In the other case referred to, viz, The Empress v. Charu Nayiah 2 C. 354 the only question before this Court was whether the charge of criminal trespass could be maintained against a person, who had entered upon a public river and fished in it, and the Court held that it could not be maintained, because the owner of the fishery was not in exclusive possession of the river, it being a public one. No question was then raised or discussed as to the circumstances under which a person would be guilty of criminal trespass if he entered upon a private tank or river.
17. Turning now to the case before us, it appears upon the facts found by the Assistant Commissioner that the tank is an artificial piece of water, and of comparatively small dimensions ; it is not a natural reservoir of water, and there is no assertion of any customary right to fish in this tank, as was found to exist in the Meherpore case of 1887 by the Magistrate, and upon which finding this Court held that there could be no dishonest taking of the fish when the accused went to fish relying upon that custom; and in this view of the matter the facts of this case are clearly distinguishable from those in the Meherpore case, and we should have been quite prepared to affirm the conviction in this case had it appeared that the fish had been at the time of occurrence in the possession' of the owner of the tank--that is to say, if they had been restrained of their natural liberty, and liable to be taken, according to the pleasure of the owner, or, in other words, if they had been practically in the power and dominion of the owner of the tank. (See Russel on Crimes and Misdemeanours, Vol. II, p. 376). But upon the facts as found by the Assistant Magistrate, and which have been quoted above, it seems to be clear that they were not so. The tank was evidently not enclosed and shut up on all sides; the fish were not reared and preserved therein, but found their way there through the overflow of the neighbouring channel, which was connected with other flowing streams; and on the date of the occurrence the inundation was high, and the fish were at perfect liberty to leave the tank. This being the state of things, the fish were fera natur, and were not in the power and dominion of the owner of the tank ; and the case would therefore fall within the principle laid down in The Queen v. Revu Pothadu 5 M. 390 and Rex v. Carradice R.&.R.C.C. 205 For these reasons we are of opinion that the conviction for the offence of theft cannot stand.
18. Nor can it stand for the other offence of which the Assistant Commissioner has found the accused guilty, viz., the offence of criminal trespass. If the fish were fera, naturae, and not in the power and dominion of the owner of the tank, there is nothing to show in this case that the accused entered upon the tank with the intent of committing any offence under the Penal Code or for the purpose of intimidating, annoying or inslting the owner of the tank. It was indeed an act of trespass on the part of the accused to enter upon the private of the complainant, but it was not 'criminal trespass' within the meaning of Section 447. The Assistant Commissioner has however specially referred to Section 403, and he maintains that the accused entered upon the tank for the purpose of committing the offence of criminal misappropriation, and that the applicability of this section was never considered by the High Court. It is not necessary here to state the reason why we do not consider that there could be no offence under Section 403, for we have done so in our decision in another case-Bhagiram Dom v. Abar Dome 15 C. 388-tried by Mr. Melitus and referred to us by Mr. Wight.
19. We are therefore of opinion that the conviction in this case is bad in law and must be set aside. The fine if paid to be refunded.