1. In this case a Rule was issued to show cause why the convictions and sentences passed upon the petitioners should not be set aside. They were convicted under Section 379, I.P.C., for cutting and taking away paddy from a certain piece of land. They admitted that they did so, but claimed that as they had grown this paddy they were entitled to remove it.
2. The facts are that the complainant obtained a civil Court decree in respect of this and other lands against a large number of defendants, of whom Ruplal, the father of the petitioners, was defendant 29. The effect of that decision was that it was adjudged that the complainant was entitled to khas possession of this land. Certain of the other defendants appealed. Ruplal did not. The effect of the appeal was that it was decided that the complainant was entitled only to an eight annas undivided share in the land and the rest of his claim was dismissed. It was also ordered that the defendants, who had not appealed including the present accused, were to be treated as not being parties to the appeal.
3. There was a second appeal and this order was upheld by the High Court. It was argued and has been argued very strenuously by Mr. Bhattacharjya on behalf of the Crown that the result of these orders and appeals was that the present petitioners were bound by the original decree declaring that the complainant was entitled to khas possession of these lands and the fact that decree has been set aside upon appeal and it has been decided that the original judgment was incorrect and not according to law, and that the complainant was only entitled to an undivided eight annas share, is not to be taken into consideration in discussing the question whether these defendants are to be treated as criminals and whether the facts show that they had a criminal or dishonest intention to steal. I am unable to accept any such contention, and I am fortified in this view by the decision in Arfan Ali v. Emperor, 1917 Cal 648, where it was held that the removal of property in the assertion of a bona fide claim of right, though unfounded in law and fact, does not constitute theft. That is the exact position of these accused.
4. The learned Sessions Judge, on appeal, found that the appellants had no bona fide claim of right, but he did not find that they did not bona fide believe that they had such a bona fide claim. He went on to say that because in law they had no bona fide claim of right and they deliberately disobeyed the orders of the Court when their remedy lay in the civil Court, therefore they were guilty of theft. I cannot follow the steps of this reasoning on the part of the learned Judge. If all the facts stated by him are accepted, that will not make the accused guilty of theft for the reason that they thought they had a bona fide claim of right and they were asserting it. I am not at all surprised that cultivators, who have been made tenants in circumstances such as these by some of the other defendants to the original suit and have grown paddy on the land, thought that they had a right to cut the paddy and take it away, especially when the original decree, which dispossessed the defendants who let them the land, was set aside by the judgment of the appellate Court which gave the complainant only an eight annas undivided share in the land.
5. In these circumstances in my opinion no case has been made out against the accused and the convictions and sentences must be set aside and the accused acquitted. The petitioners who are on bail will be discharged from their bail bonds. The fine, if already paid, must be refunded to the petitioners.
6. I agree that in the circumstances the petitioners should be acquitted.