Lancelot Sanderson, C.J. and Beachcroft, J.
1. This was a Rule directed to the District Magistrate to show cause why the conviction of and the sentence passed on the petitioners should not be set aside on grounds Nos. 1 and 3 mentioned in the petition. Those grounds were as follows : '1. For that the conviction under Section 379, Indian Penal Code, is bad in law and not sustainable on the facts and circumstances proved in the case 3. For that the petitioners having acted bona fide in the exercise of their civil rights, the conviction is bad in law.'
2. Both the petitioners were convicted under Section 379, the allegation being that they cut and stole some ripe paddy which had been grown on 5 or 6 bighas of land which were in the possession of the complainant, one Atul Krishna Bose.
3. The facts of the case may be shortly stated as follows : One Aswini Kumar Palit went into possession of the land in question in 1906: the complainant Atul Krishna Bose obtained a decree for possession against Aswini Kumar Palit : and, it is found by the learned Magistrate that he obtained actual possession of the land on the 20th of September 1917.
4. Of the two petitioners the first was the Naib of the Zemindar of Saidpur who was the Malik of Aswini. The second, Sham Sardar, was a cultivator, and it was alleged on behalf of the petitioners that he was cultivating the land in question upon the bhag system, that is, the system by which the tenant and the cultivator divide equally the produce of the land between them. It was alleged by the petitioners that before the execution of the decree and before the complainant had obtained possession of the land Sham Sardar, the cultivator, grew the paddy and that he was entitled to reap the crop inspite of the decree.
5. There is no doubt that the two petitioners and some others did in fact reap the paddy on the 14th of December 1917: and, I think, I am right in saying that it was removed in a boat to the premises of Abinash. The learned Magistrate said that the points which in his opinion arose for determination were as follows:
(1) Whether the land and the paddy in question were in possession of the complainant at the time of the occurrence; (2) whether accused Abinash got the paddy out and taken away by Sharn and others, (3) whether the ingenious defence set up in writing by accused Sham was of any help to the accused in this case, (4) whether in the circumstances the accused are guilty under Section 379, Indian Penal Code.
6. The material findings at which the learned Magistrate arrived were as follows: He first of all found that it was clear that the accused Abinash got the paddy of the land cut by the accused Sham Sardar and others and taken to Abinash's boat, which was waiting 10 or 12 cubits from the land in question at the time of the occurrence. He has also found that the complainant actually took possession of the land on the 20th of September 1917. He then went on to find that the first petitioner, being only a Naib, dared to disregard and slight the authority of the Civil Court even when reminded that the complainant got the land, and necessarily the standing crop, under orders of the Civil Court. That was the contention put forward by the prosecution, which the learned Magistrate adopted, He said: 'I accept the view advanced by the prosecution and I hold that accused Sham and others out and took away the paddy from the complainant's possession in the immediate presence and under orders of accused Abinash.' Then he dealt with the question as to the growing of the paddy, and he held that the petitioner Sham Sardar did not grow the paddy but that Aswini had grown it. He said: 'I do not believe that accused Sham grew the paddy in question in bhag under Aswini and 1 reject the inconsistent defence evidence on the point as unreliable.' And, finally he found that there was no bona fide dispute but that it was insolent zubberdusti and done in disregard of the Civil Court's authority; then he found that the taking of the paddy was dishonest because it caused wrongful loss to the complainant and wrongful gain to the petitioner.
7. Now, my learned brother and 1 having taken time to consider this case have come to the conclusion that upon those findings it must be taken that the paddy was grown by Aswini and that at the time he grew it he must be taken to have been a trespasser on the land: he lost possession of the land in September 1917, and the complainant obtained actual possession of the -land and was in actual possession from that time. Aswini did not remove the crops before he was put out of possession. 'Whether he would have had a right so to do, it is not material for us to consider, but we are of opinion that he having been a trespasser upon the I land at the time the paddy was grown, he had no right to go upon the land after the complainant had obtained possession and removed the paddy. Consequently in December 1917 when this paddy was removed, Abinash had no right to remove it and there was no bona fide dispute.
8. It was found by the learned Magistrate that the first petitioner espoused the cause of Aswini, disregarded the Civil Court's decree and went upon the land: and under his orders the second petitioner and other people removed this paddy.
9. Under those circumstances we think that the conviction of both the petitioners must be upheld, and we see no reason for. interfering with the sentence, so far as the first petitioner Abinash Chandra Sarkar is concerned.
10. With regard to the second petitioner Sham Sardar, we think, having regard to the findings of facts of the learned Magistrate that this man was acting under the orders of Abinash, the Naib, and was not the only one who was acting under the orders of the Naib, the sentence which was passed upon him of three months' rigorous imprisonment may be reduced: and inasmuch as Mr. Mukherjee informs us that Sham has already served three weeks of his sentence we think that he may be immediately released. The other petitioner Abinash Chandra Sarkar must surrender to his bail, if he is on bail.