1. This Rule is directed against the conviction of the petitioner under Section 3 of the Private Fisheries Act II of 1889. It has been found and it apparently is not disputed that the petitioner did, as a matter of fact, fish in a a certain fishery spoken of as river Jaldiar. But the essential question in the case was whether this river Jaldiar appertained to a certain khas mahal spoken of as Banihala or whether it appertained to the adjoining mouzah belonging to certain Chowdhuries of Sherpur, in other words, the question really was where should the boundary line between these two properties be drawn. We are of opinion that the question of the true boundary in the first place, and in the second place the question of the bona fides of this petitioner, who, it appears, was acting under certain ijaradars who had obtained a lease from, the Chowdhuries of Sherpur, have not been properly investigated.
2. In the first place the Deputy Magistrate says that the parcha, which has been produced, proves conclusively that the river Jaldiar appertains to the khas mahal. We are informed that this parcha is an extract from or part of a Record of Rights prepared under the provisions of Chapter X of the Bengal Tenancy Act. In that case it would seem that it at most raises a presumption in favour of the complainant who is an ijaradar under the Government. But the presumption thus raised may be rebutted. Now, in order to rebut that presumption the petitioner and those who were supporting him in this trial produced a certified or attested copy of a rubakari issued by the Court of the Commissioner of Dacca on the 20th April 1854. From this it would seem that this question as to the boundary between the Government khas mahal and the petitioner's Taluk Pagla was adjudicated in 1854 and in preceding years. It further appears from the same rubakari that by an order of a Deputy Collector the Jola was released or removed from the possession of the khas mahal authorities and that this order having been set aside by the Collector of the day, the Collector's order again was reversed by the Commissioner and as it would seem the order of the Deputy Collector restored.
3. It is not for us here to say without further enquiry what exact value is to be attributed to this rubakari. But it is quite clear that the Magistrate's order, holding that this document is inadmissible in evidence on the ground that only a certified copy and not the original order was produced, is wrong. It may be that if this order is to be taken as one definitely fixing the boundary between the two mohals and if on evidence it can be shown that the Jaldiar referred to in that rubakari is identical with the Jaldiar now in question, and if no proceedings have been taken on the part of the Revenue Authorities to have the order of the Commissioner rectified and the Jaldiar again included within the khas mehal, it may be that it will be extremely difficult to say that the petitioner in the present case was not acting in good faith. Obviously these are questions that should have been investigated and possession since the date of the Commissioner's rubakari should also have been enquired into. In this view it is clear that there has been no satisfactory trial of the questions at issue in this ease, and we must consequently set aside the conviction and sentence.
4. The only remaining question is whether there should be a retrial of this petitioner. Now, it is clear, or at least from the papers put before us it appears to be clear, that this petitioner who is merely a fisherman is acting under the authority and at the instigation of the Zemindars of Sherpur and their ijaradars. So long then as the Crown or the present complainant does not feel himself in a position to take proceedings against these persons, we do not think that it is advisable to direct a further prosecution of the present petitioner.
5. We, therefore, make this Rule absolute and set aside the conviction and the sentence imposed upon the petitioner.
6. The fine, if paid, will be refunded.