ORDER
P.K. Tripathy, J.
1. Heard learned counsellor the petitioner. Opposite party did not appear in spite of service of notice. On being requested, Sri R.R. Patnaik, a learned counsel of this Court addresses this Court as amicas curiae.
2. Petitioners, after being convicted by the J.M.F.C., Kendrapara in I.C.C. Case No. 112 of 1989/T.R.No. 31 of 1993 for the offences Under Sections 447 and 379, I.P.C. and having failed to obtain order of acquittal from the Court of Additional Sessions Judge, Kendrapara in Criminal Appeal No. 109/25 of 1993, have preferred this revision, challenging the judgment and order of conviction recorded by the Courts below.
3. The opposite party/complainant claiming to be in possession of plot No. 501 of Khata No. 258 in Mouza Ganeshpur measuring an area of A0.22 decimals alleged that on 25.4.1989 in the morning at 7 a.m., the petitioners trespassed into that plot and uprooted and removed the green gram crop grown by the opposite party. After considering the materials on record charge Under Sections 447 and 379, I.P.C. was framed against the petitioners. They denied to the allegations and claimed for trial.
4. During the course of trial, opposite party examined three witnesses including himself as P.W. 2. He also relied upon the Registered sale deeds (Exts. 1 and 5), the draft record of rights (Exts. 2 and .3) and rent receipts (Exts. 4 to 4/e). Petitioner Nos. 1 to 3 in their defence advanced the plea of bona fide right of title and possession over the disputed case land and the other petitioners who were the engaged labourers denied to the right of the opposite party over the disputed case land and also denied about happening of the occurrence. In support of the defence, in the trial Court, petitioners relied upon the evidence of petitioner No. 1 as D.W. 1. In addition to that they also relied upon the Sabik R.O.R. (Ext. A) and rent receipts of the years 1990 and 1992 vide Exts. B to B/3. In the Criminal Appeal, petitioners further relied upon the decisions of the Consolidation Authorities which were marked as Ext. C to Ext. E.
5. On assessment of the evidence adduced by the parties, the trial Court recorded the finding that the opposite party proved his possession over the case land and that he had grown that green gram crop which were uprooted and removed by the petitioners. He did not accept the plea of bona fide right, on the ground that the defence evidence is not sufficient to prove their possession over the case land by the date of occurrence. Accordingly, he disbelieved the defence version and convicted the petitioners. For the offence Under Section 447, I.P.C., he sentenced the petitioners to undergo S.I. for three months and for the offence Under Section 379, I.P.C., he sentenced the petitioners to undergo S.I. for one month. In that context, it may be noted that the trial Court refused to grant the benefit of Probation of Offenders Act on the ground that petitioners by showing highhandedness removed the crop.
6. Learned Additional Sessions Judge after considering the evidence as noted above and also the further documents vide Exts. C to E (filed in that Court) recorded the same finding and confirmed the impugned judgment of the trial Court. Learned Additional Sessions Judge has categorically recorded the finding that the defence plea advanced by the petitioners regarding bona fide right of possession over the case land has not been proved by them and in that regard the documents filed by them relate to post occurrence period.
7. Learned counsel for the petitioners referring to the evidence on record, and more particularly Exts. C and E argues that the Consolidation Authorities have decided to record 2/3rd interest over the disputed land in favour of the petitioners 1 to 3, therefore, their claim of right of possession over the disputed land should not have been regarded as a pretext and their defence plea should not have been rejected. Under such circumstance he argues, if not a clean acquittal, at least, benefit of doubt should have been granted in favour of the petitioners. For that he relies on the case of Chandi Kumar Das Karmakar and Anr. v. Abanidhar Roy, AIR 1965 SC 585, Mr. Patnaik, who addresses the Court as antic us curiae, states that the aforesaid documents (Exts. C to E) recognise the right and title of the petitioners in 1993 and if the rent receipts shall be accepted on their face value regarding possession then such documents prima facie prove possession in 1990 and 1992. Therefore, the rights created by such documents (orders) does not rectify their action in 1989 when as alleged and proved they forcibly entered into the case land and removed the green grams raised by the opposite party. He further states that the appellate Court after properly judging the aforesaid circumstances rejected the contentions advanced by the petitioners.
8. In case of Chandi Kumar (supra) it was a case of theft of fish from a tank by the appellants. It was the undisputed fact that in the Parcha, the appellants with three others were shown as tenants i.e. “settled raiyot Mukurari”. The complainant/respondent claimed possession and rearing of fry on the basis of a ‘bhag settlement’ for five years with one Sailesh Chandra Banerjee who had obtained an ex pane decree for the disputed pond in December, 1954 and took delivery of possession in February, 1955 but such ex pane decree was set aside in July, 1955 on the ground of suppression of the notice from the defendants. The apex Court thus found that “there was a dispute between the parties which had not till then be decided by the Civil Court goes without saying. The facts do show that the decree was obtained by unfair means and the possession was tainted by fraud.” With the above background facts the apex Court considered the plea of bona fide claim of right, which was one of the defence plea of the appellants. The apex Court stated that in the absence of the ‘animus furandi’ (the intention of stealing) the offence of theft is not complete. In the context of ‘animus furandi vis-a-vis bona fide claim of right in good faith the apex Court held that :
“5. Now the ordinary rule that mens rea may exist even with an honest ignorance of law is sometimes not sufficient for theft. A claim of right in good faith, if reasonable, saves the act of taking from being theft and where such a plea is raised by the accused it is mainly a question of fact whether such relief exists or not. This Court in Criminal Appeal No. 31 of 1961, D/5.10.1961, S. Sanyasi Apparao v. Boddepalli Lakshminarayana, 1962 (Supp) 1 SCR 8 : (AIR 1962 SC 586) observed as follows :
“It is settled law that where a bona fide claim of right exists, it can be a good defence to a prosecution for theft. An act does not amount to theft, unless there be not only no legal right but no appearance or colour of a legal right.”
By the expression “colour of a legal right” is meant not a false pretence but a fair pretence, not a complete absence of a claim but a bona fide claim, however weak. This Court observed in the same case that the law was stated in 2 East PC 659 to be :
“If there be in the prisoner any fair pretence of property or right, or if it be brought into doubt at all, the Court will direct an acquittal.”
and referred to / Hale PC 509 that “the best evidence is that the goods were taken quite openly”. The law stated by East and Hale has always been the law on the subject of theft in India and numerous cases decided by Indian Courts are to be found in which these principles have been applied.
“6. Niyogi, J. in his judgment also referred to some of the decisions of the Calcutta High Court and we find ourselves in particular agreement with the following statement of the law in Hamid Ali Bepari v. Emperor, ILR 52 Cal. 1015 (AIR 1926 Cal. 148) :
“It is not theft if a person, acting under a mistaken notion of law and believing that certain property is his and that he has the right to take the same….. removes such property from the possession of another.”
9. In the case at hand the evidence adduced by the opposite party shows that his father was the bonafide purchaser of the whole of the case land. The oral and documentary evidence adduced by the opposite party was assessed and accepted by the Courts below concurrently that he was in possession of the case land and had grown the crop which was removed by the petitioners. When that became the position, undoubtedly the onus shifted to the petitioners to adduce evidence in proof of the claim of bona fide right. In that respect the oral evidence of the accused/petitioner No. 1, who was examined, as D.W. No. 1, is next to nothing because he has not stated in his evidence that, he or any of the petitioners had grown the green gram crop or that the opposite party had not grown the same. The record of right (Ext. A) was published in 1930 in the name the ancestor of the petitioners. The Exts. 1 and 5 (sale deeds) sufficiently rebut the presumption of possession arising from Ext. A. The rent receipts Exts. B to B/3 relates to the year 1990 and 1992. Those documents, in no way raise presumption regarding possession of the case land or portion thereof by the petitioners in the year 1 989. The judgment dated 12.10.1993 in Consolidation Revision No. 88 of 1991 by the Director of Consolidation (Ext. C) only recognises title of the petitioners, in that revision, to the extent of 2/3rd share. In that judgment also no finding was recorded if any of the petitioners (1 to 3) were in possession of the case land. Ext. E is an order to correct the record as a consequence of the judgment vide Ext. C. Thus, in the present case, though the petitioners have advanced the plea of bona fide claim of right over the case land but such plea does not absolve them from criminal liability for removing the crop when they have failed to prove either that they had grown the crops or that the opposite party had not possessed or grown the said crop. Factum of possession being of paramount importance in a case of the present nature, the defence plea was rightly rejected when factually petitioners did not prove their possession over the case land in the year of dispute i.e. 1989. In view of that the above quoted ratio of the apex Court does not help the petitioners.
10. Learned counsel for the petitioners, alternatively, argues that no material is placed on record to show any criminal antecedent of the petitioners and notwithstanding that the trial Court unreasonably refused to apply the provisions of the Probation of Offenders Act and in that respect learned Additional Sessions Judge did not pass any order. He further submits that keeping in view the above contention and the fact that the occurrence took place about eleven years back, petitioners, at this stage, may be granted the benefit of the provisions in Probation of Offenders Act.
11. In that connection, on a reference to Sections 3 and 4 of the Probation of Offenders Act, 1939, this Court finds that in the present case the benefit of Section 3 of the Probation of Offenders Act should be granted in favour of the petitioners because at this stage asking them to be released on executing bonds will be an unnecessary exercise. Since the petitioners are not available to this Court, therefore, it is directed that the petitioners shall appear before the J.M.F.C., Kendrapara on 12th March, 2000, when learned J.M.F.C. shall admonish them in accordance with provision of Section 3. In that event, petitioners need not be sent to jail. However, if the petitioners shall not appear on that date to receive the admonition then this>order releasing them Under Section 3 of the Probation of Offenders Act will be treated as non est and the petitioners shall serve the sentence which has been awarded by the trial Court. The aforesaid date is fixed on consent of learned counsel for the petitioners and hence the petitioners need not be noticed to receive the admonition, and the date of appearance shall not be extended any further.
12. The Criminal Revision is dismissed with the aforesaid observation and modification in sentence. Registry is directed to send back the L.C.R. along with a copy of this order to the Courts below forthwith.