1. A rule has been granted to consider whether the conviction and sentence passed on the petitioner in a summary trial for theft should not be set aside. The sole question for consideration is whether the Magistrate has found facts constituting theft, or whether the petitioner is not guilty of that offence because he cut and carried off the crop, under a bond fide belief that he was entitled to it, that is to say, whether he acted dishonestly within the terms of Section 24 of the Penal Code.
2. The Magistrate has found that the complainant was in actual possession of the disputed land, and that the crops which stood on the same were grown by the bargadars.” He adds: And the accused was by no means justified in cutting them away. The mere setting up of a claim to the land which has not been clearly proved by reliable evidence is not sufficient to exonerate him from the liability of theft.” I understand from this that the Magistrate has found that the claim is not bona fide because he has not proved it to be so by reliable evidence to rebut the finding that the crop was grown by the complainant. I do not understand that he has tried or attempted to try any question of title. He had previously found possession with the complainant. If his bargadars had grown the crops as found and nevertheless the accused cut and carried them off there could, in my opinion, be no bond fide belief that he was entitled to do so to justify his action in regard to the complaint, the cutting and removing of the crop grown by another, whatever may be the claim in respect of title set up by the accused.
3. I think that we are bound to discourage such acts which amount to the taking of the law into his own hands by a person, who being out of possession, is bound to establish his title in the proper way, that is in the Civil Court.
4. The Magistrate then proceeds thus: There has apparently been a dispute of boundary between the two zemindars. I mean the zemindar of the complainant and the accused, and the accused appears to have taken advantage of the same and attempted to dispossess the complainant from the land in the manner alleged by the prosecution.” By this I understand that possession being with the complainant the accused has attempted to interfere with it by this boundary dispute. With the fact found that possession was with the complainant by the growing by him of the crops cut by the accused, the accused was without the shadow of a justification in thus taking the law into his hands–even if he was entitled to hold the lands–because he was not in actual possession of them. I would not interfere.
5. In this case Pandita Pramanik has been convicted in a summary trial by the Deputy Magistrate of Bogra of the theft of paddy under Section 379 of the Indian Penal Code, and sentenced to two months’ rigorous imprisonment. It appears that a long-standing boundary dispute existed between two zemindars of adjoining estates, and the plot of land on and from which the paddy was cut and removed was claimed by either zemindar. The accused alleged and claimed that the paddy in question was grown upon his jote and his case is that it was cut and removed as a matter of right and in assertion of a bond fide claim to the land. The complainant admits that there has been a boundary dispute between his landlord and the landlords of the accused, as do also his witnesses. Johar Mamood Pramanik and Bocha Beparis also both depose to their knowledge of the disputed plots. For the defence Dhona Pramanik deposed that “the disputed land has been in accused’s possession since the time of his forefathers,” and that “both the plots belong to accused,” and “that accused grew crops on them and reaped them this year.” Masiruddin Pramanik deposed that “the disputed paddy and jote plots belong to Pandita Pramanik (the accused), and that he saw the accused grow and reap crops off them.” To the same effect is the evidence of Nozi Akundo. It being clear from the evidence that the land from which the paddy was removed was in dispute between the parties, it appears to me that unless the Deputy Magistrate was satisfied that the claim of the accused was not bond fide he ought not to have adjudicated upon the question of title, much less to have convicted the accused. Instead of leaving the complainant to his civil remedy, the Deputy Magistrate investigated the title to the land and had both oral and documentary evidence produced. He appears to consider that in a case like the present one unless a claimant to land can clearly prove his title by reliable evidence a bond fide claim will not avail him if he be charged with theft. In his judgment he says: “The mere setting up of a claim to the land which has not been clearly proved by reliable evidence is not sufficient to exonerate him (the accused) from the liability of theft.”
6. In this the learned Deputy Magistrate was in my opinion entirely in error. He has not ventured to find that there was any dishonest intention on the part of the accused in reaping the paddy. A dishonest intent is a necessary ingredient in the offence of theft. The evidence as well for the prosecution as for the defence conclusively, as it appears to me, establishes that there was a bond fide dispute as to the title to the land upon which the paddy was sown. Once this was shown the criminal charge in my opinion failed. The fact, if it be the fact, that the paddy was sown by the complainant would not give him the property in the crop, if it was sown on the land of the accused. If the land was the land of the accused it was an act of trespass on the part of the complainant to sow it with paddy, and the complainant has no right to complain if the accused resented his act of aggression by cutting and removing the crops.
7. For the foregoing reasons I am of opinion that the conviction and sentence ought to be set aside.
8. This is an application for revision under Section 439 of the Code of Criminal Procedure. The learned Judges who composed the Court of Revision before which the case came for hearing were equally divided in opinion, and it has therefore been referred to me for disposal in accordance with the provisions of that section read with Section 429 of the Code.
9. The applicant has been convicted of theft under Section 379 of the Indian Penal Code. The case against him is that taking advantage of a boundary dispute that had arisen between his zemindars and the zemindar of the complainant he went with a large body of men to the complainant’s land and cut the crops which the complainant had raised. The defence was that the land in question was a part of the applicant’s holding and that the crops upon it had been raised, not by the complainant, but by the applicant. The Deputy Magistrate who tried the case was satisfied, as he says, by “both oral and documentary evidence” that in fact the land was in the possession of the complainant and that the crops had been raised by his bargadars. He held that the applicant was “by no means justified” in cutting the crops and he accordingly convicted him of theft.
10. The question is whether there is a sufficient finding of dishonest intention on the part of the applicant to support the conviction.
11. It has been urged before me for the applicant,–and the same view commended itself to one of the learned Judges who originally heard the case–that the Deputy Magistrate has in fact arrogated to himself the functions of a Civil Court and adjudicated upon the question of title much as a Civil Court might have done instead of limiting his decision on that point to the question whether or not the claim set up by the applicant was a bond fide claim.
12. There is one sentence in the judgment: which, if it stood alone, would no doubt go to support this view. The Deputy Magistrate says: “The mere setting up of a claim, which has not bean clearly proved by reliable evidence, is not sufficient to exonerate him from the liability of theft.” I think, however, that the judgment must be taken as a whole and with reference to the case set up by each party. The complainant’s case was one of long possession on his part as a tenant, actual cultivation of the crops on his behalf by his bargadars, and removal of those crops by the applicant in force. The case set up by the applicant was long possession by himself as tenant under another person, actual cultivation of the crops and reaping them as a matter of right. It is obvious that of these two cases one must be essentially false, if the other is true. The Deputy Magistrate found the case of the complainant to be true on the evidence, oral and documentary, before him and the view which he took was that the applicant had taken advantage of the fact that a boundary dispute existed between the two sets of zemindars under whom the parties respectively claim, in order to make an attempt to dispossess the complainant. It appears to me that these findings, taken as a whole, amount in truth to a finding that the applicant acted mala fide, and I do not think that the mere fact that he brought some witnesses to speak to his long possession of the land and the cultivation of the crops by him can be taken as showing that a bond fide dispute as to title existed between the complainant and himself. The evidence of the one set of witnesses or of the other must be untrue, and the Deputy Magistrate had to decide which of the two sets was to be believed.
13. Very high ground has been taken in the argument before me on behalf of the applicant. I understand the learned vakil to have gone so far as to contend that assuming the complainant to have been in long possession of the land and to have raised the crops, yet, if the applicant thought that he himself had any title in the land, he did not commit theft, because the complainant would have no right to sow crops on land which did not belong to him.
14. In the first place it seems to me that in order to judge of the bond fides of the applicant’s claim, we must take it as he himself sets it forth, and that it would be going rather far, when it is found to be false as regards the possession of the land and the raising of the crops, to assume that it is honest as regards the title. Further I would refer to the case of Queen-Empress v. Gangaram Santaram (1884) I.L.R., 9 Bom., 135, in which it is laid down that to constitute theft, it is sufficient if property is removed, against his wish, from the custody of a person who has an apparent title or even a colour of right to such property. In the present case the complainant had an apparent title as tenant of the land together with long possession, and he had on the strength of that apparent title and long possession raised the crops which the applicant removed.
15. On the whole I think that the findings of the Deputy Magistrate are sufficient to sustain the conviction, and that this application should be dismissed. The application is dismissed accordingly.