Patna High Court
Shaikh Abdul And Anr. vs Emperor on 18 December, 1928
Equivalent citations: 115IND. CAS.684, AIR 1929 PATNA 86
JUDGMENT Fazl Ali, J.
1. The petitioners have been convicted under Sections 144 and 370 of the Indian Penal Code and sentenced to rigorous imprisonment for three months and a fine of Rs. 100 each.
2. The facts of the case are briefly these:
3. There is a holding in village Harpur Kalan in the District of Purnea which was accorded in the name of two persons, namely, Maharaj and Nabu. Maharaj died leaving a minor son Bacha Das. After the death of Maharaj, Nabu sold the lands of the holding to one Panchu Bhagat on the 19th July, 1913, and in executing the sale-deed he professed to act both for himself and also as guardian of Bacha Das, the minor son of Maharaj. On the 20th February, 1920, Panchu Bhagat sold the lands to Baljit and Daroga Singh by means of a registered sale-deed. In November, 1927, Sheikh Abdul, one of the petitioners, took a sale-deed from Bacha Das in respect of his share in the lands in question. The case for the prosecution before the trial Court was that the entire holding was in possession of Panchu Bhagat since Nabu conveyed it to him and that Baljit Singh and Daroga Singh were in possession of the land since the 20th February, 1920, when Panchu transferred them to the latter. It is also said that Baljit and Daroga had settled the lands with Govind Tatwa as bataidar who had grown the disputed crops. The version of the prosecution as to the occurrence was that on the 23rd March, 1928, the petitioners along with a number of other persons went to some of the plots appertaining to the holding and forcibly removed the crops which were standing on them.
4. The defence was that there was no occurrence as alleged by the prosecution and that the crops had been peacefully harvested an behalf of Abdul who had grown them after having taken the sale-deed from Bacha Das.
5. The trial Court as well as the lower Appellate Court came to the findings that the lands in question were in possession of Baljit and Daroga through their bataidar, that the crops had been grown by thehataidar and not by Abdul, and that the story of the occurrence as put forward on behalf of the prosecution was true. On these findings the petitioners have been convicted for being members of an unlawful assembly with the common object of "looting the wheat and khesari crop of Daroga Singh and Baljit Singh" and also under Section 379 of the Indian Penal Code.
6. The petitioners have now moved this Court in revision and the principal point raised on their behalf is that as Bacha Das was entitled to a share in the lands and as Abdul had taken a conveyance from Bacha Das of his share no offence was committed by him by removing the crops from the land which was included in the sale-deed. Mr. Nandkeolyar, who appears for the petitioners, has argued with great earnestness that even conceding that the lands had been in possession of Daroga Singh and Baljit Singh since the year 1920 and that the crops which are the subject-matter of dispute in this case were grown by their bataidar to the knowledge of the petitioners, the petitioners have committed no offence under Section 379 of the Indian Penal Code by removing the crops, because having regard to the circumstances of the case it cannot be said that they were acting dishonestly. It is contended that the mere fact that the petitioners have taken a conveyance from a person who had some interest in the land is sufficient to protect the petitioners in a criminal prosecution and it must be held that the petitioners were not acting dishonestly in the sense the term has been used in the Indian Penal Code but were acting merely in the assertion of a bona fide claim of right.
7. Now, it is no doubt a well-settled principle of law that if property is taken under a bona fide claim of right, it will not amount to an offence under Section 379 of the Indian Penal Code. It has also been held that if the accused removes the property honestly believing it to be his he cannot be convicted of theft, even though his claim may be ill-founded in law or in fact. The principle has been discussed and enunciated in the case of Suraj Ali v. Arfan Ali 36 Ind. Cas. 136 : 44 C. 66 : 20 C.W.N. 1270 : 17 Cr. L.J. 456 by Sir Ashutosh Mookerjee with the fullness and lucidity which characterize all his decisions. It has also beep recognized and acted upon in a number of decisions given by this Court: see Bodh Kishen Goala v. Emperor 72 Ind. Cas. 614 : 4 P.L.T. 608 : 24 Cr. L.J. 454 : A.I.R. 1924 Pat. 125 Bhim Bahadur Singh v. Emperor 55 Ind. Cas. 854 : 1 P.L.T. 121 : 2 U.P.L.R. (Pat.) 53 : 21 Cr. L.J. 374; (1922) Pat. 10 : A.I.R. 1922 Pat. 265, Sadasiv Singh v. Emperor 39 Ind. Cas. 475 : 1 P.L.W. 155; (1918) Pat. 47 : 18 Cr. L.J. 507, Talebar Choudhury v. Emperor 40 Ind. Cas. 750 : 2 P.L.W. 49 : 18 Cr. L.J. 750 and Sardar Singh v. Emperor 44 Ind. Cas.451 : 4 P.L.W. 291 : 19 Cr. L.J. 339. It must, however, be remembered that the claim put forward by the accused must be an honest one and it will be of no avail to him as a defence if it is found to be a mere colourable pretence to obtain and keep possession of the property. It follows that the Court will have in each case to come to a finding as to whether the claim advanced by the accused is an honest one or a mere pretence. There is no doubt that the decision on this point will depend in each case on the circumstances of that particular case, but it may be safely laid down as a general proposition that in cases where the alleged theft consists in the removal of crops grown on land, the most vital question to be investigated is as to which of the parties had grown the crops and that a decision on this point will in the majority of cases enable the Court to come to a definite conclusion as to whether the claim of the accused is made in good faith or is a mere pretence. I must, however, take care to say that I do not wish to lay it down (sic) a universal rule that in every case where A removes crops grown by B, A necessarily commits an offence under Section 379 of the Indian Penal Code. To mention a few instances only to show that the rule is not without exceptions: A may be an auction-purchaser of the land and he may have purchased the land with the crops; or B may have stealthily sown the crops in the land which belongs to A and is in his possession. Or it may be, as often happens in the case of diara fields where vast tracts of land are cultivated by various tenants with identical crops and the boundary marks are not so distinct as in the case of ordinary lands, that a tenant may honestly believe that he has grown the crops over a certain area, while, as a matter of fact, the crops have been grown by another person holding the adjoining land. In such cases also no theft will be committed by the removal of the crops, provided that the Court can come to a finding that the person who removed the crops actually believed that he had grown them. Then again, as was held in the case of Hari Bhuimali v. Emperor 9 C.W.N. 974 : 2 Cr. L.J. 836 a servant or a labourer cannot be held guilty of the offence of theft when he removes the crops at his master's bidding unless it is shown that he participates in the master's knowledge of the dishonest nature of the act. I have mentioned this case because it was referred to by the learned Counsel in the course of his arguments and the learned Counsel laid particular stress on the following passage which occurs in the judgment of Woodroffe, J.:
In criminal law what is generally understood by theft and its kindred offences are such acts as those of the pick-pocket, the shop-lifter, the house-breaker, the dacoit and so forth--acts in fact of a truly criminal nature in which no claim of title is made. No doubt an accused cannot escape the penalty of crime by the mere pretence of a bona fide claim which has clearly no foundation. But I think that the Criminal Courts should not convict of theft any person who asserts a claim of right unless it is in a position to say that that claim is a mere pretence.
8. I must, however, take this opportunity to say that this passage in the judgment of Woodroffe, J., is apt to be misunderstood unless one is alive to the fact that when Woodroffe, J., was referring to the acts of the pick-pocket, the shop-lifter, the housebreaker and so forth, he was merely classifying these extreme cases in which no claim of title could be possibly involved. In my opinion it was neither intended nor could have been intended by Woodroffe, J., to lay down that under the Indian Penal Code the offence of theft would necessarily be confined to the class of cases referred to by him. It was perhaps in order to prevent any such misapprehension that Maclean, C.J., to whom the case was ultimately referred, there being a difference of opinion between Woodroffe, J., and Pargiter, J., had to make the following observations:
I might confine myself to saying, although there are one or two passages in the judgment of Mr. Justice Woodroffe to which exception might be taken, as for instance, the passage where he gives a definition of the word 'theft', thai I entirely agree in the conclusion at which he has arrived and generally with his reasons.
9. I have thus mentioned a few exceptions, which are by no means exhaustive, to the general rule, that where the alleged theft consists in the removal of the standing crops, the answer to the question as to who had grown the crops will often be the determining factor in the case. I have also pointed out that the mere assertion of a claim by the accused will not be a sufficient answer to the charge of theft, but it has to be shown that the claim put forward by him is an honest one and not a mere excuse to escape the conviction.
10. Proceeding now to the legal position taken up in this case by the learned Counsel for the petitioners, the arguments advanced by him before me, if I have understood them aright, amount to this: that even though a person may not be in actual possession of the land for a number of years and even though he may be aware that the land is in possession of another person and that other person has grown the standing crops on the land, he will not be committing an offence under Section 879 of the Indian Penal Code by removing the crops grown on the land provided that he can assert some title to the land. A similar line of reasoning was adopted by the lawyer for the accused in the case of Pandita v. Ruhimulla Akundo 27 C. 501 : 4 C.W.N. 480 and it was referred to in the judgment of Stevens, J., in these words:
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.
11. The learned Judge then proceeded to meet the arguments advanced in that case as follows:
In the first place it seems to me that in order to judge of the bona 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 Santram 9 B. 135 : 9 Ind. Jur. 313 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.
12. Now, it is true that the case of Queen-Empress v. Gangaram Santram 9 B. 135 : 9 Ind. Jur. 313 referred to by Stevens, J., has been characterized by some of the commentators of the Indian Penal Code as an extreme case and it may also be mentioned that in the case of Pandita v. Rahimulla Akundo 27 C. 501 : 4 C.W.N. 480 there was originally a difference of opinion between Stanley, J., and Prinsep, J., and the case was ultimately referred to and decided by Stevens, J. But the soundness of the decision given by Stevens, J., in that case is beyond question and in fact it has never been questioned. Dr. Gour in his invaluable work on the Indian Penal Code makes the following comment upon it:
Indeed, in a case of disputed claim, criminal law prefers one with actual physical possession, if there is no other case for preference. Two zemindars had a long standing dispute about certain plots of land situate on the boundary line of the two zemindaries. It was found as a fact that the complainant had grown the crops which the accused cut, claiming the plots in an assertion of a bona fide claim to the land. And the question was whether the act of the accused amounted to theft, Stanley, J., held that there being a bona fide dispute as to the title to the land upon which the paddy was grown by the complainant and cut by the accused, the latter could not be convicted of theft, but as this view was not concurred in by Prinsep, J., the case was referred to a third Judge Stevens, J., who agreeing with Prinsep, J., held that there could be no bona fide belief that the accused was entitled to the crops which the complainant had sown upon land in his physical possession and that his act, therefore, amounted to theft. In this case it will be observed, two facts were clearly in favour of the complainant,--(a) that the land was in his actual possession and, (b) that he had raised the crops. His title was, no doubt, disputed by the accused but his possession, was not.
14. The decision of Stevens, J., was further followed by the Madras High Court In re Vayalappra Kelappan Nair 29 Ind. Cas. 90 : 16 Cr. L.J. 458 in which Seshagiri Ayyar, J., held that there could not be a bona fide assertion of right in answer to a charge of theft when the accused knew that he had no possession of the property and gathered the produce grown by the complainant thereon. The same view was taken in the case of Jagat Chundra Roy v. Rakhal Chundra Roy 4 C.W.N. 190. In that case the accused had gone in a body and cut and taken away certain paddy crops found by the Court to have been sown by the complainant. At the trial they alleged that the land on which the paddy was grown was theirs and that the crop was sown by one of their tenants and not by the complainant. A suit by the complainant's landlord against some of the accused was then pending in the Civil Court. It was held that whatever might be the legal claim of the accused in respect of the land on which the paddy was sown, as they had never claimed the crop as belonging to them, they did not act in good faith and were, therefore, guilty of the offences under Sections 143 and 379 of the Indian Penal Code. I might quote in this connection the following observations of Wilkins, J:, one of the Judges who decided the case:
Now taken at its best their (accused's) claim is that they (or some of them) have an interest in the land itself; they have never asserted that it was they who cultivated the land, and grew the crop upon it, or that they have a perfect right to the whole of that crop so as to justify them in cutting it and carrying it off. The dispute is said to be a 'civil dispute' i.e., one outside the cognizance of the Criminal Courts, because (as I apprehend the matter) their claim to an interest in the land itself can be determined only by a Civil Court; and it is strongly urged for them, as evidence of the existence of such a dispute, that the landlord of the complainant in this case has now pending a suit in which he prays for a declaration of his title to, and for confirmation of his possession of, this property. In these circumstances we are asked to say that the petitioners honestly believed that they had a right to go upon this land in large numbers, and to cut and carry away the whole of the crop of paddy, not one stalk of which any of them took any part in cultivating. Speaking for myself, I am unable to go so far as this. I am willing to concede that possibly the petitioners may have thought that they had a valid interest in the land and were entitled to get some return from it in the shape of rent. But even if that belief was well-founded, still it seems to me impossible to hold that they could, in consequence, have had, or that they really had, an honest belief that they were entitled to assemble in large numbers and to cut and carry off the whole of a crop which none of them grew. By these acts they have, in my opinion, intentionally caused wrongful loss to the cultivator of that crop, and have consequently been rightly convicted; for I know of no authority for holding that, because A has a bona fide belief in his right to some interest in land, he is thereby justified in appropriating to himself the whole of the crop, which was sown and cultivated by B, even if it may eventually happen from the result of litigation that B is liable to pay something to A for occupation of the land.
15. I may also in this connection quote the following observations made by Prinsep, J., who gave a separate judgment in the same case:
Whatever the legal claims of the accused may be, they are clearly breaking the law in forcibly carrying off a crop found to have been raised by the complainant. Nor can it be properly be held that in so doing they have acted in good faith believing the crop to be their own property. The crop certainly was never their property, and here I would point out that this plea is opposed to the line of defence taken at the trial, witnesses having been examined to prove that this crop was raised not by the complainant but by a tenant of the principal accused. The defence has been unable to establish this: How then can the accused fairly plead in the alternative that they cut this crop under an honest belief that it was theirs?
16. Another case which might be referred to is the case of Muhammad Ata v. Emperor 67 Ind. Cas. 498 : 19 A.L.J. 961 : 23 Cr. L.J. 402 in which Stuart, J., laid down that where the accused had been convicted of theft for having cut and removed the crops which had been sown by the complainant, it was immaterial whether the complainant had or had not good title to cultivate the fields and it was sufficient for the conviction of the accused that the complainant has sown the crops. In fact the Criminal Court has necessarily to attach so much importance to the question as to who has sown the crops that in the case of Sarju v. Emperor 32 Ind. Cas. 667 : 17 Cr. L.J. 75 it was held that the crops being the property of the accused, the cutting down of those crops by them could not constitute the offence of theft even though an order under Section 145 of the Code of Criminal Procedure had been made in favour of the complainant. In the case of Rakhal Dalui v. Makham Lal Ghose 104 Ind. Cas. 443 : 31 C.W.N. 964 : 28 Cr. L.J. 827 : A.I.R. 1927 Cal. 701 in which the facts were not dissimilar to the facts of the case just quoted, Cuming, J., dealing with the main questions involved in the case made the following observations:
We are not in the present case concerned with the title of either party to the land. What we are concerned with is who were in possession on the day of the occurrence with or without title and who grew the crops in question.
17. By referring to these decisions I do not mean to suggest that the question of title to the land will be immaterial in every case in which the alleged theft is said to consist in the removal of the crops growing on the land; bat generally speaking, once the Criminal Court is able to come to a finding as to who was in actual possession of the land and had grown the crops on the land the question of title will at once become a secondary consideration.
18. The principle underlying the decisions referred to above appears to me to be clear. We must remember that an offence of theft can be committed in respect of moveable property only and one of the distinctions between the English and the Indian Law of theft is that the English Law looks to ownership while the Indian Penal Code looks to possession. Thus the question which the Criminal Court has to decide in a case like the present one is as to who was in possession of the crops forming the subject matter of the offence at the time the crops were cut and removed. There cannot be much difficulty in answering this question, once it is ascertained as to who was in possession of the land and who had sown the crops, cared for it and spent money and labour on it. As to the plea of good faith, it will be negatived as soon as it is found that the accused was aware of the fact that he was neither in possession of the land nor had he grown the crops. It is said that the mere fact that the accused believed, howsoever erroneously, that because he had title to the land, he had also title to the crops, will take away the mens rea the proof of which is absolutely necessary for a conviction of theft. Now, assuming that this is a legitimate line of reasoning even in the extreme circumstances of the accused being fully aware of the land being in possession of and the crops having been grown by another person, the fact remains as to how the Court is to be convinced that such a wild belief was really entertained by the accused. If the accused raises a false defence and claims to be in possession of the land of which he is not in possession and also says that he has grown the crop which is not grown by him, he is obviously not helping the Court to come to the conclusion that he really entertained the belief which, it is urged on his behalf, he should be credited with.
19. In the present case it is conceded on behalf of the petitioners that the land has been in the possession of Daroga Singh and Baljit Singh since the year 1920 and it is also conceded that the crops were grown by his bataidar and that these facts were within the knowledge of the accused. Under these circumstances, it is difficult to hold that the accused could believe in good faith that they were entitled to the crops which they had not grown and which had been grown on the land of which they were not in possession. It is still more difficult to hold that in removing the crops they were not intending to cause either wrongful loss to the person who was actually in possession and had grown the crops or wrongful gain to himself being aware that they had neither grown the crops nor were in possession of the land. It may be that they were under the belief that they had some title to a portion of the lands in dispute and that they also believed that they may be ultimately successful in getting back possession of the land through a competent Court. It is, however, difficult to hold under the circumstances of the present case that they were entitled to or could believe themselves to be entitled to appropriate the produce of the land before they had secured possession thereof by legitimate means.
20. I have discussed the question raised by the learned Counsel independently of certain very material facts in the case which in themselves go a long way to rebut the plea of good faith which has been raised in this case on behalf of the petitioners. We must remember that the petitioner's defence in the case was that they had acquired actual possession of the tlands in dispute and that it was they who had grown the crops. This defence has been definitely found to be false and rejected by the Courts below. It is also to be remembered that the petitioners in this case cannot possibly lay claims in dispute in their entirety and that on their own case they had purchased the share of Bacha Das only in the lands in dispute. In fact their case was that there had been a partition and that the lands which had fallen to the share of Bacha Das had been demarcated from the lands which belonged to Nabi. This case also has not been accepted either by the trial Court or by the lower Appellate Court. It is true as the learned Counsel for the petitioners says that the Courts below have not come to an express finding that the crops were removed from the entire plots; but whatever findings have been arrived at by the two Courts necessarily involve a finding to this effect also. These being the circumstances of the case, I am unable to agree with the learned Counsel that the conviction of the petitioners under Section 379 is wrong and liable to be set aside.
21. The conviction under Section 144 also depends very largely upon the propriety of the conviction under Section 379, and I cannot interfere with the conviction of the petitioners under this section also in view of the clear findings arrived at by the Courts below.
22. It is, however, urged that the sentences passed in this case are too severe. So far as the sentence passed on Sheikh Abdul is concerned, I do not think it is severe considering that he was responsible for the whole occurrence. I am, however, informed that Sneikh Abdul is dead and find that the other petitioner Sheikh Gaffar, who is the son of Sheikh Abdul, is a young man and was obviously acting under the influence of his father. Having regard to all the circumstances of the case and particularly to the fact that no one on the opposite side was injured in the case and that no prominent part is ascribed to Sheikh Gaffar, I would reduce his sentence of imprisonment to the period already undergone and maintain the sentence of fine.