Patna High Court
Sadasiv Singh And Ors. vs Emperor on 9 January, 1917
Equivalent citations: 39IND. CAS.475, AIR 1917 PATNA 40
JUDGMENT Atkinson, J.
1. This revision comes before me from the decision of the Rev. Mr. Campbell, acting as an Honorary Magistrate having 1st class powers, convicting the petitioners under Section 379, Indian Penal Code, of theft.
2. The prosecution alleged that in the month of June 1914 the petitioners cut timber on Mouza Kenduatar, the property of Mr. Bannerji, and took and carried away such timber when cut with the intention of stealing the same. The petitioners, who are the servants of Mr. Gorai, a zemindar of Latant, say that the timber cut was the property of their master and cut on his mouza and not on the mouza of Mr. Bannerji.
3. There was a violent conflict before the Honorary Magistrate as to the boundary between the two mouzas which adjoin. According to the thakbast map of 1861 the boundary is in favour of the prosecution; according to the survey map of 1864 the boundary is in favour of the case advanced on behalf of the defendants. It seems reasonably clear that the claim was honestly put forward with reference to the title to the mouza in question, and if the survey map was right no offence would have been committed.
4. The point was taken before the Magistrate, that having regard to the nature of the claim of title asserted by the defendants his jurisdiction was ousted and that the parties should he left free to have the dispute as to their rights settled in a civil action. The Magistrate, however, disregarded this requisition, and proceeded to find the petitioners guilty of the crime of theft and fined them Rs. 10 From that conviction this revision application is made.
5. If a claim of title to property is honestly made then the Criminal Court's jurisdiction is ousted; and a man who honestly believes that he is taking away property from his own land cannot and ought not to be convicted of theft. The authorities in this country seem perfectly clew, and accord entirely with the spirit of the English Law. I refer to the case reported as Bhirendra Mohan Gossain v. Emperor 5 Ind. Cas. 794 ; 14 C.W.N. 408 at p. 409 ; 11 Cr. L.J. 248, to the judgment of Sir Lawrence Jenkins and also to the most recent case of Suraj Ali v. Arfan Ali 36 Ind. Cas. 136 ; 20 C.W.N. 1270 ; 17 Cr. L.T. 456 ; 44 C. 66, and these cases proceed upon the basis that if a claim is honestly put forward, even though it may be ascertained to be unfounded in fact eventually, and is not merely colourable, that such a claim of title ousts the jurisdiction in a criminal proceeding.
6. These decisions correctly interpret what the law is, and I think this Magistrate exceeded his jurisdiction, and that be ought to have, on the objection being taken, allowed the matter to be settled by the Civil Court. I think it would be quite unsafe and improper that this conviction should stand, and I direct it to be set aside, and the fine of Rs. 10 paid should be refunded to the petitioners.