GOVINDHA MAJHI Vs. AROBINDA KAR

JUDGEMENT

(1.) THE petitioner has obtained this rule against the appellate judgment of the Additional District Magistrate, Balasore, confirming the judgment and sentence of fine of Rs. 25 passed against the petitioner under Section 379, Penal Code, by the Magistrate, 3rd Class, Balasore,

(2.) THE case against the petitioner is that he caught fish in Panchpara river on 10th December 1947 without taking the permission of the complainant who claims to be the licensee of the fishery from Government. The admitted facts are that Plot No. 1326 in Mouza Bahalpur is recorded in the name of Government and is part of a tidal and navigable river. At the previous settlement it was recorded in the name of the local landlord and the fishery right had been assessed at Rs. 9. At the Current Settlement the plot was recorded as a public river in the name of Government. Both the Courts below have proceeded on the assumption that it is a tidal and navigable river. The petitioner claims to have a common law right of fishing in the waters as the river remains tidal and navigable throughout the year. The question therefore for decision is whether the act of the petitioner in catching fish constitutes theft.

(3.) THE law on what constitutes the offence of theft of fish is more or less well settled. Fish in an enclosed space or in a tank closed on all sides is the property of the owner of the tank, the test being whether the fish are confined within a limited space. If on the other hand the fish are in a state of feres nature, they can escape and go wherever they like. In such condition it is difficult to say that they can constitute property until they are caught. In a tidal and navigable river the fish can always come for and go into the sea though, for a time they live in the river. The fish are, therefore, in a state of nature and cannot be held to be the property of anybody until they are caught. In my opinion, the lessee of the fishery has obtained from Government nothing more than a right to fish in a particular area. If anybody other than the licensee catches fish his act may amount to an invasion of the right of the lessee to fish and may constitute an act of trespass. There is also clear authority for the view that such an act does not constitute criminal trespass. Whether the act amounts to an invasion of a civil right or not, or whether the licensee obtained an exclusive right to fish by reason of his lease are matters that do not require to be considered in this petition. The offence charged against the petitioner is the offence of theft. The elements of this offence are dishonest removal from the possession of an owner. The catching and removal of the fish being admitted in this case the question is whether the fish were in the possession of the complainant at the time of their removal and whether the removal was dishonest. As I have said already the fish were in a state of fera natures and were not in the possession of the complainant. The intention of the petitioner cannot be characterised as dishonest because he did not intend to cause any wrongful loss to the complainant, the fish not being in his possession. I am, therefore, satisfied that the elements of the offence of theft have not been made out and that the conviction of the petitioner cannot be upheld.