ADVOCATE-GENERAL Vs. BHIKARI CHARAN MAHANTI

JUDGEMENT

(1.) This is ah appeal by the Advocate-General of Orissa on behalf of the Provincial Government from an order of the learned District Magistrate of Balasore acquitting the respondents upon a charge of theft. The respondent Puma Chandra Singh was charged under Section 379, I.P.C., while the respondent Bhikari Charan Mahanti was charged under Section 379, read with Section 114, I.P.C., for abetting the commission of the offence of theft by Puma Chandra Singh. Both the respondents pleaded not guilty; but a learned Magistrate of the Second Class found them guilty of the offence with which they were charged and convicted and sentenced each of them to pay a fine of Rs. 25 and in default of payment to undergo rigorous imprisonment for a period of one month. The respondents appealed to the Court of the learned District Magistrate, Balasore, where they were found not guilty and acquitted.

(2.) At the conclusion of his judgment the learned District Magistrate made the following observation: But in view of the importance to the administration of the District that the doubts regarding the law relating to terse nature should be made dear in the case of a conflict between a landlord and his tenant, this is, in my opinion, a fit case to go before the Hon ble High Court for an authoritative ruling on the subject. Presumably, acting on this observation, the Provincial Government have preferred this appeal from the order of acquittal. The facts of the case can be shortly stated as follows: The respondent Bhikari Charan Mahanti is a Circle Officer in the Kanika Raj, whereas the respondent Purna Chandra Mahanti is a Forest Jamadar in the Raj. The complainant is a tenant within the Kanika estate and is a member of the Orissa Legislative Assembly. The subject-matter of the alleged theft is a dead bird worth about one rupee. On 3 December 1938, a tenant of the Raj, one Mayadhar Naik (P.W. 2) together with Apurna Munjet (P.W. 3) went to a paddy plot No. 98 in village Garkola and there Apurna Munjet shot two gadargadira birds which were eating the paddy. They were accompanied by a servant Chiniamani Barik (P.W. 6) and the latter was ordered to take back the birds to Mayadhar Naik's house and to-hand them over to the complainant Chakradhar Behera (P.W. 1) who was staying with Mayadhar. Chintamani Naik took the birds to Chakradhar, and the latter ordered him to take one of the birds to Chakradhar's home which was in a village called Haldia, some distance away.

(3.) Chintamani took the bird, and on his way he passed the Panchutikri Kachahri of the Kanika Raj. There he was stopped by the respondent Charan Mahanti and asked who had shot the bird. Chintamani Barik said that Apurna Babu had shot the bird and that he was taking it to the house of Chakradhar Babu. The respondents claimed that Apurna had no right to shoot the bird and that the dead bird belonged to the estate. It is said that Apurna refused to give up the bird, whereupon Purna Chandra Singh upon the orders of Bhikari Charan Mahanti snatched the bird from Chintamani Barik and took it away. Chintamani Barik returned to Mayadhar's house and there reported the matter to the complainant Chakradhar Behera. 5. On their return from plot No. 8, Mayadhar and Apurna passed the Raj Kachahri and Apurna was stopped and questioned; Bhikari Charan Mahanti asked him if be had killed the bird and Apurna replied that he had killed two. He was taken to task and told that he had no right to shoot any birds without the permission of the Raj. His name, address and gun number were taken and he was asked to submit a written apology. Apurna Munjet refused and said that he had all along been shooting in the Kanika Raj without permission granted by the Raj authorities. 5. It appears that on the day in question the Sub-divisional Officer of Bhadrak was camping outside the village of Panchutikri, and Chakradhar Behera immediately went to him and made a complaint. He filed a written complaint supported by a solemn affirmation which is printed at pp. 1 and 2 of the paper-book. He sets out the facts of the case and in the solemn affirmation he says that the respondent told Chintamani Barik that the birds were killed without permission and that he would not be allow-ed to take away the birds. Thereupon Puma Chandra Singh snatched away the bird under the orders of the Circle Officer Bhikari Charan Mahanti. 6. It is quite clear from this petition and solemn affirmation that the two respondents claimed that as the bird had been shot without permission granted by the estate authorities no one had a right to it and that it would have to be given up to the estate. Shortly after, Chakradhar Behera had made this complaint, the respondent Purna Chandra Singh appeared before the Sub-divisional Officer with the dead bird and reported that the bird was shot without authority. The Sub divisional Officer directed Purna Chandra Singh to file a complaint, and this was done in due course. In that complaint which is printed at pages 72 and 73 of the paper-book it is. alleged that the two gadar, gadira birds were shot on the abadi khasra land of the estate bearing plot No. 43. It is alleged that Apurna and Mayadhar entered the land, killed the birds without permission and after having killed them misappropriated the same. 7. The complainant states that he protested and that Chintamani Barik took over one of the birds when told to do so. It is prayed that proceedings might be taken against Chakradhar Behera, Apurna Munjet, Chintamani Barik and Parikhit Naik for shooting and taking away the birds without the permission of the Raj. The case against the respondents was heard by a Magistrate of the Second Class. He held that the birds were shot on plot No. 98 of village Garkola and not on the anabadi plot No. 43 of village Panehkutti as alleged by the defence. He further held that there was no custom in the Raj forbidding tenants to shoot birds or beasts on their holdings and he accordingly held that the birds, when they were shot, belonged to the tenant. 8. He further held that the bird had been forcibly snatched away from Chintamani Barik and as the respondents had no right whatsoever to it he convicted them of theft and abetment of theft and fined each of them Rs. 25. The learned District Magistrate on appeal was satisfied that the birds were shot on plot No. 98 of village Garkola and not on anabadi land of the Raj. The learned Magistrate did not consider whether any custom existed in the Raj relating to the right to take game or wild birds. He however was of opinion that all wild birds on the Raj belonged to the proprietor, and that being so the respondents who were the servants of the Raja Bahadur, could not be guilty of theft in taking the Raja's own property. He accordingly set aside the convictions and acquitted both the respondents. 9. On behalf of the Provincial Government, it has been contended that the decision of the learned District Magistrate is clearly erroneous. It is contended that the right to take and kill all game and wild animals belongs to the tenant and not to the landlord, unless such right to take and kill game, etc. has been reserved expressly or by implication or unless by custom the proprietor and not the tenant is entitled to get the game and wild animals. It is admitted in this case that Mayadhari Naik (P.W. 2) was an occupancy tenant of the Raja Bahadur and there is no suggestion in the case that at the creation of the tenancy the landlord reserved to himself the sole right of killing game, wild animals and birds. It is contended that the right to kill game, wild animals and birds is an incident to possession of property and that, apart from the circumstances which I have indicated, such right is given to the tenant upon the creation of a tenancy. Mayadhar Naik, though an occupancy tenant of Plot No. 98 of village Garkola, was not in possession of this plot when these birds were shot. 10. Mayadhar Naik in evidence stated that at that time the entire plot was cultivated by Sridhar Mahanti of Khidarpur and Bhramarbar Padhari of Daulatpur on the sanja system. In short the plot had been let to the cultivators on payment of a fixed quantity of paddy. It would appear therefore that Mayadhar Naik was not the tenant in actual possession of the plot. There is no suggestion however that on the day in question he was on the plot without the consent of his subtenants though there is no evidence of such consent. However, in my view, it is not necessary in this case to consider the precise position of Mayadhar Naik with regard to this plot. 11. Mr. G.P. Das, the Public Prosecutor for Orissa, who has argued the case with great force on behalf of the Provincial Government has relied upon a number of authorities to establish the proposition that the right to take game belongs to the tenant and not to the landlord. He has pointed out that at Common Law in England the tenant is entitled to take and kill all wild animals on the land unless such right is reserved expressly or by implication by the landlord. He has contended that the English Common Law is correctly stated in Woodfall's Landlord and Tenant, Edn. 23, at p. 904. There it is stated: At Common Law the right to take and kill game (in which, as in all animals fere natures, there is no property) belongs to the tenant, and not to the landlord, by virtue of the tenant's property in the land. It is and has long been very common, how-ever, for the landlord to reserve the right to the game in the contract of tenancy, and the Game Act, 1831, which did away with the numerous restrictions and qualifications whereby a tenant was almost invariably prevented, even in a case where the game did not happen to be reserved to the landlord, from enjoying his right to it, has specially protected such reservation. 12. According to Mr. Das, such a rule is more appropriate to Indian conditions than English conditions because an occupancy tenant has a far greater interest in the land than a mere agricultural tenant in England who is in most cases a tenant from year to year, whose tenancy can be terminated by a year's notice to quit. In India the occupancy tenant cannot be ejected by a mere, notice to quit. He has a right in the land which is heritable and now transferable as long as he continues to pay his rent and use the land for the purpose for which the tenancy was created, and after his death his descendants cannot be ejected therefrom. If the law of England gives a tenant from year to year a right to take and kill game and wild animals, a fortiori the Indian tenant should have such a right. 13. It has been urged that the right of the tenant to take and kill game has been recognized by the Indian Courts, and reliance has been placed on a number of oases, namely, Makath Unni Moyi V/s. Malabar Kandapuni Nair (1882) 4 Mad 268, Kishore Chandra V/s. Radha Gobind Das AIR (1919) Pat 400, Emperor V/s. Artu Rautra AIR (1924) Pat 564 and Henry Hill & Co. V/s. Shaoraj Rai AIR (1922) Pat 9. It is to be observed that only the last case cited deals with the respective rights of landlord and tenant, and the case in Henry Hill & Co. V/s. Shaoraj Rai AIR (1922) Pat 9, deals not with game and wild animals and birds but with the right to take fish. 14. In my view it is not necessary in this case to express any opinion as to the rights of either landlord and tenant to game, because this case can be disposed of upon other grounds. In any event a Criminal Court is Dot an appropriate tribunal to decide difficult and complicated questions relating to rights of property. It appears to me upon the plain facts of this case that the respondents cannot be convicted of the offence of theft. In the solemn affirmation made by the complainant Chakradhar Behera (P.W. 1), it is clearly stated that the respondents took the bird from Chintamani Barik, because they claimed that the bird belonged to the Raj as it had been shot without authority. 15. It is also clear from the evidence of Apurna Munjet (P.W. 3) and Chintamani Barik (P.W. 6) that the respondents as officers of the Raj claimed the bird as belonging to the Raj because it had been shot without authority. If the two respondents took the bird believing that it belonged to the Raj as it had been shot without authority, then they could not be guilty of the offence of theft. "Theft" is defined in Section 378, Indian Penal Code, and the definition is in these terms: Whoever, intending to take dishonestly any moveable property out of the possession of any person without that person's consent, moves that property in order to such taking, is said to commit theft. 16. It is to be observed that the essential ingredient of theft is an intention to take dishonestly. Without such intention the taking of moveable property does not amount to theft. The word "dishonestly" is defined in Section 24, Indian Penal Code, in these terms: Whoever does anything with the intention of causing wrongful gain to one person, or wrongful loss to another person, is said to do that thing "dishonestly." "Wrongful gain" and "wrongful loss" are defined in Section 23, Indian Penal Code: Wrongful gain is gain by unlawful means of property to which the person gaining is not legally entitled. Wrongful loss is the loss by unlawful means of property to which the person losing it is legally entitled. 17. In my view, a person cannot be said to act dishonestly, that is with an intention of causing wrongful gain to himself or his master or wrongful loss to another, when be takes moveable property which he believes to belong to himself or his master. In short, if the person taking any moveable property does it under a bona fide claim of right, then he cannot be found guilty of the offence of theft. The defence of bona fide claim of right has been recognized by all Courts in India, and Mr. Manuk who has argued the case with great ability and fairness on behalf of the respondents has cited a large number of cases. In Dhirendra Mohan V/s. Emperor 14 CWN 408 a Bench of the Calcutta High Court (Jenkins, C.J. and Woodroffe, J.) held that if an accused asserts a claim to a thing alleged to have been stolen by him, he should not be convicted unless the Court is in a position to say that the claim is a mere pretence. At page 409 Jenkins, C.J. observed: In this case it is clear that the petitioners who have been convicted assert a claim, and one who asserts a claim should not be convicted of theft, unless the Court is in a position to say that the claim is a mere pretence. This is the law as laid down in Hari Bhuimali V/s. Emperor AIR (1905) Cal 974. Here it is impossible to say that the claim is a mere pretence. Indeed, the lower Appellate Court contemplates that there must be a civil suit about the tank which has given rise to the present criminal proceedings. The result is that the rule must be made absolute, and the conviction and sentence set aside. 18. A similar view was taken by Mookerjee and Sheepshanks JJ. in Arfan All V/s. Emperor AIR (1917) Cal 648. It was held in that case that the removal of property in the assertion of a bona fide claim of right, though unfounded in law and fact, does not constitute theft. But a mere colourable pretence to obtain or keep possession of property does not avail as a defence. Whether the claim is bona fide or not must be determined upon all the circumstances of the case, and a Court ought not to convict unless it holds that the claim is a mere pretence. In this case the learned Judges cited and followed a statement of Sir Matthew Hale in his Pleas of the Crown (Vol. 1, pp. 508 and 509): It is the mind that makes the taking of another's goods to be a felony or a bare trespass only, but because the intention and mind are secret, the intention must be judged by the circumstances of the fact, and though these circumstances are various and may sometimes deceive, yet regularly and ordinarily these circumstances following (sic) direct in this case. If A, thinking he hath a title to the horse of B, seiseth it as his own, or supposing that B holds of him, distrains the horse of B without cause, this regularly makes it no felony but a trespass, because there is a pretence of title, but yet this may be but a trick to colour a felony, and the ordinary discovery of a felonious intent is, if the party doth it secretly, or being charged with the goods denies it. 19. The learned Judges also cited with approval Sir Edward Hyde East's statement of the law in his Pleas of the Crown, Vol. 2 page 659; In any case, if there be any fair pretence of property or right in the prisoner, or if it be brought into doubt at all, the Court will direct an acquittal; for it is not fit that such disputes should be settled in a manner to bring men's lives into jeopardy. 20. This view of the law was followed in this Court by Atkinson, J. in Sadasiv Singh V/s. Emperor . In that case the learned Judge laid down that 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 learned Judge went further and held that: If a claim of title to property is honestly made and is not merely colourable, then the jurisdiction of the Criminal Court is ousted. It was perhaps unnecessary to deal with the question as to whether the jurisdiction of the Court is ousted when a bona fide claim of right is made. It appears to me sufficient to say that if such a claim is honestly made, then no conviction for theft can possibly be made. In a later case of this Court, Ram Brich Lal V/s. Emperor AIR (1985) Pat 472. Dhavle J. also gave effect to the defence of a bona fide claim of right. In the present case the sup. posed owner, namely the Raja Bahadur of Kanika, did not himself claim the bird and the claim was made by his servants acting on his behalf. 21. A servant may well be in a stronger position than his master, because a servant might, in certain circumstances, honestly believe that his master was the owner of certain property, whereas the master might well know that he was not. The position of a servant was considered by a Pull Bench of the Calcutta High Court in Hari Bhuimali V/s. Emperor 9 CWN 974. In that case it was held that the Criminal Court 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. It was further held that a servant should not be held guilty of the offence of theft when what he did was at his master's bidding, unless it should have been shown that he participated in his master's knowledge of the dishonest nature of the acts. 22. There must be some evidence before the Court from which such knowledge on the part of the servant can be inferred. It appears to me that these oases clearly establish that if the present respondents honestly believed that the bird belonged to the Raj they cannot be convicted of theft. As I have stated earlier, the witnesses for the prosecution make it clear that the bird was taken from Chintamani Barik because the respondents claimed that it belonged to the Raj as it had been shot without authority. 23. That is even admitted in the solemn affirmation filed with the petition. It is clear that the Kanika Raj has over a long period of time claimed the sole right to kill and take wild animals on Raj lands. The Raj has claimed the right to forbid the killing and taking of such animals without permission and has from time to time made known its views. As far back as the year 1907 a notice (Ex. C) was published in a local paper called "The Star." This notice is printed at p. 32 of the paper-book and was actually issued on 1 February 1907. The notice is in these terms: The public are hereby informed that shooting without permission, within the limits of Killah Kanika is strictly prohibited. The jungle in lands named Kalibhanja Dian and Baguli Dian are reserved and persons entering them, without permission, on any account, will be dealt with as trespassers. Any gentleman wishing to visit the estate for sporting purposes should apply for permission to the Manager at Ganja, the quarters of the estate. 24. It is not denied that such a notice was issued, but it is contended that the notice applies only to strangers. There can be no doubt, however that the person who issued the notice must have been under the impression that all game belonged to the Raj. The public were informed that shooting without permission within the limits, of the Raj was strictly prohibited, that is shooting on either land in the Raja's possession or in the possession of tenants. The wording of the notice is wide enough to cover all types of land in the Raj. Shooting on all such land is forbidden, and even if the notice was intended to apply to strangers it is clear that the Raj claimed the right to the shooting on land in the occupation of tenants. 25. If the tenants were entitled to grant permission, then obviously the Raj could not insist on its right to give permission. The form of the notice suggests dearly in my view that even as early as 1907 the Raja of Kanika claimed the sole right to take and kill game within the Raj. In the trial Court a large number of documents were adduced in evidence on behalf of the respondents with a view to showing that the Raj insisted that no one was entitled to shoot within the confines of the Raj without express permission. The rules of the Forest Department of the Raj were put in evidence and also a number of applications for licenses and the licenses granted, It was urged in the Court below that these documents showed that by custom the Raja Bahadur had the sole right to take game. Mr. Manuk has not asked us to hold, that thedocuments established any custom, but he has asked us to hold that these documents show that for a long period of time the Raja Bahadur of Kanika has rightly or wrongly claimed to have the sole right to take and kill all game and wild animals within the Raj. 26. In my judgment, the evidence adduced in this case undoubtedly shows that the owner of the Kanika Raj has always claimed the game. Such a claim may Or may not be well-founded, and I express no opinion whatsoever upon it. It is sufficient in this case for me to hold that such a claim has been and is now being put forward. There is nothing whatsoever to suggest that such a claim is not bona fide. That being so, it is impossible to hold that the respondents who were Raj servants were claiming this bird dishonestly. As servants of the Raj, they knew that the Raj claimed all game shot without permission, and it appears to me that they took this bird believing that the Raj was entitled to it. 27. They said so when they took the bird, and I have no reason whatsoever to doubt that their action was due to the undoubted claim of the Raj. It was contended that the defence put forward on behalf of the respondents clearly shows that they were not actuated by a bona fide claim of right when they took the bird. One of the defences was that the bird was not shot on Mayadhar's plot but on anabadi or uncultivated land of the Raj. Uncultivated land of the Raj would, of course, be in the Raj's possession, and prima facie he would be entitled to shoot all wild ani-mals upon it. 28. It has been urged that the very fact that this defence was put up shows that the respondents were not acting honestly. It is true that both the Courts found that this defence was not established; but in my view the important point of time is the actual moment the bird was taken from Chintamani Barik. At that moment did the respondents believe that the bird really belonged to the Raj? If they did, then it must be held that their claim was a bona fide one. Nothing that occurred afterwards can really affect the matter. In my judgment, the evidence for the prosecution establishes that these respondents did nothing more than seize property which they honestly believed belonged to their master. That being so, they could not be convicted of theft. 29. It appears that this point was never raised before the Courts below. Had such a point been taken, there would in all probability have been no appeal. In my judgment, the respondents in this case acted under the honest belief that the bird belonged to the Raj and that concludes the matter. Again, I wish to make it clear that I express no opinion whatsoever upon the question as to whether the Raj's claim to game wild birds and animals on the land of occupancy or other tenants is or is not well founded in law. That is a matter which can only be determined in appropriate proceedings in another Court. For the reasons which I have given, I would dismiss this appeal. Varma, J. 30. I agree. 31. Mr. G.P. Das, the learned Public Prosecutor for Orissa, has tried to show that the acquittal was wrong by urging that neither the Raj nor its servants could have any rights to the birds shot by Apurna Munjet (P.W. 3) on plot No. 98 which was an occupancy holding of Mayadhar Naik (P.W. 2). The Criminal Court is not the proper forum to establish the relative rights of a landlord and a tenant to game birds, and it is not necessary on the materials before us to go into that complicated question. In this case we have to see whether a case of theft has been made out. "Theft," as defined in Section 378, I.P.C., is committed when property is removed dishonestly from the possession of another person. 32. It is evident therefore that, if the removal of the property is not dishonestly made, the charge of theft cannot sustain. In this case, whether the taking of the birds, worth about one rupee, Was dishonest or not can be gathered from what the complainant himself stated on solemn affirmation. He stated that the accused asked Chintamani Barik from where he had received the birds, and Chintamani Barik told them that he received the bird from me and that he was taking it to my house. On hearing this they said that the bird was killed without their permission from the estate and they should not allow him to take that bird. Under orders of the Circle Officer, Purna Chandra Singh snatched away the bird from Chintamani Barik and took it to their Kutcherry house. It is clear from this statement that the accused asserted a right to the bird as servants of the Raj. 33. A petition of complaint was also subsequently filed by the Forest Jamadar of the Raj on 10 December 1938, against Chakradbar Behera (the complainant in this case) M. Apurna and Chintamani Naik, and it was alleged in this petition that these persons took the dead bird from land owned and held by the Raj and misappropriated the same and therefore they should be summoned and tried. It was further stated therein that the Sub-Divisional Officer had already been informed of the incident on the date of the occurrence and the delay in filing the petition was due to the fact that permission of the Raj had to be obtained beforehand. 34. Taking the two complaints together, it is clear that the assertion of the right of the Raj to game birds is a fact supported by the statements of the complainant himself in this case. This assertion of right is a very old one, and. in this case the accused asserted that right as servants of the Raj. In such circumstances they cannot be said to have removed the dead bird dishonestly unless it be held that the assertion was a mere pretence. On the evidence to which reference has been made in the judgment just now delivered, coupled with the statements of the complainant of this case and the Forest Jamadar of the Raj, I am of opinion that the case falls within the principle laid down in Hari Bhuimali V/s. Emperor AIR (1905) Cal 974. The acquittal of the accused in this case cannot therefore ba recalled, and I would dismiss the appeal.