SHEIKH ELAHI BUX Vs. EMPEROR

JUDGEMENT

(1.) THE petitioner has been fined fifty rupees under Section 379, I.P.C., for taking fish from a river in which the jalkar rights were vested in the complainant's master. It appears that this is a running stream and Mr. B.C. De on behalf of the petitioner argues that the proprietor of the jalkar right in a running stream has not such possession as to make the taking away of the fish theft within the meaning of Section 378 I.P.C. On behalf of the complainant reference is made to the decision in Dhirendra Mohan Gosaain Vs. Emperor 14 CWN 408, but in that case the fish were taken from a tank, which is another matter. It is suggested that in those cases in which it has been held that fish in a river cannot be said to be property in the possession of the person who has the fishery right, the river has been a public navigable river in which the ownership of the bed did not vest in the proprietor of the jalkar. THE question is not affected by the question of who may own the bed; the question is of whether the ownership of the jalkar gives possession of the fish of the river within the meaning of Section 378, I.P.C. THE real question is whether the river is a flowing river or whether the fish are enclosed in such a way that they may be said to be practically in confinement and to be brought into possession ofthe owner of the fishery right. THE true principle will be found expressed in the judgment of the Calcutta High Court in Bhagiram Dome V/s. Abar Dome (1888) 15 Cal 388, wherein the Judges observed: We take it that it is a flowing river, and that fish enter it, and leave it, at their pleasure; and that the lessee of the fishery has no control whatever over them. THE fish are not stored or bred there; they are not confined within an enclosed space, and are therefore free to go wherever they please. THEy are farae naturae, and as such nobody can be said to be in possession of them, and therefore no theft can be committed in respect of such fish.

(2.) IT is suggested on behalf of the complainant that if the petitioner did not commit the offence of theft, he committed the offence of criminal trespass. On the findings of the criminal Courts, it would appear that he committed a trespass; but I do not find anything on the record to indicate that he committed a criminal trespass. IT is suggested that he went onto the complainant's water for the purpose of intimidating the complainant, because he had a number of men with him; but when the complainant arrived, he and his companions abandoned their boats and their nets and left the place which negatives any intention to intimidate. IT does not appear that he went to the place in order to insult or annoy the complainant; and I do not consider that the facts found would sustain a conviction of the offence of criminal trespass. The application is allowed and the conviction and sentence of fine will be set aside. The fine if paid will be refunded.