Decided on July 27,1970

Sashani Bala Devi Appellant
Kishori Mohan Das Respondents


S.N. Bagchi, J. - (1.) Having read the Letter of Reference of the learned Sessions Judge of Burdwan and heard the learned Advocates on both sides, I think this Reference must be accepted. From the facts stated in the Letter of Reference, it appears that between the present petitioner accused and the opposite -party complainant a bona fide dispute of a civil nature is pending decision by a competent court in regard to the possession of certain immovable property. The complainant -opposite -party alleged in the petition of complaint before the Magistrate of Burdwan against the present petitioner Kishori and others that on 22.11.68, the petitioner and others committed theft in respect of cut jute which had been kept gathered on a certain plot of land belonging to the complainant -opposite -party. After taking initial ejahar of the complainant, the Magistrate directed the local police to make an enquiry and report. An enquiry was held by the Police and the report was submitted which indicated that in respect of the land in question there was a deed of gift by the complainant in favour of the accused. Subsequently, the complainant filed another petition praying for judicial enquiry. A learned Magistrate held the judicial enquiry reporting that the controversy involved a civil dispute. On 30 -9 -69 the Magistrate summoned the accused persons including the present petitioner under Sec. 379 of the Indian Penal Code. The petitioner approached the learned Sessions Judge with a prayer for quashing the proceeding against him. On 25.4.67, the complainant filed a suit against the petitioner in the Munsif Court, Burdwan, for cancellation of the deed of gift, she had executed in favour of the accused petitioner on the ground that it was obtained by fraud. That suit was pending decision at the time when the alleged offence was committed by the petitioner. The petitioner claimed possession under the deed of gift in the land in question from which the petitioner was alleged to have had cut down growing jute and committed theft in respect thereof as was complained of by the opposite party complainant Sashani Bala Debi.
(2.) It is clear from the facts stated in the Letter of Reference by the learned Sessions Judge that the petitioner -accused has raised a bona fide dispute of a claim of civil nature in regard to the possession in the land in question. The petitioner claimed that while in possession of the land obtained under a deed of gift from the opposite party he grew jute and cut it and had not committed any theft in respect of the jute. The complainant -opposite -party, before the alleged occurrence of theft had taken place, went to a civil court of competent jurisdiction for cancellation of the deed of gift in respect of the land in which the petitioner claimed possession under the deed of gift at the time of the alleged theft allegedly committed by him of the jute allegedly grown by him on the land obtained by him and possessed by him under a deed of gift from the complainant opposite party.
(3.) Since the decision in the case of (1) Harry Jones v/s. Emperor reported in : AIR 1924 Cal 908, it has been the settled law that a bona fide but unsustainable claim raising a dispute of a civil nature which is merely not a pretence in regard to a property justify staying of action by a Criminal Court in regard to an offence committed in and in relation to such property. In Harry Jones' case the offence was under Sec. 409 of the Indian Penal Code in regard to certain immovable property. In (2) Chandi Kumar v/s. Abanidhar Roy, reported in : AIR 1965 S.C. 585, which was a case of theft of the fish from a tank, their Lordships at page 587 of the report while considering the decision in (3) S. Sanyasi Apparao v/s. Boddepalli Lakshminarayana, reported in : AIR 1962 S.C. 586 quoted from that decision the following observation with approval: -"It is settled law that where a bona fide claim of right exists, it can be a good defence to a prosecution for theft. An act does not amount to theft, unless there be not only no legal right but no appearance or colour of a legal right.";

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