Hidayatullah, J. - (1.) The two appellants who have filed this appeal by special leave have been convicted under S. 379, Indian Penal Code and sentenced to a fine of, Rs, l00/- each or in default of fine to suffer simple imprisonment for one month by the High Court of Calcutta after reversing their acquittal by the Additional Sessions Judge, Burdwan. Originally five named and sixteen un-named persons were charged under Ss. 147,447,379 and 504/352, Indian Penal Code but the Magistrate lst Class Katwa convicted the two appellants under S.379, Indian Penal Code only. The charge under S. 379, Indian Penal Code against them was that on 13th and or 14th day of January 1958, they committed theft of fish by fishing in a tank called Nutan pukur in Kutalghosh mouza P. S. Mongolkote which was in the possession of the complainant Abanidhar Roy, the Respondent before us. Nutan pukur is a tank which with its banks and wet and dry portions measures about 7.21acres. The water covers about 3/4 of the area. In the Parcha of Mouza Kotalghosh, the two appellants with three others are shown as tenants with their interest described as "settled raiyot Mukurari" and the sixteen annas superior interests described as belonging to Banbehari Dutta and others.
(2.) The complainant Abanidhar Roy claimed to be in possession of Nutan pukur as a result of bhag settlement for five years with Sailesh Chandra Banerjee (page No. W. 2) under an Amalnama dated June 15, 1959. His case was that after obtaining possession he had reared fish in this tank putting in fry but the present appellants some others caught fish on the above-mentioned dates after fish had grown to be right size. The defence of the appellants was that they were recorded as tenants in respect of this tank under a jama if Rs. 4/6/- and were in possession. They denied that they caught fish on the two dates or at all and in the alternative contended that even if they did, it was in the bona fide exercise of their claim of right. The complainant stated that the interest of the Duttas was sold in a revenue sale and was purchased by Sailesh Chandra Banerjee and further that Banerjee had obtained possession of the tank after a decree in a title suit filed by him against the Duttas and the present appellant and some others. That suit was T. S. 203/1954 in the Court of the Second Munsiff, Burdwan. The decree in that suit was passed ex-parte on December 6, 1954. On the strength of that decree Sailesh Chandra claimed to have obtained possession of the tank on February 27, 1955 (vide warrant for delivery of possession and Bailiff's report Exh. 3 and 4). The appellants and some other defendants however moved the learned second Munsiff, Burdwan under Order 9 R. 13, Civil Procedure Code to set aside the ex-parte decree on the averment that Sailesh Chandra Banerjee in collusion with certain court functionaries had suppressed the summons and it was served on the defendants in the case. That case was registered as Misc. case No. 64 of 1955 and on July 26, 1955, the ex-parte decree was set aside on the ground that the defendants were not served. Sailesh Chandra Banerjee filed a revision application in the High Court but it was dismissed on January, 14, 1957. During these proceedings Sailesh Chandra Banerjee had given an undertaking that he would not cut down any trees on the banks till the disposal of the miscellaneous case thereby admitting that there was a dispute with respect to the ownership and possession of the tank.
(3.) The Magistrate lst Class, Katwa who decided the criminal case stated his conclusion thus: "even it the accused bond fide believed, rightly or wrongly that as soon as the exparte decree was set aside, they were entitled to possess the tank, they cannot be regarded as to have bona fide believed that they were entitled to catch fish and take it wholly without giving the bhagidar P.W. I. who grew the fish his half share. So I find that the accused are not entitled to come under a bond fide claim of right." The Additional Sessions Judge, Burdwan held that the appellants had acted in the bona fide exercise of their claim of right and they could not be held guilty of an offence of theft under S. 379, Indian Penal Code. The High Court on appeal pointed out that the two concurrent findings were that Abanidhar Roy was in physical possession of the tank from June 15, 1955 as a lessee from Sailesh Chandra Banerjee and that the appellants had caught fish from the tank on two dates. On these findings Mr. Justice S. K. Niyogi posed the questions which arose for decision in the case in the following words: "So the important question that arises for decision is whether in removing the fishes from the tank in the actual possession of the complainant the accused persons may be said to have caught the same dishonestly and the said removal was for the purpose of making wrongful gain to themselves." This question was the right question to consider. Niyogi J. on an examination of the above facts held that the removal of fish by the appellants was dishonest and they did it with a view to making a wrongful gain to themselves and that the "finding of the learned Additional Sessions Judge must be interfered with". In this appeal it is contended that the learned single Judge erred in reversing this finding.;