1. Conviction under Section 379, Indian Penal Code for theft of fish from a tank amidst a dispute over tenancy and possession. (Para 1 , 2 )
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1963 Supreme(SC) 242
SUPREME COURT OF INDIA
B.P. SINHA, C.J.I., M. HIDAYATULLAH AND K.C. DAS GUPTA, JJ.
Chandi Kumar Das Karmarkar and an other, Appellants
Versus
Abanidhar Roy, Respondent.
Criminal Appeal No. 214 of 1960.
Advocates appeared
M/s. Nuruddin Ahmed and B. P. Maheshwari, Advocates, for Appellants; Mr. S. C. Mujumdar, Advocate, for Respondent; M/s. P. K. Chatterjee, Advocate for Mr. P. K. Bose Advocate, for the State of West Bengal (Upon notice being issued).
Advocates:
B.P.MAHESHVARI, Nuruddin Ahmed, P.K.BOSH, P.K.CHATTERJI, S.C.MAJUMDER
B.P.MAHESHVARI, Nuruddin Ahmed, P.K.BOSH, P.K.CHATTERJI, S.C.MAJUMDER
Theft requires animus furandi (dishonest intention). A bona fide claim of right, even if weak or based on a mistaken notion of law, negates this intention and serves as a valid defense against a charge of theft.
Headnote:(A) Indian Penal Code - Section 379 - Theft - Dishonest intention - Bona fide claim of right - Removal of fish from a tank - Animus furandi - An act does not amount to theft unless there is no legal right and no appearance of colour of a legal right (Paras 4, 5).
(B) Theft - Fish - Fish in their free state are regarded as ferae naturae but are in the possession of a person who has possession of an expanse of water such as a tank from where they cannot escape (Para 4).
(C) Bona fide claim of right - A claim of right in good faith, if reasonable, saves the act of taking from being theft; it is a question of fact whether such belief exists (Para 5).
Facts of the case:
Appellants were convicted of theft for catching fish from a tank. The possession of the tank was under dispute. An ex-parte decree in favor of the complainant's lessor had been set aside. The appellants, being recorded tenants, claimed they caught the fish under a bona fide belief of their right to do so.
Findings of Court:
The court found that the dispute over ownership and the setting aside of the ex-parte decree created a reasonable belief in the appellants' minds that they were entitled to the fish. The act was done openly, indicating an absence of dishonest intention.
Issues: Whether the removal of fish from a tank in the actual possession of another constitutes theft when the takers act under a bona fide claim of right.
Ratio Decidendi: Theft requires animus furandi (dishonest intention). Where a person acts under a bona fide claim of right, even if based on a mistaken notion of law or a weak claim, the essential element of dishonesty is missing, and the act does not constitute theft.
Result: Appeal allowed.
Legal Category Hierarchy
Table of Contents
2. Whether the removal of fish from a tank in the possession of another was done dishonestly for wrongful gain or under a bona fide claim of right. (Para 3 , 8 )
3. The existence of a genuine dispute over possession, the fraudulent nature of the prior ex-parte decree, and the open nature of the act negate dishonest intention. (Para 7 , 9 )
4. A bona fide claim of right, even if weak or based on a mistaken notion of law, negates the dishonest intention required for theft. (Para 4 , 5 , 6 , 10 )
5. Appeal allowed; conviction set aside and appellants acquitted. (Para 10 )
6. What constitutes the essential element of dishonest intention in theft?
Theft requires animus furandi, which is the intention to cause wrongful gain to oneself or wrongful loss to another. Without this dishonest intention, the offence of theft is not complete. (Para 4 )
7. How does a bona fide claim of right affect a prosecution for theft?
A bona fide claim of right, if reasonable or presenting a fair pretence of a legal right, however weak, serves as a valid defence and prevents the act from being classified as theft. (Para 5 )
8. Does a mistaken belief regarding legal ownership preclude a finding of theft?
Yes, it is not theft if a person, acting under a mistaken notion of law and believing that certain property is theirs and they have the right to take it, removes such property from another's possession. (Para 6 )
9. Are fish in a tank considered moveable property capable of being stolen?
Yes, fish in a tank are regarded as being in the possession of the person who has possession of the expanse of water where they live and from which they cannot escape. (Para 4 )
Judgment
HIDAYATULLAH, J. :
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 (P. 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."
