JUDGMENT

1. This is a reference by the Deputy Commissioner of Sibsagur u/s 438 of the Criminal Procedure Code, questioning the legality of the conviction of one Niohala Katani and three others by Mr. Melitus, Assistant Commissioner of Sibsagur, under Sections 379 and 447 of the Indian Penal Code.

2. The accused in this case were charged with the offence of theft said to have been committed in respect of fish in a tank belonging to the complainant, and also with the offence of criminal trespass.

3. The Assistant Commissioner in the first instance, i.e., on the 1st August last, dismissed the complaint u/s 203 of the Procedure Code with the following observations:

4. Complainant did not cultivate the fish; they entered the tank in flood time. Therefore according to a High Court ruling (in the Meherpore case (1)), they are ferw natures and no man's property, and no offence (such as theft or trespass) has been committed. The circumstances of the tank and of the Chucka Khola Bheel (which I know) are identical, except that the Chucka Bheel is of larger area. This tank is a tank in the father connected with the river by jans and hollows; so is the Chucka Khola Bheel. Complaint dismissed u/s 203 of the Criminal Procedure Code. If complainant wishes, I will refer this case to High Court for orders.

5. On the 12th of August the Assistant Commissioner took up the matter again, although the complainant did not apparently move him to refer the matter to higher Court ; and in a proceeding which he recorded on that day, he repeated that the "circumstances of the bheel in the Meher-pore case and the tank of the complainant were identical so far as the dominion and control of the owner of the tank or bheel over the fish is concerned," the only differences being, as ha said, that the Meherpore Bheel is of larger area, and is a natural bheel, whereas the tank in this case is "partially at least excavated;" and then he observed that "what-ever law applies to the Chucka Khofa Bheel applies also to this tank and to other private tanks and bheels, and to the numerous public bheels and rivers which are held under emporary fishery leases from Government." Having made this observation, the Assistant Commissioner said as follows: "The Meherpore case has not been, so far as I know, authoritatively reported, and I doubt if I was right in accepting mere newspaper reports and the statement of the law, which conflicts with previous rulings and practice, especially as it appears from the newspapers that the High Court held in 1886 (1) in the matter of the same Cbucka Khola Bheel that the offence of theft u/s 379 would have been committed if the fish had actually been removed from the bheel. In the present complaint of Maya Ram Surma, it appears that the fish had not merely been moved in order to the taking, but actually removed and taken away from the tank. The matter is one of such importance to Government and the public that I do not feel justified in allowing this complaint to remain struck off on my own authority. 1 request the favour of the definite instructions for future guidance. To D.C. for orders."

6. The above proceeding being laid before the Deputy Commissioner, Mr. Wight--the same officer who has made the present reference--he recorded the following order on the 22nd August:

In the present state of the record I am unable to refer the matter to the High Court. The High Court are not the legal advisers of Government, and they have invariably refused to act as such. They only deal with cases and pronounce judgment upon them when they are brought judicially under their notice. You have dismissed the case u/s 203; I think you are wrong. The ruling you refer to is that of a Division Bench, and there are rulings in the opposite sense. Please take up the case and enquire into it. If you acquit on the evidence, or if you convict, the matter would he dealt with and referred to higher authority if necessary. Having power to deal with cases dismissed u/s 203 myself,