JUDGMENT

Srivastava, J - The applicants Gudar, Ram Das and Ram Deo were convicted toy a Magistrate, First Class, of the Fyzabad district of an offence under Section 379, I.P.C., and sentenced to pay a fine of Rs. 100 each, in default of payment of which each of them was to undergo two months' rigorous imprisonment. They applied in revision to the Sessions Judge of Fyzabad but the application was rejected. They have now applied for revision to this Court.

2. The facts of the case are that the complainant purchased the crops of some mango trees standing on plot No. 200 for Rs. 7 from the Talukdar of Sumanpur estate. The applicants removed some of the fruit of these trees which has been gathered by the complainant. It is contended, in the first place, that the conviction of the applicants under Section 379, I.P.C., is bad in law, as they were the owners of the trees in question. Refer-ence has been made to a number of decided cases in which it has been held that a person who has a bona fide claim to a property even though it might be unfounded in law or fact cannot be held to to be guilty of the offence of theft unless the claim was a mere pretence. In my opinion the present case is distinguishable. The question whether a person has a bona fide claim to title in the property must be determined on the facts and circumstances of each case. It has been pointed out by the learned Sessions Judge that there had been several litigations between the applicants and the talukdar in regard to the trees in dispute and that the applications had always been unsuccessful. In one of these litigations it was decided by the Assistant Record Officer that the entry in the Khasra of 1301-F which was relied on by the applicants was wrong and that the applicants had no right to have their names entered in respect of plot No. 200 as grove-holders. It is true that the order of the Revenue Court is not final but I am not prepared to say that in the circumstances of this case after it had been decided by the Revenue Court that their claim in respect of plot No. 200 was not justified it is possible to say that they had a bona fide claim of title to the property.

3. Next it was said that the Magistrate acted improperly in trying the accused for an offence under Section 379, I.P.C., when the complaint shows that the offence was really one of rioting. It has been argued that a Magistrate is not justified in minimizing a serious offence in order to enable him to try it summarily. I do not think that the proceedings of the Magistrate are justly open to this objection. The complaint does not make mention of the fact that the applicants, when they removed the mango fruit, also threatened the complainant with causing hurt to him but as a matter of fact no hurt was caused and this statement was merely an embellishment, the real offence charged being one of theft. This case was of a petty character, and I have little doubt that the Magistrate exercised his discretion properly in trying the applicants for the offence of theft and not for that of rioting. Lastly as regards the question of sentence. In my opinion the fine of Rs. 100 against each of the three accused is much too excessive. The entire crops of the trees had been purchased by the complainant for a sum of Rs. 7 only. I think taking all the circumstances into consideration a fine of Rs. 5 against each of the accused will meet the requirements of the case. I reduce the sentence accordingly and direct that the excess of fine paid will be refunded.