Chandi Kumar Das Karmarkar And Anr. vs Abanidhar Roy on 9 October, 1963

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Not extracted

Decision Date: 9 October, 1963

Coram: B.P. Sinha, M. Hidayatullah, K.C. Das Gupta

In the matter titled Chandi Kumar Das Karmarkar and Another versus Abanidhar Roy, decided on 9 October 1963, the Supreme Court of India heard a judgment authored by Justice M Hidayatullah, with the bench comprising Justices B P Sinha, M Hidayatullah and K C Das Gupta. The two appellants, who filed the present appeal by way of special leave, had earlier been convicted under Section 329 of the Indian Penal Code. The High Court of Calcutta sentenced each of them to a fine of one hundred rupees, and, in the alternative, to simple imprisonment for one month, after overturning an earlier acquittal granted by the Additional Sessions Judge at Burdwan.

The original prosecution had named five individuals and had also implicated sixteen additional persons under Sections 147, 447, 379 and 504/352 of the Indian Penal Code. However, the first‑class magistrate at Katwa ultimately found only the two appellants guilty, and convicted them solely under Section 379, which concerns theft. The specific allegation under Section 379 was that on the thirteenth or fourteenth of January 1958 the appellants had stolen fish by fishing in a tank known as Nutan Pukur, situated in the mouza of Kutalghosh, police station Mongolkote, which the complainant Abanidhar Roy claimed to possess. Nutan Pukur is a tank whose banks, together with its wet and dry portions, cover approximately 7.21 acres, of which roughly three‑quarters is under water. In the revenue record (parcha) for mouza Kotalghosh, the two appellants together with three other persons are listed as tenants, their interest being described as “settled raiyot Mukurari”, while a superior interest of sixteen annas is shown as belonging to Banbehari Dutta and others.

Abanidhar Roy, the complainant, asserted that he had obtained possession of Nutan Pukur as a result of a five‑year bhag settlement with Sailesh Chandra Banerjee (who appears as plaintiff‑witness 2) under an Amalnama dated 15 June 1959. He explained that after acquiring possession he introduced fry into the tank and reared fish there. According to his version, the present appellants and several other individuals then caught fish on the dates mentioned, after the fish had grown to a marketable size. The appellants, on the other hand, contended that they were recorded as tenants of the tank in a jama entry for a sum of four rupees and six annas, and that they remained in actual possession. They denied having caught any fish on the two dates, and alternatively claimed that, even if they had, the act was a bona‑fide exercise of a right they honestly believed to be theirs. The complainant further narrated that the interest of the Duttas had been sold in a revenue sale and subsequently purchased by Sailesh Chandra Banerjee. He added that Banerjee had obtained possession of the tank after a decree was passed in a title suit (T S 203/1954) filed by him against the Duttas, the present appellants and certain others, in the Court of the Second Munsiff at Burdwan. The decree in that suit was rendered ex‑parte on 6 December 1954, and, on the basis of that decree, Sailesh Chandra claimed to have taken possession of the tank on 27 February 1955, as shown by a warrant for delivery of possession and the Bailiff’s report (exhibits 3 and 4).

The appellants and other defendants filed an application before the learned second Munsiff of Burdwan under Order 9 Rule 13 of the Civil Procedure Code, seeking to set aside the ex‑parte decree on the ground that Sailesh Chandra Banerjee, in collusion with certain court officials, had suppressed the summons and that the defendants had never been served with it. This matter was entered as Miscellaneous case No 64 of 1955, and on 26 July 1955 the ex‑parte decree was indeed set aside because the defendants had not been served. Banerjee subsequently appealed to the High Court by filing a revision, but that revision was dismissed on 14 January 1957. During the pendency of these proceedings Banerjee gave an undertaking that he would refrain from cutting any trees on the banks of the tank until the miscellaneous case was finally disposed of, thereby acknowledging that a dispute existed concerning both ownership and possession of the tank.

The Magistrate of the First Class at Katwa, who presided over the criminal trial, recorded his conclusion in the following terms: even if the accused sincerely believed—whether correctly or incorrectly—that the setting aside of the ex‑parte decree entitled them to possess the tank, such belief could not extend to a bona‑fide claim that they were entitled to catch the fish and retain them wholly without remunerating the bhagidar, plaintiff I, who cultivated the fish and was entitled to his half‑share. Consequently, the Magistrate found that the accused could not be said to hold a bona‑fide claim of right. In contrast, the Additional Sessions Judge of Burdwan held that the appellants were acting in the bona‑fide exercise of a claimed right and therefore could not be convicted of theft under Section 379 of the Indian Penal Code.

On appeal, the High Court noted two concurrent factual findings: first, that Abanidhar Roy had been in physical possession of the tank from 15 June 1955 as a lessee of Sailesh Chandra Banerjee; and second, that the appellants had removed fish from the tank on two separate occasions. Justice S.K. Niyogi then framed the pivotal question for determination: whether, in removing the fish from a tank that was in the complainant’s actual possession, the accused may be deemed to have taken the fish dishonestly and for the purpose of obtaining wrongful gain for themselves. He affirmed that this was the correct question to consider and, after examining the facts, concluded that the removal of the fish by the appellants was indeed dishonest and was carried out with a view to making wrongful gain. Accordingly, Justice Niyogi held that the finding of the learned Additional Sessions Judge must be set aside. The present appeal contends that the learned single Judge erred in overturning that finding.

In this case the Court explained that theft is defined as the taking of any movable property out of another’s possession without that person’s consent. A dishonest intention is present when the person who takes the property does so with the purpose of causing wrongful gain to himself or wrongful loss to the other. This dishonest purpose is described by the term animus furandi, and without that intent the offence of theft is not complete. The Court noted that fish in their natural state are classified as ferae naturae, yet they are considered to be in the possession of a person who controls the water body—such as a tank—in which the fish live and from which they cannot escape. Fish are also deemed to be in the possession of a person who holds an exclusive right to catch them in a particular location, known as a fishery, but only within the limits of that spot. Consequently, the taking of fish from a tank that belongs to another person and is under the latter’s control can constitute theft if the offender catches the fish without the owner’s consent and without any bona‑fide claim of right. The Court further observed that the ordinary principle that mens rea may exist even when a person is honestly ignorant of the law is sometimes insufficient for the offence of theft. A claim of right made in good faith, provided it is reasonable, will remove the culpability of theft. When an accused raises such a defence, the question becomes one of fact as to whether the accused truly held that belief. Referring to Criminal Appeal No. 31 of 1961, S. Sanyasi Apparao v. Boddepalli Lakshminarayana, the Court quoted the settled law that a bona‑fide claim of right can serve as a defence to a prosecution for theft, and that an act does not amount to theft unless there is not only an absence of legal right but also no appearance or colour of a legal right. The expression “colour of a legal right” was explained to mean a fair pretence, not a false one, indicating a genuine, even if weak, claim rather than a complete lack of claim. The Court then cited the authority recorded in 2 East PC 659, which states that if the accused possesses any fair pretence of property or right, or if any doubt is raised regarding the claim, the court must direct an acquittal. It also referred to 1 Hale PC 509, which held that the best evidence is that the goods were taken openly. The Court affirmed that the principles articulated by East and Hale have long governed the law of theft in India and that numerous Indian decisions have applied these principles. Niyogi J., in his judgment, also referred to some decisions of the Calcutta High Court and expressed agreement with the view in Hamid Ali Bepari v. Emperor, ILR 52 Cal 1015 (AIR 1926 Cal 149), which held that an act is not theft when a person, acting under a mistaken notion of law and believing that the property is his, removes such property from another’s possession.

In this case the Court noted that the central issue was whether the finding of the Additional Sessions Judge, Burdwan, that the appellants lacked a dishonest intention was erroneous and therefore required to be set aside. The complainant had lodged a complaint against twenty‑one persons, charging them with several offences, one of which was theft. The magistrate, however, summoned only three of the accused and framed a charge against them under Section 379 of the Indian Penal Code. Of those three, one individual was acquitted while the two appellants remained convicted. The Court observed that the complainant’s presentation of the case was heavily exaggerated. The alleged theft was said to have occurred on the thirteenth and fourteenth of January, 1958. The evidence concerning the first date was almost non‑existent, and the material presented for the second date was described as slender and of doubtful reliability. Nevertheless, the Court accepted the finding that the appellants had at least on one of those days caught fish. The accused denied having caught any fish, a denial that could have indicated a dishonest intention; however, they also introduced evidence that they had, after clearing the tank of weeds, caught fish for a religious ceremony not on the two dates alleged but four days earlier. They claimed that this act was undertaken under a bona‑fide claim of right, a plea that the Additional Sessions Judge, Burdwan, had accepted. Judge Niyogi subsequently reversed that finding after taking into account additional circumstances. He discarded the evidence of the Record of Rights on the ground that there was no proof that the entry had been made before the alleged occurrence or that it had influenced the appellants to believe sincerely that they possessed a right to the tank and its fish. He also referred to the possession obtained by the appellant Sailesh Chandra Banerjee under an ex parte decree, noting that, according to his observation, that possession continued. Moreover, the Judge pointed out that the appellants caught fish only when the fry had reached the appropriate size and that there was no assertion of any right on any earlier occasion. The Court further observed that there existed a dispute between the parties which had not yet been decided by the Civil Court. The facts indicated that the decree had been obtained by unfair means and that the possession was tainted by fraud. Although setting aside the ex parte decree would not automatically revert possession without restitution proceedings, the circumstances were such that the appellants might reasonably have believed that their possession had been restored. That belief was not diminished by the grant of a temporary injunction and its subsequent withdrawal based on the assurance given by Sailesh Chandra Banerjee that, during the pendency of the proceedings, he would not exercise certain ownership rights.

In the proceedings, the Court observed that Sailesh Chandra Banerjee had undertaken not to exercise certain ownership rights over the tank during the pendency of the civil suit. The Court further held that any agreement reached between Abanidhar Roy and Sailesh Chandra Banerjee while the civil case was ongoing could not bind the appellants, because the appellants were not parties to that transaction. Consequently, a genuine dispute continued to exist, and the Court recognized that a rival claim to the tank was still alive. Under these circumstances, the Court found it plausible that the appellants, believing that the earlier ex parte decree had been set aside and relying on the undertaking given by Sailesh Chandra Banerjee, regarded themselves as the lawful tenants entitled to harvest fish from the tank for use in a ceremony at their residence. The fact that the fish were taken only on one occasion did not, in the Court’s view, demonstrate a lack of good faith; rather, it supported the inference that the appellants acted honestly. The Court dismissed the allegations that the incident involved an unlawful assembly, a riot, the use of force or threats, noting that such assertions were not credible and that the fish were removed openly with nets from the large tank. The Court then concluded that the requisite intention to steal, known as animus furandi, was absent. Applying the principle that the taking of movable property in the honest assertion of a bona‑fide claim of right, even if it results in a civil injury, does not constitute the offence of theft, the Court held that the acquittals of the appellants should not have been set aside. Accordingly, the Court allowed the appeal, set aside the convictions, and ordered that the appellants be reinstated to an acquitted status. Finally, the Court directed that any fines that had been collected be returned to the appellants.