D. E. Cranenburgh.

A handbook of criminal cases containing a verbatim reprint of all criminal cases reported in vols. I. to XVI., Calcutta series, I. L. R. [1876-1889] online

. (page 123 of 166)
Online LibraryD. E. CranenburghA handbook of criminal cases containing a verbatim reprint of all criminal cases reported in vols. I. to XVI., Calcutta series, I. L. R. [1876-1889] → online text (page 123 of 166)
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* Criminal Revision, No. 263 of 1886, against the order pai^sed by H^vling Luson,
Esq., Assistant Magistrate of Meherpore, dated the and June iSfUdi, .



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CALCUTTA SERIES. VOL. XV. 8ai



Some other rulings are cited as to fisheries in the sea or in tidal rivers
which do not bear upon the case. The Bhagdai or Desoi is a river navigable
for small boats i6t a part of the year.

The sum total of these rulings is : {a) [except the Meherpore case (1887)]



BHAGlttAM

Dome

it appears to be admitted that fish in a river or in an open tank or bheel are ^^^^ j^^^

the property of the holder of the fishery ; ib) but they are not in such " posses- ^ ^^ '

sion " that their taking constitutes theft (s. 379) ; (r) that trespass on a fishery ^ * -* *-
in a public river is not criminal trespass, the river not being in the exclusive
possession of the fishery-holder, and the public having the right of entry on it.

These rulings, are rulings of Divisional Benches. So far as I know, the
matter has never been fully argued„or referred to a Full Bench.

It is contended for the prosecution that the facts constitute offences under
the following sections of the Penal Code : —

S, 379 of the Penal Code— Theft, - li is said that all the essentials of theft
•xist. I examine each essential in detail : —

icL) " Moving in order to take!' — This appears on the finding : each ac-
cused moved a fish from their net to their boat. From the newspaper reports
of the Meherpore case of 1886 it appears that the High Court held that the
offence of theft would only be completed if the fish were actually removed from
the bheel, but probably the newspaper reporter was mistaken. Under s. 378 of
the Penal Code the offence of theft is completed when the property is moved.

(3) " Dishonestly^ — Accused had no title to this fish ; they knew the
fishery to be leased to comp}5:tnant. These were wrongful gain to themselves,
loss to the lessee, and loss to Government from tendency to diminish revenue.

(c) ^^ Moveable property!' — It seems admitted in the rulings above men-
tioned (except, so far as I can judge from newspapers, in the Meherpore case)
that fish in a fishery is thf* property of the fishery- holder. The fishery-holder



the contrary, that one of them pleaded guilty, and that the others merely pleaded alibis.
As regards the latter be disbelieved the evidence adduced on their behsilf, and, without
considering the legal questi3n subsequently raised In the High Court, convicted all the
accused, and sentenced them, some to fines, others to imprisonment, and the remainder
to a whipping, and awarded Rs. 15 to the complainant as compensation under s. 545 of
the Criminal Procedure Cede.

Against these sentences the accused applied to the High Court to set aside the con-
victions under its revisional power on the ground that no olFence had been committed.
That application was granted, and the record sent for. Upon the case coming on to be
heard, Baboo Doorga Doss Dutt appeared for the petitioners, and Baboo Sharoda Prosunno
Rey for the opposite party, who was the complainant before the Assistant Magistrate.

The judgment of the High Court (Mitter and Grant, JJ.) was as follows : —

We think that there is 00 evidence in support of the conviction in this case under
either of the sections under which the petitioners have been convicted, «»>., ss. 143 and
379. There is no evidence to establish that the petitioners acted in concert so as to have
one object. No doubt, the act complained of was that they were fishing, but there is nothing
on the record from which it could be inferred that they \i^te, acting in concert with that
one common object. Unless that is proved, the conviction cinder s. 143 of the Indian
Penal Code would be illegal. On the other hand, the circumstances of the case would
tend to show that they were acting quite independently. Similarly, under s. 379 there is
no evidence to show the removal of any fish by the petitioners from the bheel.

We therefore set aside the convictions under both these actions, and direct that the
fines, if realized, be refunded, and if any one of these petitioners be still in jail under these
seateacts we direct their immediate release. The order regarding compensation will also
be set aside, and such compensation-money> if paid, must be refunded.

Conviction quashed.



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822



INDIAN LA W REPORTS.



Bhagiram

DOITE



1888. can recover in the Civil Court the value of the fish taken without his consent.
By the customary law of the country property in river fisheries (other than Udal
rivers) vests in Government, and can be leased by Government to private per-
sons, and, if so, the fish in the fishery are the properly of the lessee. Theft of
*" fish from a fishery in England would not be a larceny at com mom law, but

Abar Domb^ neither would theft of trees, crops, fruit, &c., be larceny, though it is undoubtedly
isCal. 388. theft under the Penal Code. The Penal Code is based on English criminal
law ; but the laws relating to real property in this country follow the old land
laws of the country, which recognize fish in a fishery to be the property of the
owner of the fishery. Hence they^r^ naturm theory does not apply to fish in
this country, though it does apply to wild birds and animals. Fishings of large'
and small rivers, bheels, &c., have been settled on this understanding from
1793 downwards.

[d) " Out 0/ possession" — It is urged {a) that the fish in the fishery was in
' the possession of complainant, the lessee in possession of the fishery. This is

negatived by the two Madras rulings and the Meherpore ruling of 1887, in
which it was held that this kind of constructive possession is not f>ossession
within the meaning of s. 378 of the Penal Code ; {b) that complainant might,
at any time he thought proper, have confined the fish within a limited sheet of
water. It is the custom, as the fioods subside, to put bamboo fencing across
the bed of the river and other outlets so as to shut in the fish. When this is
done, the fish are in possession ; but the question is whether complainant, hav-
ing the right and the power to put up the fencing whenever he thinks proper,
is not to be considered in possession of the fish, whether he actually fences
them in or not. I doubt if this has ever been brought before the High Court.
It is the general custom with small rivers and bheels. I am inclined to think
that complainant, having the power to shut in the fish whenever he pleased in
as small a space as he pleased, must be held to be in possession of the fish,
whether he actually shuts them in or not. In the present case the fencing had
not been put up on the date of occurrence, as it does not pay to put it up till
towards the end of the rains.

[e) " Without consent" — Consent was wanting on the finding. Moreover,
complainant objected at the time with the result of being threatened.

*S". 403 0/ the Penal Code, — The only point that may be considered want-
ing to constitute theft is the possession. The fish being complainant's proper-
ty, even assuming they are not in his possession, an offence under s. 403 of the
Penal Code has been committed. Accused dishonestly misappropriated the
fish, knowing their action to be an infringement of the property rights of the
holder of the fishery. If evidence of actual removal is wanting, the facts on
the finding show an attempt ; ss. 403 to 5 1 1 of the Penal Code. At any rate,
they entered upon the fishery with the intention of criminally misappropriating
the fish. The applicability of s. 403 of the Penal Code has apparently never
been considered by the High Court.

8,426 of the Penal Code, — Accused committed mischief by removing the
fish supply of the fishery and thus diminishing the value of the fishery. The
mere fact of accused taking a fish each would not affect the fishery much ; but
if every one acted on the same principle, the fishery would be injuriously af-
fected, and its value materially diminished. It may be a matter of doubt whe-
ther a fishery is "property" under s. 425 of the Penal Code. In Empress v*
Charu Nqyiah^ it is laid down that the fishery of a public river is property

» I. L. R., 2 Cal. 354.



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CALCt/tTA SERIES. VOL. XV. 82J

within the meaning of s. 411 (but that the river being a public one was not in • i888;

any one's exclusive possession, and a man's entry on a public river to infringe *

a fishery right is not criminal trespass, because he does not enter upon property ^"agiram
in the possession of another). If a fishery is properly under s. 441, I presume Dome
It is also property under s. 425. ^»

S. 447 of the Penal Code,—^\i^ question is whether in the face of the ^^^^ f^*"^'
above ruling a finding of criminal trespass can hold. In an exactly similar *sCal. 388.
case — Proceedings, tsth February i8yo^ — it was held that the offence of cri-
minal trespass had been committed. *' Where in a ryotwari district the accused
cultivated waste land which they had been ordered by the Collector not to
cultivate, it was held that they were properly convicted of criminal trespass
when they entered on it to commit an offence under s. 188." Waste land in a
ryotwari tract is in no one's exclusive possession. It is in the possession of
Government just as a river is in the possession of Government. The public
have the right of entry on, and right of way over, waste land as long as it con-
tinues waste land, just as they have the right of entry on a river for travelling
or recreation, or bathing or drawing water. If it is criminal trespass to enter
upon waste land to commit an offence, it seems to be equally criminal trespass
to enter on a river to commit an offence. In the present case the entry is
criminal trespass, as it was made with intent to (a) commit mischief, s. 426;
(J)) criminal misappropriation, s. 403 ; {c) theft, s. 379.

•S". t42 of l^^ Penal Code. — There is no evidence that accused and others
had actually conspired to fish there, but when a number of persons do the same
"wrongful ad in the same time, place, and manner, a common intent must be
presumed. In this case twelve persons were fishing near each other at the same
time near complainant's julkar, to which they had no right, without his consent,
and on being told to stop refused to do so; some of them threatened complainant.
It is a fair and reasonable presumption that they had a common intent, at lease
after they were told by complainant to stop. The presumption is strengthened
by the faft that Domes generally fish in numbers and not singly. Their common
intent was to commit (a) criminal trespass, s. 447 of the Penal Code ; {b) mis-
chief, s. 426 ; {c) theft, s. 379 ; {d) criminal misappropriation, s. 403.

Ss. $04, $06 of the Penal Code. — On being told by complainant to stop
fishing, accused threatened him "• Marten Gosari halai tau baha^ as much as to
say : "We will beat you within an inch of your life'* — an expression of intention
which might be either insulting under s. 504, or criminally intimidating under
s. 506 of the Penal Code, according to the character of the person addressed.
In the present case it appears to have caused an alarm.

1 think therefore accused are guiliy of offences under s. 143, 379, 426, 403,
447» 504* or 506 of the Penal Code. S. 403 of the Penal Code is not sum-
marily triable, but the offence under ss. 143, 447 of the Penal Code, where the
intent is to commit an offence under s. 403, are triable summarily."

No one appeared on the reference.

The judgment of the High Court (Norris and Ghose, JJ.) was as fol-
lows: —

This is a reference by the Deputy Commissioner of Sibsagur under s. 438
of the Criminal Procedure Code, questioning the legality of the conviction of
Abar Dome and Bhagiram Dome by Mr. Melitus, Assistant Commissioner of
Sibsagur, under ss. 143', 379, 426, 447, and 506 of the Indian Penal Code.



1 5 Mad. H. C. R. Ap. XVII.



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834



INDIAN LA W REPORTS.



i«88. The two accused were charged before the Assistant Coaunissioner under

^ ss. 143, 379, and 447 ; and apparently they were called upon to make thdr

Bhagirah defence in respect only to offences said to have been committed under those
l^o^'B sections. It appears, however, that the Assistant Commissioner, in the coarse
"• of his judgment, finds them guilty, not only of the offences of which they were

Abar Domb, charged, but of others as well.

IS OAk 3S8. jjj^ main charge was one of theft, said to have been committed in re-

spect of fish in a public river, the j'uikar right in which had been leased to the
complainant by Government ; but there were, as mentioned above, charges m
respect of other offences, m., for being members of an unlawful assemblj and
for criminal trespass.

The Assistant Commissioner tried the case summarily, and, after giving
in his proceeding a short epitome of the evidence taken by him, proceeded 10
give his judgment. In the first place, he notices the ^rounds upon which it
was contended before him that no offence had been committed ; and he then
summarises the decisions of this Court, and of the Madras High Court, that
were quoted before him as follows : —

" The sum total of these rulings is — (a) (except the Meherpore case, 1887)
it appears to be admitted that fish in a river or in an open tank or bheel are
the property of the holder of the fishery ; (6) but they are not in such posses-
sion that their taking constitutes theft, s. 379 ; {c) that trespass on a fishery in
a public river is not criminal trespass, the river not being in the exclusive pos-
session of the fisher)'- holder, and the public having the right of entry on it/'
He adds : ** These rulings are rulings of Divisional Benches. So far as I know,
the matter has never been fully argued, or referred to a Full Bench.'*

Then the Assistant Commissioner says that it is contended before him
for the prosecution that the facts proved in the case constitute offences under
various sections of the Penal Code, and he gives those sections one after an-
other, an<J his argument for holding that the accused ure guilty under those
sections. The sections are 379 (theft), 403 (criminal misappropriation), 426
(mischief), 447 (criminal trespass), 504 or 506 (insult or crimmal intimidation).

Now, the first observation which we have to make upon this judgment of
the Assistant Commissioner is that, if the rulings referred to by him lay down
the propositions indicated by him, it was his bounden c}uty to follow them so
far as they were applicable to this case, and not to disregard them, as he evi-
dently does, on the ground that they are rulings of Divisional Benches, and
also on the ground that, so far as he knows, '' the matter has never been fully
argued." Where the Assistant Commissioner derives this knowledge from, we
are at a loss to conceive. But, whether the matter was fully argued or not, the
Assistant Commissioner was bound to follow those rulings as ruHngs of the
highest Court in this presidency until they were overruled by decisions of the
Full Bench.

In the present case, the river from which the fish were taken is a public
Fiver. Whether or no it is navigable throughout the year, we do not know.
The Assistant Commissioner, however, says (for which there is no evidence on
this record) that it is a '' river navigable for small boats for a part of the year.**
Assuming that it is, as the Assistant Commissioner represents, we take it that
it is a flowing river, and that fish enter it, and leave it, at their pleasure; and
that the lessee of the fishery has no control whatever* over them. The fish
are not stored or bred there ; they are not confined within an enclosed space,
and are therefore free to go wherever they please. They zre/era na/ura, and



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CALCUTTA SERIES. VOL. XV.



825



as snch nobody can be said to be in " possession'' of them, and therefore no
theft can be committed in respect to such fish. This is not only the common
law in England, but it is a law which has been accepted both in Bengal and
Madras for many years. (See Kashi Chunder Doss v. Hurkishore Doss} Bhusun
JParuiv. Denonath Banerjee,^ Khetter Nath Dutt v. Indro Jalia? Empress v.
Charu Nayiah^^ The Queen v. Revu Pothaduf^ Russell on Crimes and Misde-
meanours, Vol. IL, p. 376.)

The Assistant Commissioner, however, while discussing s. 379, says, broad-
ly, but apparently without any authority, that the **/ercB naiurce theory does
not apply to fish in this country, though it applies to wild birds and afiimals ;"
and that '' fishings of large and small rivers, bheels, &c., have been settled on
this understanding from 1 793 downwards." No doubt, fishery is a right which
is recognized as property in this country ; but the question is whether fish in a
river can be said to be property in the " possession " of the person who may
have the fishery right, and whether the infringement of that right is a criminal
offence as defined in s. 378 of the Indian Penal Code. We are decidedly of
opinion that it is not.

We observe that the Assistant Commissioner, while he felt himself pressed
by the authority of the Meherpore case of 1887 and two Madras cases quoted
before him, sought to get over them by saying that it Is the custom as the floods
subside to put bamboo fencing across the bed of the river and other outlets so
as to shut in the fish, and that *' in the present case the fencing had not been put
up on the date of occurrence, as it does not pay to put it up till towards the end
of the rains." We do not know in what sense the word custom is used ; but
taking it in the sense that it is in some cases the practice to put up fencing
when the floods subside for the purpose of shutting up the fish, and supposing
that the fish are thus shut up, they are in the " possession " of the owner of the
julkar, that argument cannot possibly avail in this particular case, for the of-
fence is said to have been committed in the month of September, while the
floods must have been high, and when, as the Assistant Commissioner himself
says, no fencing had been put up.

The next ofiFence which the Assistant Commissioner holds that the accus-
ed are guilty of is one under s. 403 (criminal misappropriation). There was
no charge under this section, and indeed there could not be any, because the
accused were tried summarily. The Assistant Commissioner, however, pro-
ceeds to hold that an oSence under that section has been committed, though
he does not convict the accused under that section by reason of its being a sum-
mary trial : and he observes that '* the applicability of s. 403 of the Penal C>>de
has apparently never been considered by the High Court." The Assistant Com-
missioner may or may not be right in this ; but if the point has never been con-
sidered, it is because nobody ever thought of raising it before. Criminal mis-
appropriation takes place when the possession has been innocently come by, but
where, by a subsequent change of intention, or, from the knowledge of some
new faft with which the party was not previously acquainted, the retaining be-
comes wrongful and fraudulent (see Mayne, p. 335). In this particular case
there cannot be any pretence for saying that subsequent to the ad of taking
the fish anything happened which constituted the retaining of the fish wrong-
ful and fraudulent. The intention was one and the same throughout ; and no



1888.



> 19 W. R. Cr. 47.
» 30 W. R. Cr. 15.



» I. L. R., 5 Mad. 390.



» 16 W. R. Cr. 78.
* I. L. R., 2 Cal. 354.

I. L. R.| Cal. 104.



Bhaoiram

DONB

V.

AbAR DONBf

15 Cat 388.



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826 INDIAN LA W REPORTS.

1888. new facts occurred which could possibly change the character of the seizure and
' retention of the fish.



Bhagiram
Dome



The next section that the Assistant Commissioner discusses is s. 426 (mis-
chief), and he holds that the ad complained of diminished the '' value of the
^* fishery/* and that fishery is property within the meaning of s. 425, and that

AbarDomb, ^j^gpgfQj-g ^Q accused are guilty under s.426. The accused had not been
15 Cal. 388. ciiarged with an offence under s. 426, and we think that in respect also of this
section the Assistant Commissioner is completely in error. If it was a flowing
river, and on the date of occurrence the flood was high, as it must have been
in September, and if no fencing had been put up to shut up the fish in any
manner, and they were free to escape in any direction they pleased, we fail to
see how the ad of the accused could possibly diminish the value of the fishery,
or cause any change in the property, supposing that fishery is property within
the meaning of s. 425, as the Assistant Commissioner holds it to be.

The Assistant Commissioner then takes up s. 447 (criminal trespass), and
holds, in the face of the rulings of this Court, that an offence under that sec-
tion has been committed ; and the only pretence for his doing so is a decision
of the Madras High Court [Proceedings^ isih February iS^o^'], which refers
to the case of waste land belonging to Government, and devoted to the use of
the village community ; and where the accused cultivated the land, although
he had been ordered by the Sub-Collector to refrain from cultivating it ; and it
was held that the Sub-Collector had legally the power to make the order, and
therefore when the accused went upon the land he did so with the intent <rf
committing an offence under s. 188 of the Penal Code. In the first place,
that case has no application to this case ; and in the second place, supposing
it has any application, the Assistant Commissioner was bound to have guided
himself by the rulings of this Court, and not by any rulings by the Madias
High Court. We may here observe that, throughout his judgment in this case,
the Assistant Commissioner has displayed a clear and deliberate intention to
ignore the decisions of this Court — a spirit which cannot but be deprecated in
a Judicial Officer who is bound to follow the decisions of the superior Court.

We are of opinion that, the river being a public one, it was not in the ex-
clusive possession of the complainant, and that the entry of the accused upon
that river was not with the intent of committing any of die offences mentioned
by the Assistant Commissioner, viz., criminal mischief, criminal misappro-
priation, or theft.

The next section that the Assistant Commissioner takes up is s. 143 (un-
lawful assembly). It is sufficient to say that there is no evidence upon the re-
cord of this case to indicate that the men who went to fish in the river were
bound by any common object within the meaning of that section ; and for aught
that appears, although more than five persons were engaged in fishing at the
same time, place, and manner, they were engaged for their own respective pur-
poses, and no common object can legitimately be presumed from their acts.

The last sections that the Assistant Commissioner takes up are 504 and
506 (insult and criminal intimidation). The accused were not charged with
any offence under either of these sections, and so far as s. 504 was concerned,
there is no evidence that the insult, if there was any, was offered with the in-
tention or knowing it to be likely that the provocation given would cause the
person insulted to break the peace ; nor do we think there is sufficient evidence

» S Mad, H. C. Ap. XVII.



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CALCUTTA SERIES. VOL. XV. 827

in this case as would bring the case within the offence of criminal intimidation t888.
as is defined in s. 503. _

Having now discussed the various sections of the Indian Penal Code un- dquk

der which the Assistant Commissioner held the accused were guilty, we have

merely to say that the conviction must be set aside, and the fine, if paid, must ^ ^'

be refunded. ^. !!'

15 Cal. 388.
We cannot, however, close this judgment without once more saying that

throughout this case the Assistant Commissioner has displayed a wanton dis-
regard of the authority of the rulings of this Court, which cannot but be gravely
censured.

H. T. H.

Conviction quashed.

CRIMINAL REFERENCE.
Before Mr, Justice Norris and Mr, Justice Ghose.
MAYA RAM SURMA (Complainant) v. NICHALA KATANI and others .ggs

(ACCUSED).I y^^l^



Fishery^^Fishing in tank connected with a running stream-^Theft-^'Criminal .eCal d^
trespass — Penal Code, ss. j^g, 44^. ' ^^'

Accused were charged with having taken fish from a tank belonging to the complain-



Online LibraryD. E. CranenburghA handbook of criminal cases containing a verbatim reprint of all criminal cases reported in vols. I. to XVI., Calcutta series, I. L. R. [1876-1889] → online text (page 123 of 166)