Sant Ram @ Santu vs State of M.P.

N.P. Singh, J.

The applicant was prosecuted for offences under Sections 379 and 447 IPC, for tresspassing in the field and harvesting the paddy crop of the complainant. Radhabai and he convicted thereunder and sentence to undergo R. I. for one year u/s 379 IPC. and to pay fine of Rs. 200/- in default to undergo S. I. for 20 days u/s 447 IPC.

On appeal the conviction was maintained but the sentence of imprisonment of u/s 370 IPC reduced to 4 months R. I. by 6th Addl. Sessions Judge. Bilaspur in Criminal Appeal No. 106/90.

Shri R. K. Verma. learned counsel for the applicant, has contended that in Khasra Panchashala. the P. O. land is jointly recorded in the name of Radhabai and Jannabai. The applicant is the maternal nephew of Jannabai. He was managing the affairs of Jannabai as she has no other relative to look after her affairs. The applicant had harvested the paddy crop in exercise of bonafide claim of right. Therefore, the offence of the applicant u/ss. 379 and 447 IPC is not attracted. The contention of Shri Verma is well founded.

It is well settled by Catena of decisions by the Apex Court that taking away moveable articles in exercise of the Claim of bonafide right is a good defence for an offence u/s 379 IPC.

The Apex Court in the Case of Suvvari Sanyasi Apparao and Another Vs. Boddepalli Lakshminarayana and Another, has observed :-

Where a bonafide claim of right exists, it can be a good defence to a prosecution for theft. An act docs not amount to theft, unless there be not legal right but no appearance or colour of a legal right.

The ratio in the case of Suvvari Sanyasi Apprarao (Supra) was again reiterated by the Apex Court in the case of Chandi Kumar Das Karmarkar and Another Vs. Abanidhar Roy, wherein the appellant Chandi Kumar was convicted by the High Court for theft of fish by fishing in a pond which was in possession of the complainant, Abanidhar, while the pond was jointly recorded in the name of the appellant and the respondent/complainant and the Court observed :

In our opinion there was an absence of the animus furandi and the circumstances bring this case within the rule that where the taking of moveable property is in the assertion of a bonafide claim of right, the act. thought it may amount to a civil injury, does not fall within the offence of theft.

The Apex Court in the case of Ram Ekbal Vs. Jaldhari 1972 Cri. L.J. 585 has further held that :-

It is thus impossible to say that the appellants were not at any rate under a bonafide belief that they were entitled to the possession and that being so there was no question of their having tresspassed into the said land or formed an unlawful assembly for committing theft of the standing crop. In any event, the stand of the respondent that he had cultivated the land, and therefore, the crop was his was a matter of considerable doubt. The dispute between the parties was such that Civil Court would have more appropriately decided it. particularly in view of the decisions given by the proceedings u/s 145 of the Code of Criminal Procedure, as also in the said mutation proceedings. The entire question of possession and even title was thus in an extremely fluid state and therefore the question of the respondent''s possession on the date of the incident in question was not beyond controversy.

In the instant case, it is admitted that in panchshala Khasra P. O. Field was jointly recorded in the name of Radhabai and Jannabai. The applicant had harvested the crop on behalf of the Jannabai, in exercise of bonafide claim of right. Therefore the ingredent of section 379 and 447 IPC is not attracted in this case. The conviction and sentence of the applicant is bad in law, therefore, it cannot be sustained. Accordingly, it is set aside. In the result petition succeeds and is hereby allowed. The line if realised be refunded to the applicant.