Judgment:
ORDER
H.C.P. Tripathi, J.
1. On a complaint made by applicant, opposite parties were summoned for an offence Under Section 395 of the Indian Penal Code. The Magistrate held an inquiry Under Section 208 of the Code of Criminal Procedure and after assessing the evidence reached a conclusion that
the opposite parties removed the Sarson crop which was the produce of the disputed plot, under a bona fide assertion of their right and so no case has been made out against them. Accordingly, he discharged them.
2. Applicant came up in revision before the learned Additional Sessions Judge, Shahjahanpur. After hearing the parties at length, the learned Judge agreed with the finding of Inquiry Magistrate that
the cutting and removing of the crops from the fields and removal of the crops of these very plots from the threshing floor of the complainant therefore did not constitute theft or any other criminal offence.
3. The learned Judge, therefore, dismissed the revision.
4. I have heard the learned Counsel for the parties. I have also perused the impugned orders and the relevant portions of the record. It appears that the documentary evidence on the record indicated that some of the opposite parties were in possession of 5 or 6 plots whose crop was alleged to have been cut and removed by them. It is also borne out from the record that there had been a dispute regarding ownership and possession between the parties in respect of these plots and ejectment proceedings were also going on in respect of some of them. The opposite parties claimed to have sown the crop which they admitted to have cut and removed from the disputed plots. There was no clear evidence on behalf of the complainant to indicate that the opposite parties had removed the crop of plot No. 306/4 also to which they laid no claim. In this state of evidence, the finding of the learned Magistrate, that the dispute between the parties was of the civil nature and that no criminal offence has been made out against the opposite parties, who had removed the crop in a bona fide assertion of their claim, is reasonable.
5. In the case of Suvvari San-yasi Apparao v. Boddepalli Lakshmi-narayana : AIR1962SC586 , it was held that
It is settled law that where a bona fide claim of right exists, it can be a good defence to a prosecution for theft. An act does not amount to theft, un- less there be not only no legal right but no appearance or colour of a legal right.
6. Again in the case of Chandi-kumar Das Karmarkar v. Abanidhar Roy : 1965CriLJ496 the Supreme Court was pleased to hold that
Where the taking of moveable property is in the assertion of a bona fide claim of right, the act, though it may amount to a civil injury, does not fall within the offence of theft.
7. There is no force in this revision and it is dismissed.