IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.50566 of 2007 1. GYAN SHANKAR GOSWAMI, son of late Jagdish Goswami 2. Kunti Devi wife of Gyan Shankar Goswami 3. Sangita Devi, wife of Shri Sanjay Goswami All are resident of village Mohanpur, P.S. Dharhara, District Munger 4. Mahanand Mishra, son of Arjun Mishra, resident of village Beldiha, P.S. Dhoraiya, District Banka 5. Nakul Goswami, son of Late Ram Charan Goswami 6. Nirmala Devi, wife of Sri Nakul Goswami 7. Naresh Goswami, son of Late Kangali Goswami 8. Ratila Devi, wife of Shri Naresh Goswami 9. Jaidev Goswami, son of late Mahavir Goswami 10. Haldhar Goswami, son of late Parmeshwar Goswami 4 to 10 are resident of village Bara Tola Beldiha, P.S. Dhoraiya, District Banka 11. Kusum Lata Devi, wife of Kedar Goswami 12. Kedar Goswami, son of late Bhagwat Goswami Both are resident of village Samsa, P.S. Bakhari, District Begusarai, at present residing at village Mahua Kachrati, P.S. Dhoraiya, District Banka Versus 1. THE STATE OF BIHAR 2. Kailash Goswami, s/o late Bijendra Goswami @ Jichhi Goswami, resident of village Bara Tola Beldiha, P.S. Dhoraiya, District Banka ----------- 4. 29.3.2010 Heard counsel for the petitioners. No one appears on behalf of O.P.No.2 despite service of notice. This Court on reading of the complaint petition would find that the alleged occurrence of offence u/s 379 IPC relating to cutting away paddy crops had an authority in form of an order of the Anchaladhikari, Dhoraiya. The moment the complainant himself had admitted in the 2 complaint petition of such an authority there would be atleast a semblance of right in favour of the petitioners which turn would automatically rule out the question of committing theft. Reference in this connection may be made to the judgment of the Apex Court in the case of Chandi Kumar Das Karmarkar and another vs. Abandidhar Roy, reported in AIR 1965 SC 585, wherein in a similar situation as with regard to right of catching fish under bona fide claim of right was held to have not constituted the ingredients of offence of theft. The Apex Court in that regard in the case of Chandi Kumar Das Karmarkar (supra) had held as follows:- “…9. That there was a dispute between the parties which had not till then been decided by the Civil Court goes without saying. The facts do show that the decree was obtained by unfair means and the possession was tainted by fraud. Of course by the setting aside of the ex parte decree possession would not revert without proceedings for restitution, but the circumstances undoubtedly were 3 such that the appellants might well have thought that their possession stood restored. This belief was not lessened by the grant of a temporary injunction and its withdrawal on the assurance of Sailesh Chandra Banerjee that during the pendency of the proceedings he would not exercise certain rights of ownership. Further the transaction between Abanidhar Roy and Sailesh Chandra Banerjee during the pendency of the Civil Case was not binding on the appellants. There was thus a real dispute and in a manner of speaking also a recognition that a rival claim in respect of the tank did exist. In these circumstances it was not improbable that the appellants considered that after the setting aside of the ex parte decree and the giving of the undertaking by Sailesh Chandra Banerjee they were entitled as the recorded tenants, to catch fish for a ceremony in their house. That they did it only once does not prove lack of bona fides but rather the contrary. All the embellishments in the case about unlawful assembly, riot, force and threats have not been 4 believed and the catching of the fish in this big tank with nets was done quite openly. 10. 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 bona fide claim of right, the act, though it may amount to a civil injury, does not fall within the offence of theft….” Considering this aspect of the matter, this Court would find that the continuance of the criminal prosecution of the petitioners would be a gross abuse of process of the Court and accordingly, the entire criminal proceedings including the order taking cognizance is hereby quashed. (Mihir Kumar Jha,J.) Surendra/