In Re: Subbiah Servai and Others

Ayling, J.—The accused were convicted of theft in removing fish from a Government irrigation tank. They pleaded guilty, but the District

Magistrate, relying on the ruling in the High Court Proceedings 663, dated 10th April 1880, has referred the case on the ground that the capture of

fish in an ordinary irrigation tank does not amount to theft.

The ruling quoted which has been followed in a later case--Subba Reddi v. Munshoor Ali Sahib ILR (1900) M. 81--is authority for the general

principle above referred to, but there is a reason to doubt whether that principle is to be applied to all cases and under all circumstances or was

intended to be so applied. A somewhat different view has been taken by both the Bombay and Calcutta High Courts, vide Queen-Empress v.

Shaik Adam Valed Shaik Farid ILR (1886) B. 193 and Mayaram Surma v. Nichala Kantani ILR (1888) C. 402. In the former case the tank in

question was an enclosed municipal tank ; but the ratio decidendi was that the fish being unable to escape from the tank ate practically in the power

and dominion of the owner so as to be capable of being the subject of theft. It has been pointed out that even in an open irrigation tank, after the

water has fallen to such an extent that both the supply and distribution channels are dry. the freedom of the fish is equally circumscribed, and the

learned Judges of the Calcutta High Court, in the ruling above quoted, appear to clearly recognise that under such circumstances a conviction for

theft might be sustainable. It was presumably in view of those considerations that Miller J. in the latest Madras case to which 1 have been referred

(Cr. R.P, No. 580 of 1909) held that each case must be decided on the particular facts thereof- in other words that the general principle laid down

Subba Reddi v. Munshoor Ali Sahib ILR (1900) M. 81 and the earlier case was not universally applicable. He accordingly refused to interfere

with a conviction based on very similar facts to those in the present case.

In this view I cannot but concur though I fully realise the desriability of a more positive exposition of the law, if it were possible, and the

drawbacks inevitably attendant on a state of affairs in which an act which is lawful to-day may become a criminal offence to-morrow and vice

versa.

In the present case the judgment gives no indication of the state of the tank, but the District Magistrate says that the Sub-Magistrate''s statement

that the water was so low that the fish could not escape is probably correct. In view of this and of the fact that the accused pleaded guilty and have

only been awarded small fines, I do not feel it necessary to call for further evidence or to interfere in any way with the conviction and sentence.