Madhusudan Das and Another vs Emperor

The petitioners have been convicted u/s 379, Indian Penal Code, and sentenced to pay a fine of Rs. 30 each by the Deputy Magistrate of Balasore.

A complaint was laid against them that they as servants of the Mahanth, had cut down and, removed certain trees from the complainant''s holding for the purpose of the repair of the Math. The learned Deputy Magistrate found that four trees had been cut by the petitioners and then proceeded to discuss whether the rights in the trees belonged to the landlord or to tenant. He had some difficulty in coming to a finding on this point and then came to a decision that a finding was not really, necessary because the petitioners had cut the trees on their own account and hot as servants of the landlord.

Mr. Manuk for the petitioners has pointed out that from the very start the case of the complainant has been, as shown in the conrrilaint and in the evidence of the witnesses, that these trees were cut down by the Petitioners on behalf of the Mahanth and for the purposes of repair of the Math property. It is thus evident that the learned Deputy Magistrate was not justified in changing the case of the, prosecution and finding that the petitioners were ordinary thieves. As to the question of the trees there is some doubt in most parts of the Province as to the possession of trees standing on tenants'' holding. There have been cases in which it has been decided that, where a tenant cuts the trees on his holding without the landlord''s consent and mtila fide, the tenant commits theft. The trees were claimed by the Mahanth as his and he also claimed a right to cut them. There had been some difference between the Mahanth and his tenants and it seems that owing to this enmity the Mahanth determined to exercise his rights and cut trees from the holding. Whether there was or was not this right, is a question whichit is difficult for a Criminal Court to decide and it may well be held that the cutting was made by the servants of the Mahanth on a bona fide claim of right to cut those trees. Under the circumstances of this case I am of opinion that the conviction of the petitioners u/s 379, Indian Penal Code, was not justified. They must in any case have the benefit of the doubt on the point whether the cutting was done under a bona fide claim.

The petition is allowed and the petitioners will be acquitted and the fine, if paid, refunded.