JUDGMENT 1. The District Magistrate has overlooked the rulings of this Court, dated 23rd October 1878, No. 1759, reported at page 232, Weirs Law of Offences, 3rd edition, and in the note to Queen v. Reva Pothadu I.L.R. 5 Mad. 390. 2. It was there held that fish in an ordinary open irrigation tank are not in possession of any person, so as to be capable of being 3. the subject of theft. The question whether the removal of such fish constitutes any other offence is fully discussed in Bhagiram Dome v. Abar Dome I.L.R. 15 Calc. 388 and is answered in the negative, These rulings are evidently referred to by the Sub-Magistrate, though he has failed to note them with exactness. 4. The District Magistrate should have referred to them before setting aside the order of the Sub-Magistrate, Following those rulings we must set aside the order of the District Magistrate and restore that of the Sub-Magistrate dismissing the case.