JUDGMENT Pargiter, J. - The three Petitioners, Hari Bhuimali, Mohan Bhuimali, and Kasim Sheikh are servants of the Maharajah of Cassimbazar, and have been convicted by the Joint Magistrate of Rampore Hat, under sec. 379, I. P. C., and fined Rs. 50 each, because they cut down three trees in an orchard belonging to Babu Akhoy Kumar Ghose and took them to their master's cutchery on or about 13th November 1904. They obtained this rule calling on the District Magistrate to show cause why the conviction and sentence should not be set aside on the grounds set forth in their petition. The rule has been fully argued before us on both sides. At first I was inclined to think the Petitioners had some right on their side, but after hearing the clear statement of the facts put before us by the learned Counsel who appeared for the opposite party I think the Magistrate's decision is right. 2. The matter in dispute is an orchard and the complainant is a kotal (or servant) in the service of Babu Akhoy Ghose. Both the Maharajah and Babu Akhoy Ghose are very wealthy men with a large number of tenants living near this orchard. 3. The plain facts are these. Babu Akhoy Kumar Ghose (or his predecessor) obtained possession of the orchard under a Civil Court decree on 9th December 1900. The Maharajah, alleging that the orchard was held by one Ebadut Ali as part of a holding of 81 bighas at a rental of Rs. 11 obtained a decree against Ebadut (apparently a money decree, though this point is not important) and tried to get possession in the execution proceedings, but Akhoy Babu's men opposed. Akhoy Babu's claim was allowed and the Maharajah failed, the Sub-Judge deciding that Akhoy Babu was in possession. That was on the 30th August 1902. Although the Maharajah therefore knew that Akhoy Babu was in possession and Ebadut was not in possession, yet he instituted another suits against Ebadut in 1903, alleging (a new case) that this orchard was part of a holding of 11 bighas at a rental of Rs. 27. He got a decree against Ebadut and under it brought the alleged holding, and obtained the sale certificate on 30th September 1904. 4. The Civil Court closed for the long vacation on 7th October, the holidays lasting from 8th October to 9th November. 27. He got a decree against Ebadut and under it brought the alleged holding, and obtained the sale certificate on 30th September 1904. 4. The Civil Court closed for the long vacation on 7th October, the holidays lasting from 8th October to 9th November. The Maharajah applied in haste for delivery of possession, and a peon Abdul Ghaffur was sent to deliver possession. The peon was prevented by Akhoy Babu's men from giving possession to the Maharajah, and made a report to that effect when the Courts reopened on 10th November. The Petitioners, however, alleged that the peon did deliver possession on 10th October, but was bribed by Akhoy Babu's men during the holidays and so made a false report. Some of the Maharajah's men afterwards cut these three trees and took them away. The complainant said the Petitioners did that about 13th November and he made a complaint on 13th November. The Petitioners alleged the cutting was earlier, but this difference has not been treated before us as of any importance : the main fact being undisputed that the trees were cut alter the alleged delivery of possession. 5. It has been repeatedly pressed on us on the Petitioners' behalf that the cutting Gould not be an offence because the Maharajah had a right to the orchard. Now the fact, that a person who invades another's property alleges some pretext of right, does not prove that the pretext is genuine and bond fide. No one invades another's property avowing that he does so without any right; he naturally and of necessity puts forward some pretext of right. The mere assertion of the pretext therefore proves nothing whatever, and the Courts must see whether the assertion is based in good faith on fair and reasonable grounds; otherwise no man's property would be safe nor could he get redress from the criminal law, however gross the invasion of his rights and however baseless the alleged pretext of right might be. A wrong-doer cannot by setting up some false or collusive or spurious claim oust the Criminal Court from taking cognizance of his offence. A wrong-doer cannot by setting up some false or collusive or spurious claim oust the Criminal Court from taking cognizance of his offence. It is by no means uncommon that a person who wants to get possession of property, tries either before he goes to the Civil Court or after he has failed there, to get some footing in the property by force, and to cloak his act with some pretence of right. 6. The essential fact in the Petitioners' case is their allegation that their master the Maharajah obtained possession of this orchard from the peon on 10th October. It is proved that before that date Akhoy Ghose was in possession, and the Maharajah knew that perfectly well after the Sub-Judge's decision in Akhoy Habit's favour and against him on 30th August 1902. The prosecution denied that the peon gave the Maharajah possession, This raised a plain question of fact which is necessarily involved in this case, and the Magistrate was bound to decide it in the same way as other important questions of fact have to be decided in the Criminal Courts. He has found that the peon did not give possession to the Maharajah. 7. That is a finding of fact which is generally respected in revisional cases such as these; but as it has been challenged by the Petitioners under the rule granted, I have carefully considered the evidence and the circumstances and am of opinion that the Magistrate has decided it rightly. Both sides adduced evidence. On the one side are the peon's report and deposition and the evidence of the prosecution witnesses and all the probabilities arising out of the circumstances which are not disputed. On the other is the evidence of the defence witnesses who have certainly not told the truth in favour of a story which is highly improbable. 8. To support this story, the Petitioners' side have freely cast aspersions on the other side, but the suspicions really recoil on their own heads. It is significant that the Maharajah took out execution just before the Court closed, so that possession would be given after they closed, and the peon's report would not be made till the Courts re-opened a month later. It is significant that the Maharajah took out execution just before the Court closed, so that possession would be given after they closed, and the peon's report would not be made till the Courts re-opened a month later. This is a very important fact, For it was at the Maharajah's option at what time he would seek to obtain possession, and it shows that be preferred to seek possession when the Civil Courts were closed. This certainly suggests that, if there was any likelihood of chicanery it was the Maharajah's side that contemplated it and arranged for it. Akhoy Ghose however had been put on his guard by the Maharajah's previous attempt to get possession, and there can be no doubt upon the evidence, that his men defeated the Maharajah's renewed attempt, and that the Maharajah's party sought to save itself by making imputation of bribery against Akhoy Babu's party and the peon. Now there was no need whatever for Akhoy Babu to indulge in chicanery or bribe the peon. All that he had to do was to remain on an honest and vigilant defensive; it was the Maharajah's parry which was pursuing underhand tactics. 9. Having stated the facts, I will now consider the ground set out in the petition, taking them in the most convenient order, and omitting the last two, which are only general objections upon the whole case. Ground 7.-- This is incorrect. The Magistrate's judgment is based on the matters that were proved in the depositions taken by him. Ground 11.--From the references made to the previous decree before us it is not clear whether the decree was for rent or for money, but the point is not material. The important fact is that the Maharajah got the decree against Ebadut who was not in possession of the orchard and tried to gain possession thereunder, Ground 9. -- The Magistrate's remarks that the second decree against Ebadut was collusive was a comment on the facts and evidence adduced before him. It was Akhoy Ghose's contention that the decree was collusive, and every Court must consider and comment, on the material points of the case before it. -- The Magistrate's remarks that the second decree against Ebadut was collusive was a comment on the facts and evidence adduced before him. It was Akhoy Ghose's contention that the decree was collusive, and every Court must consider and comment, on the material points of the case before it. The Magistrate's comment was not on the Civil Court itself, but only on the conduct of these persons who were litigating in a civil suit about land, of which they knew after the Sub-Judge's decision in their own suit neither of them had any possession. It is urged that the Maharajah had a right to sue his recorded tenant. That is true as a general proposition, but it is no excuse here, for when neither he nor his tenant was in possession, and when both of them knew that after the Sub-Judge's decision in August 1902, It is plain that the second suit between them, which ignored that decision that Akhoy Ghose was in possession, can hardly be described in terms of honesty. The Magistrate's remark was a reasonable comment on the facts mentioned. Ground 4- -- The Magistrate could not have dealt with this ase as one under sec. 145, Cr. P. C., in the face of the peon's report that possession was never given to the Maharajah on 10th October. The Maharajah no doubt wished by forcibly invading the property to get a footing for his claim under the Criminal Procedure Code such as he had twice failed to get under the CPC and to make a pretence of being in possession. The question of possession however was too clear unless he could fog it by feigning that he had a specious claim. He tried to do that by seeking to gain possession when the Civil Courts were closed, and when that course failed by accusing the peon and Akhoy Babu's party of bribery. Ground 5.-- There was no reason for the Magistrate to stay the hearing of his case until the Munsif decided whether possession had been given by the peon. He tried to do that by seeking to gain possession when the Civil Courts were closed, and when that course failed by accusing the peon and Akhoy Babu's party of bribery. Ground 5.-- There was no reason for the Magistrate to stay the hearing of his case until the Munsif decided whether possession had been given by the peon. It has been laid down by a Full Bench, In the matter of Ram Prosad Hazra B. L. R. (F. B.) 246 (1886), that criminal proceedings are not ordinarily to be stopped while civil proceedings are pending; and it is most important to notice that in this matter the Munsif's finding would not have decided anything binding against Akhoy Ghose, for he was no party to the civil proceedings including the accusation against the peon which the Maharajah was carrying on behind his back. To stay this case, therefore, for the Munsif's finding would have been futile, and Akhoy Babu was entitled to get prompt redress from the Criminal Court for this invasion of his rights. It cannot be said that his rights were to remain unredressed, until the proceedings between the Maharajah and the peon were decided, proceedings that might drag on for months. Ground 3.--From these remarks it is clear the Magistrate did not take a wrong view of the civil rights of the parties. He had nothing to do therewith, but only with the fact of possession, and the question of criminal intention, the other facts of the case not being disputed. Ground 2.-- The disputed was not a bond fide civil dispute. Had the Maharajah been acting in good faith, he would after the Sub-Judge's decision of August 1902, have sued Akhoy Ghose directly and openly. But instead he instituted a second suit against. Ebadut, who (and this fact must be re-iterated) he knew from that decision was not in possession; and he tried under cover of the decree in that second suit to get surreptitious possession, after the Courts had closed for the vacation. Failing in that, his party tried to rush his claim by this forcible invasion of the orchard. Such conduct cannot be described in terms of honesty or good faith. Grounds 1 and 8.-- In such circumstances it cannot be said these Petitioners acted in good faith and without dishonesty. Failing in that, his party tried to rush his claim by this forcible invasion of the orchard. Such conduct cannot be described in terms of honesty or good faith. Grounds 1 and 8.-- In such circumstances it cannot be said these Petitioners acted in good faith and without dishonesty. The Maharajah and his agents (as is usual in such cases) did not run into any danger themselves. The Petitioners are his local men, and they are well acquainted with the local circumstances. This appears, from their defence, it was (that the orchard was his and in his, possession, though it was well known that possession had not been given to him. They did not plead ignorance nor allege that they acted misguidedly in good faith. Their defence was an assertion of his right and an avowal that they acted upon that right; that is, that they acted knowingly and deliberately. Ground 10.- The Petitioner Kasim denied that he was present at the cutting of the trees; but there is evidence that he was present. The Magistrate has believed it, and no good reason has been shown why it should not be believed, the probabilities are strongly in favour of it, and there is no improbability. He was there as the Maharajah's peon supervising the cutting. Ground 6.-- The charge is defective in that the word " dishonestly " has been omitted. This was plainly a mere clerical omission. No one was misled by it as the record clearly shows. This omission is covered by sec. 537, Cr. P. C., and it is precisely defects of this kind to which the section was declared to apply in Subramania Ayyar v. King-Emperor I. L. R. 25 Mad. 61 (1901). 10. I have now considered the whole of the facts and each of the grounds put forward in the petition. The rule was issued ex parte on the Petitioners' application. We have had the benefit of hearing the facts laid before us by the learned Counsel who appeared for the opposite party, and of listening to the full arguments on both sides. I am of opinion that, no case has been made out for our interference. I would therefore discharge the rule. 11. As my learned brother Mr. We have had the benefit of hearing the facts laid before us by the learned Counsel who appeared for the opposite party, and of listening to the full arguments on both sides. I am of opinion that, no case has been made out for our interference. I would therefore discharge the rule. 11. As my learned brother Mr. Justice Woodroffe does not agree with me in this case, the case with these judgments and the papers will be laid before the Hon. the Chief Justice for reference to a third Judge. Woodroffe, J. 12. The accused has been charged and convicted of theft of some wood of the value of a few rupees. The case arises out of a dispute between two wealthy landholders Babu Akhoy Coomar Ghose and the Maharajah of Cassimbazar. As is usual in these matters the complainant and the accused are their menial servants-a method of proceeding which if not adopted for the purpose tends at least to give to the case a suggestion of criminality which would appear incongruous if the principals themselves were concerned. Babu A. C. Ghose whose servant is the complainant claims to have purchased in 1899 in execution a small garden which is said to have originally belonged to one Munshi Shahamat Ali. An application was made under sec. 334 of the CPC which was opposed but the Court directed that possession should be made over to the decree holder. The complainant says and has produced evidence to that effect that his master got possession and used to sell the fruit of the garden. The accused have produced evidence that Ebadut Ali, the son of Shahamat Ali, retained possession and used to take the fruit from this small piece of ground. The Maharajah in 1902 attached the garden. Babu A. C. Ghose thereupon put in a claim. At the hearing of this claim the Maharajah's pleader asked for an adjournment which was refused. The claim was decreed ex parte and the garden released from attachment. The Maharajah subsequently sued Ebadut Ali and obtained a decree and in execution of this decree the garden was sold to him. It is said for the prosecution that Babu A. C. Ghose was not a party. It is replied that the Maharajah was not bound to make any one a party but his registered tenant. The Maharajah subsequently sued Ebadut Ali and obtained a decree and in execution of this decree the garden was sold to him. It is said for the prosecution that Babu A. C. Ghose was not a party. It is replied that the Maharajah was not bound to make any one a party but his registered tenant. The prosecution allege that the Maharajah never got possession under this decree in consequence of resistance offered by the men of Babu A. C. Ghose. Evidence has been given to this effect. The accused produce evidence on the other hand to show that possession was in fact given by the Court peon on the 10th October 1904 but that the peon did not submit his report until a month later, during which time it is suggested he was bribed by the opposite party to make a false return. An enquiry into this very matter is now pending in the Civil Court. But the Magistrate though asked so to do refused to stay proceedings pending the decision of the Civil Court on what he holds to be an essential point in the case. The accused have given evidence of their master's alleged possession. On the 24th October 1904 according to the accused and on the 12th or 13th November according to the prosecution the accused are said to have cut three trees in the garden. Very probably this was done in assertion of the right thereto claimed by the Maharajah. The trees were cut openly in broad day light in the presence (if the prosecution witnesses are to be believed) of several people. The officer of the Maharajah when questioned, admitted that he had given orders for their cutting and showed the trees to the Police to whom they were subsequently made over. Two of the accused admit that they cut the trees at their master's order. The third accused is said also to have been present though this is denied. The case however as regards them all is that in doing what they did they were merely carrying out the orders of their superiors. They got no personal advantage by the act. 13. The third accused is said also to have been present though this is denied. The case however as regards them all is that in doing what they did they were merely carrying out the orders of their superiors. They got no personal advantage by the act. 13. The issue what the Magistrate stated For himself was whether on the day the trees were cut, the orchard was in the possession of the Maharajah, if not, did the servants cut them in good faith believing them to be their master's property. As regards the delivery of possession to the Maharajah, he says, that the evidence for the prosecution is not such as to enable him to accept the peon's evidence (and by implication the rest of the prosecution evidence on this point) without further consideration. On the probabilities of the case he however decided that the Maharajah did not got possession. Then passing to the question of bond fides he says :-" If possession was not delivered to the Maharajah it follows that the accused did not cut the trees honestly believing that they were the Maharajah's." The cutting of the trees he finds to be the final act of conspiracy formed to obtain possession of the orchard and the decree what the Maharajah obtained and under the authority of which and of his alleged possession his servants were ordered to cut the trees was held by him to be a false and collusive one. It is clear, he says, that the accused were "willing accomplices in the dishonest attempt to dispossess the rightful owner of the orchard. The claim of bund fides has no foundation and the offence has fully been made out." 14. I do not propose to deal at length with the evidence in this case. It may be that Babu A. C. Ghose has a better title to the land : it may be he has not. Neither are the materials before me, nor is this the Court in my opinion to discuss them. If he has a title which has been impugned by the act of the Maharajah he should sue the latter in the Civil Court for a declaration of that title and for an injunction a procedure which possesses every advantage except that of being oppressive and insulting. In my opinion sec. If he has a title which has been impugned by the act of the Maharajah he should sue the latter in the Civil Court for a declaration of that title and for an injunction a procedure which possesses every advantage except that of being oppressive and insulting. In my opinion sec. 379 has been in this case, as it is most commonly, misapplied to matters which should properly be dealt with by the Civil Courts. 15. In criminal law what is generally understood by theft and its kindred offences are such acts as those of the pick pocket, the shop-lifter, the house-breaker, the dacoit and so forth--acts in fact of a truly criminal nature in which no claim of title is made. No doubt an accused cannot escape the penalty of crime by the more pretence of a bond fide claim which has clearly no foundation. But I think that the Criminal Courts should not convict of theft any person who asserts a claim of right unless it is in a position to say that that claim is a mere pretence. This in my opinion is not such a case. The Police reported the matter as one for the Civil Court. The Magistrate thought otherwise and directed them to send up an A form He refused to take proceedings under Chap. XII of the Code on the ground that the question of possession could be decided in this case. Upon the conflicting oral evidence as to possession and upon the ground that the Maharajah's decree was fraudulent and collusive he has convicted his servants of theft. If either their master had possession or if without possession he had a good decree it is plain that no offence was committed. The Magistrate says that decree was fraudulent. But an enquiry into the character of a Civil Court decree does not appear to me to be ordinarily at least one for a Criminal Court. In the first place I think the applicant has made out the ground upon which the rule was granted, viz., that the matter was one of a civil nature in which the Magistrate should not exercise jurisdiction and, nextly, I am not satisfied that the evidence establishes the offence. In the first place I think the applicant has made out the ground upon which the rule was granted, viz., that the matter was one of a civil nature in which the Magistrate should not exercise jurisdiction and, nextly, I am not satisfied that the evidence establishes the offence. I may here point out that in this case as is not unusual the guilt of the servant is assumed when the case is held to be proved against his master. 16. In most instances no doubt servants have full knowledge of the facts. But there most be some evidence from which the Court can infer such knowledge. In this case there is, so far as I have been able to ascertain, none. For all that appears to the contrary the accused might have arrived at the place of the alleged theft the day before it occurred. No attempt is made to show who the accused are, what positions they hold, how long they have been employed and where, and above all whether they have been employed for such a time and under such conditions as to be aware of all that preceded the occurrence as regards the litigation, and other facts to which the Magistrate has referred as evidence of guilty knowledge and intention. The whole object of the present proceedings appears to me to get a summary decision as to the complainant's master's title a matter which should be dealt with by the Civil Court though if the dispute threatens to lead to a breach of the peace proceedings can be taken under Chap. XII of the Code. I would therefore make the rule absolute and set aside the conviction and sentence and order that the fines if paid be refunded. Maclean, C.J. 17. This comes before me by reason of a difference of opinion between Mr. Justice Pargiter and Mr. Justice Woodroffe. I agree with Mr. Justice Woodroffe in thinking that this rule must be made absolute. I might, perhaps, confine myself to saying, although there are one or two passages in the judgment of Mr. Justice Woodroffe to which exception might be taken, as, for instance, the passage where he gives a definition of the word "theft," that I entirely agree in the conclusion at which he has arrived and generally with his reasons. I might, perhaps, confine myself to saying, although there are one or two passages in the judgment of Mr. Justice Woodroffe to which exception might be taken, as, for instance, the passage where he gives a definition of the word "theft," that I entirely agree in the conclusion at which he has arrived and generally with his reasons. No doubt, as a rule, in revision cases, the findings of fact of the lower tribunal are accepted by this Court: but there are exceptions, and as both the learned Judges have gone into the facts I must, I think, take it that the present case falls within the exception. And where the facts are so doubtful as to give rise to a difference of opinion between two learned Judges of this Court, and the conviction is dependent upon the finding of fact, in these circumstances I should feel a difficulty in upholding the conviction. And when we find, on the facts, that one of the learned Judges has determined that there was a bond fide claim on the part of the Maharajah, whose servants the Petitioners are, to the garden in question, and that it was not a mere pretence of a claim on his part, it seems to me dangerous to hold that a conviction for theft can properly follow, inasmuch as, in those circumstances, it could not be said that there was an intention on the part of the Petitioners to take the trees dishonestly. One must be careful to see that the criminal law is not put in motion with a view to assistance in the prosecution of a civil claim. It looks as if that were the case here. The case has been so fully discussed by Mr. Justice Woodroffe in his judgment that I do not think I can usefully add anything to what he has said. The rule will be made absolute.