JUDGMENT 1. This is a Rule calling upon the District Magistrate of Howrah and the complainant to show cause why the conviction and sentence passed on the petitioner should not be set aside on the ground that the petitioner, having purchased a certain share in the disputed bheel from the rightful owner thereof, acted bona fide in catching fish in the said bheel. 2. The facts, so far as are necessary for the disposal of this Rule, shortly, are these: one Ibrahim Mistry purchased a certain share in this disputed bheel from the widow of one Beuch Jemada. The latter sold to Ibrahim for herself, and as guardian of her minor son and minor daughter. It appears that subsequently there was a sale of certain other shares in this bheel to the accused Matlab. The accused having purchased this last mentioned share caught fish in this bheel. 3. The question that arises is whether his act in catching fish in this bheel by virtue of the conveyance last referred to, was a bona fide act or not. 4. Now having regard to the facts found by the learned Magistrate, it is impossible to come to the conclusion that the act of catching fish in this bheel, by virtue of the conveyance last referred to, on the part of the accused Matlab was not bona fide and in that view of the matter the conviction and sentence must be set aside and the fine, if paid, refunded. 5. A point has, however, been urged by Mr. Birbhusan Dutt, who appears to support the conviction, that the appeal in the lower Court having been disposed of by a first class Magistrate, who was empowered to dispose of appeals from the decisions of 2nd and 3rd class Magistrates under the provisions of section 407, sub-clause (2) of the Criminal Procedure Code, the application to this Court, without going to the Sessions Judge and asking him to make a reference to this Court, was not in order. In support of this contention our attention has been drawn to the cases of Emperor v. Abdus Sobhan [1909] 36 Cal. 643 - 13 C.W.N. 753 - 10 Cr. L.J. 190 - 2 I.C. 846 and Rash Behari v. Phani Bhusan [1920] 48 Cal. 534 - 22 Cr. L.J. 650 - 63 I.C. 410. We are in agreement with Mr. In support of this contention our attention has been drawn to the cases of Emperor v. Abdus Sobhan [1909] 36 Cal. 643 - 13 C.W.N. 753 - 10 Cr. L.J. 190 - 2 I.C. 846 and Rash Behari v. Phani Bhusan [1920] 48 Cal. 534 - 22 Cr. L.J. 650 - 63 I.C. 410. We are in agreement with Mr. Dutt in the contention which he has put forward, namely, that ordinarily an applicant like the present petitioner ought to go to the Sessions Judge and move him for a reference to this Court. But so far as this Rule is concerned, we cannot discharge this Rule on that ground. The application having been heard and the Rule having been granted, we are bound to dispose of the Rule on the merits.