Judgment 1. HAVING read the Letter of Reference of the learned Sessions Judge of burdwan and heard the learned Advocates on both sides, I think this Reference must be accepted. 2. FROM the facts stated in the Let between the present petitioner accused and the opposite-party complainant a bona fide dispute of a civil nature is pending decision by a competent court in regard to the possession of certain immovable property. The complainant-opposite-party alleged in the petition of complaint before the Magistrate of Burdwan against the present petitioner kishori and others that on 22. 11. 68, the petitioner and others committed theft in respect of cut jute which had been kept gathered on a certain plot of land belonging to the complainant-opposite-party. After taking initial ejahar of the complainant, the Magistrate directed the local police to make an enquiry and report. An enquiry was held by the Police and the report was submitted which indicated that in respect of the land in question there was a deed of gift by the complainant in favour of the accused. Subsequently, the complainant filed another petition praying for judicial enquiry. A learned magistrate held the judicial enquiry reporting that the controversy involved a civil dispute. On 30-9-69 the Magistrate summoned the accused persons including the present petitioner under section 379 of the Indian Penal Code. The petitioner approached the learned sessions Judge with a prayer for quashing the proceeding against him. On 25.4.67, the complainant filed a suit against the petitioner in the Munsif court, Burdwan, for cancellation of the deed of gift, she had executed in favour of the accused petitioner on the ground that it was obtained by fraud. That suit was pending decision at the time when the alleged offence was committed by the petitioner. The petitioner claimed possession under the deed of gift in the land in question from which the petitioner was alleged to have had cut down growing jute and committed theft in respect thereof as was complained of by the opposite party complainant Sashani Bala Debi. It is clear from the facts stated in the Letter of Reference by the learned Sessions Judge that the petitioner-accused has raised a bona fide dispute of a claim of civil nature in regard to the possession in the land in question. It is clear from the facts stated in the Letter of Reference by the learned Sessions Judge that the petitioner-accused has raised a bona fide dispute of a claim of civil nature in regard to the possession in the land in question. The petitioner claimed that while in possession of the land obtained under a deed of gift from the opposite party he grew jute and cut it and had not committed any theft in respect of the jute. The complainant-opposite-party, before the alleged occurrence of theft had taken place, went to a civil court of competent jurisdiction for cancellation of the deed of gift in respect of the land in which the petitioner claimed possession under the deed of gift at the time of the alleged theft allegedly committed by him of the jute allegedly grown by him on the land obtained by him and possessed by him under a deed of gift from the complainant opposite party. 3. SINCE the decision in the case of (1) Harry Jones v. Emperor reported in AIR 1924 Calcutta page 908, it has been the settled law that a bona fide out unsustainable claim raising a dispute of a civil nature which is merely not a pretence in regard to a property justify staying of action by a Criminal court in regard to an offence committed in and in relation to such property. In Harry Jones' case the offence was under Section 409 of the Indian Penal code in regard to certain immovable property. In (2) Chandi Kumar v. Abanidhar Roy, reported in AIR 1965 S.C. 585 , which was a case of theft of the fish from a tank, their Lordships at page 587 of the report while considering the decision in (3) S. Sanyasi apparao v. Boddepalli Lakshminarayana, reported in AIR 1962 S. C. 586 quoted from that decision the following observation with approval:- "it is settled law that where a bona fide claim of right exists, it can be a good defence to a prosecution for theft. An act does not amount to theft, unless there be not only no legal right but no appearance or colour of a legal right." 4. BY the expression "colour of a legal right" is meant not a false pretence but a fair pretence, not a complete absence of claim but a bona fide claim, however, weak. An act does not amount to theft, unless there be not only no legal right but no appearance or colour of a legal right." 4. BY the expression "colour of a legal right" is meant not a false pretence but a fair pretence, not a complete absence of claim but a bona fide claim, however, weak. This Court observed in the same case that the law was stated in 2 East PC 659 to be : "if there be in the prisoner any fair pretence of property or right, or if it be brought into doubt at all, the Court will direct an acquittal." The two decisions, one of the division Bench of the Calcutta High court and other of the Supreme Court just reviewed have settled the law. In the present case the opposite party complainant executed a deed of gift in favour of the petitioner accused long before the alleged occurrence of theft. The petitioner accused came into possession of the land under the deed of gift and claimed to be in possession of the same at the time of the alleged occurrence of theft. Before the alleged occurrence of theft had taken place, the complainant-opposite-party approached a civil court of competent jurisdiction for cancellation of the deed of gift executed by her in favour of the petitioner on the ground that the deed of gift was tainted with fraud and misrepresentation etc. The suit thus instituted by the complainant opposite party against the petitioner accused in the Court of the Munsiff of Burdwan was pending decision before the learned Munsif when the alleged theft allegedly committed by the petitioner was complained of by the opposite party before the learned Magistrate. The learned Sessions Judge observed in his Letter of Reference that till the said suit was decided by the Munsif the complainant could hardly claim to have had been in possession of the land in question on the date of occurrence of the alleged theft. The learned Sessions Judge observed in his Letter of Reference that till the said suit was decided by the Munsif the complainant could hardly claim to have had been in possession of the land in question on the date of occurrence of the alleged theft. The learned Sessions judge was quite right in recommending quashing of the proceedings before the learned Magistrate against the petitioner on the allegations of his having had committed an offence punishable under Section 379 of the Indian Penal Code in respect of the jute allegedly grown and cut on a land in regard to title and possession of which a civil suit had already been pending decision by a Court of competent jurisdiction. 5. THE learned Advocate for the state also pointed that after the report of Police enquiry was received by the learned Magistrate under Section 202 of the Code of Criminal Procedure, he had no jurisdiction to order a further enquiry by a Magistrate under Section 202. The learned Advocate further pointed out that the order issuing process as issued by the learned Magistrate against the petitioner accused under Section 379 of the Indian Penal code as a result of the second enquiry under Section 202 held by a Magistrate, was ultra vires the jurisdiction of the Magistrate issuing such process. The submission of the learned State advocate is perfectly legal. The learned Magistrate ought not to have issued the process under Section 379 of the Indian Penal Code against the petitioner accused, and he overstepped his jurisdiction in issuing the process against the petitioner under the circumstances already reviewed. 6. IN the result, the learned Sessions Judge's recommendation for quashing the proceedings for the reasons I have already discussed, is accepted, and the proceedings against the accused petitioner pending before the learned Magistrate, Burdwan be said the same are hereby quashed.