JUDGMENT : P.K. Mohanti, J. - This Criminal Revision is directed against on order of acquittal passed by the learned S.D.M. Jagatsingpur. 2. Prosecution case was that p.w. 3 Golab Khan is the owner in possession of 13 gunths of land appertaining to, plot No. 606 under khata No. 8 in mouza Jhankeswar under Tirtol P.S. He let out the land on bhag to p.w. 2 Benu Behera (Petitioner) who was in cultivating possession of the same for about 15 years prior to the occurrence. During the year 1969, p.w. 2 raised paddy crops which were ripe for harvest. On 23-12-1969 at about noon the opposite parties forming themselves into on unlawful assembly cut and removed the crops despite protests by p.w. 2. F.I.R. was lodged by p.w. 2 on 48-12-1-1969 and investigation was taken up. In course of investigation, the police seized a bundle of paddy sheaves under the seizure list, Ext. 2. After due investigation, the opposite parties were charge-sheeted under Sections 143 and 379, Indian Penal Code. Accused Kanhei Bhoi and Sanei Bhoi are reported to have died in the meantime. 3. The opposite parties denied the charges and pleaded innocence. Their contention was that one Ananta Charan Das was the recorded owner of the land in question and he leased out the same to one Bari Swain. After the death of Hari Swain, his daughter Nisamani Dei and mother Rani Bewa possessed the land. On 11-8-1960 Rani Bewa acting as the grand-mother guardian of the minor Nisamani Dei executed a sale deed (Ext. D) in favour of opposite party No. 14 Udayanath Panja and since then he has been in possession through his bhag tenants Khetra Mohan Sahu (opp. party No. 1) and one Krushna Mohan Sahu. During the year of occurrence the opp. party No. 1 Khetra Mohan Sahu cultivated the land and raised paddy crop thereon as a bhag tenant of opp. party No. 14. 4. At the trial, both parties produced oral and documentary evidence in support of their respective contentions and on a consideration of the same the learned S.D.M. returned the following findings: (i) p.w. 2 Benu Behera was in possession of the land as a bhag tenant of p.w. 3 Golab Khan, the owner of the land. (ii) p.w. 2 had grown the crop in question and he was entitled to get the seized paddy. (ii) p.w. 2 had grown the crop in question and he was entitled to get the seized paddy. (iii) The defence contention that opp. party No. 14 Udayanath Parija had grown the crop in question through opp. party No. 1 Khetra Mohan Sahu was not acceptable. (iv) The opposite parties had cut and removed the crops on the date of occurrence. He, however, acquitted the opposite parties mainly on the ground that there was a bona fide dispute of title. The relevant observations of the learned S.D.M. are extracted below: To my mind it appears that accused Udayanath Parija on the strength of Ext. D, the sale deed executed by Rani Bewa might be working under a bona fide dispute regarding title to the property and as such he might have been actuated under the notion that he has his right to be in possession of the said land and in exercise of the said right he might have engaged the other accused persons just as labourers to cut paddy grown in his own land. In the prevailing circumstances, the dispute seems to relate to claim of title regarding the property and crop grown therein. 5. It is contended on behalf of the Petitioner that the order of acquittal is tainted with a serious legal infirmity which has resulted in grave failure of justice. 6. The learned Counsel appearing on behalf of the opposite parties contended that it is only in glaring cases of injustice resulting from some violation of fundamental principles of law by the trial Court in course of trial that the High Court is empowered to set aside on order of acquittal and direct a re-trial of the acquitted accused persons. He invited my attention to the following observations of their Lordships of the Supreme Court in the case of Amar Chand Agarwalla Vs. Shanti Bose and Another, etc., . The jurisdiction of the High Court is to be exercised normally u/s 439, Code of Criminal Procedure, only in exceptional cases, when there is a glaring defect in the procedure or there is a manifest error of point of law and consequently there has been a flagrant miscarriage of justice. 7. Shanti Bose and Another, etc., . The jurisdiction of the High Court is to be exercised normally u/s 439, Code of Criminal Procedure, only in exceptional cases, when there is a glaring defect in the procedure or there is a manifest error of point of law and consequently there has been a flagrant miscarriage of justice. 7. Bearing in mind the above observations made by their Lordships that the revisional jurisdiction of the High Court will not be lightly exercised, I still think that this is one of those cases which must be regarded as "an exceptional lase" where interests of justice require interference by this Court for correction of a manifest illegality and on order setting aside the acquittal is necessary for the prevention of possible gross miscarriage of justice, because the learned Magistrate has failed to apply his mind judicially to the evidence on record and has written a judgment which contains errors of record and speculative arguments ignoring positive and direct materials available on record. 8. The offence of their as defined in Section 378, Indian Penal Code consists in moving the movable property of a person out his possession without his consent, the moving being in order to the taking of the property with a dishonest mention. Dishonest intention is normally ascertained from the circumstances of the case. Where the alleged the consist in the removal of crop grown on the land the real testes as to which of the part is had grown the crop. A person who removes crops from the land which is in the possession of another, knowing that the crops have been raised by the latter, cannot escape the liability for theft by merely showing that he has a claim of title to the land upon which the crops were grown. The question m whom title to the land vests is foreign to the offence of theft. 9. It is in evidence that possession of p.w. 3 over the land in question had been declared by the criminal Court in a proceeding u/s 145, Code of Criminal Procedure as per order dated 18-7-1960 (Ext. 6). Opp. party No. 13, Sk. Rahmat Ali was a party to that proceeding and he had claimed possession over the land as a bhag tenant under the said Rani Bewa. But his claim was found to be false. Moreover, Nisamani Dei, the alleged vendor of opp. 6). Opp. party No. 13, Sk. Rahmat Ali was a party to that proceeding and he had claimed possession over the land as a bhag tenant under the said Rani Bewa. But his claim was found to be false. Moreover, Nisamani Dei, the alleged vendor of opp. party No. 14 describing herself to be a major had filed on affidavit in that proceeding admitting the title and possession of the Petitioner. Vide affidavit dated 16-2-1960. The contention of the opp. party No. 14 is that Nisamani Dei was a minor on 11-8-1960 and that Rani Bewa acting as her guardian sold the land to him on that date. There is, however, nothing on record to show that the Petitioner was evicted from the land in due course of law at any time after the order u/s 145, Code of Criminal Procedure was passed. During the recent settlement operations, the name of p.w. 3 was recorded as a tenant in respect of the land in question vide parcha (Ext. 5). The learned S.D.M. appears to have overlooked this important piece of evidence when he says: The settlement operation is since over. Had p.w. 3 got any Parcha or R.O.R. of the present settlement what prevented the prosecution to file such documents in support of its case. In the absence of such documents oral testimony of p.w. 3 that he is the recorded tenant in respect of the disputed land cannot be accepted as true. This is apparently on error of record. The parch a issued in the name of p.w. 3 during the recent settlement operations has been proved and marked as Ext. 5. On, a consideration of the evidence led by the parties the learned Magistrate came to the finding that p.w. 2 Benu Behera was In possession of the disputed land as bhag tenant under Golab Khan, the owner of the land - vide paragraph II of the judgment. On his own findings he should have held that the claim of right by the opp. party was not bona fide, but a colourable pretence. The mere fact that opp. On his own findings he should have held that the claim of right by the opp. party was not bona fide, but a colourable pretence. The mere fact that opp. party No. 14 obtained a sale deed and put forward a claim to the property would not save him from the consequences of removing the crops raised by p.w. 2 if his intention was to take the property out of possession of p.w. 2 without his consent and to cause wrongful gain to himself or wrongful loss to p.ws. 2 and 3. In view of the finding that p.w. 3 was in possession of the land in pursuance of on order u/s 145, Code of Criminal Procedure it is impossible to say that the removal of crop by the opp. party was under a bona fide claim of right. 10. The learned Magistrate again seems to have fallen into a serious error when dealing with the question of delay in lodging the F.I.R. According to him the delay of about 6 pays in lodging the F.I.R. created suspicion and it was very fatal to the prosecution case. In support of this finding he has cited Khedu Mohton and Others Vs. State of Bihar, and on unreported decision of this Court in Criminal Appeal No. 13 of 19663. These decisions do not lay down a universal proposition that in all cases the delay in lodging F.I.R. is fatal, to the prosecution case. The effect of such delay would vary from case to case. In the instant case, the prosecution case about the removal of the crops having been found to be true, the learned Magistrate should have considered the relevance of the question of delay in lodging the F.I.R. 11. Since I propose to send the case back on remand, because of the bar under Sub-section (4) of Section 439, Code of Criminal Procedure, I do not express any opinion on the merits of the case; last it should prejudice any of the parties at the re-trial and impede a free decision of the case by the Magistrate. 12. I allow this revision set aside the order of acquittal and direct a re-trial of the case by some other Magistrate competent to try it according to law. 12. I allow this revision set aside the order of acquittal and direct a re-trial of the case by some other Magistrate competent to try it according to law. After remand, the case will stand transferred to the file of the Chief Judicial Magistrate, Cuttack who in his turn, may transfer it to some other Magistrate for retrial. Final Result : Allowed