G. B. PATTANAIK, J. ( 1 ) PETITIONERS, nine in numbers, have been convicted under S. 379, I. P. C. and have been sentenced to undergo rigorous imprisonment for four months and the conviction and sentence have been upheld by the Additional Sessions Judge, Koraput, in appeal. ( 2 ) IT is the case of the complainant (opposite party No. 2) that the land in question was given delivery of possession to him pursuant to an order under the provisions of Regn. 2 of 1956, the order being dt. 23-2-1980. Pursuant to the said order, the date of alleged possession is 8-5-1980 and subsequent to the same while the complainant was in possession of the land and had grown the paddy crop in question, the accused persons forcibly entered into the land and cut away the paddy crop that was standing on the land on 16-10-1980 at 9 A. M. ( 3 ) THE defence plea of petitioners 1,2,3, 4, 5 and 9 is that they were in possession of the land notwithstanding the so-called order under Regn. 2 of 1956 and notwithstanding the so-called delivery of possession having been given pursuant to the order (Ext. 1) and they had grown the crop in question and accordingly cut the same. The defence of petitioners 6, 7 and 8 is that they went to cut the paddy on being asked by accused Sundarsingh Harijan and Sukchand Harijan. ( 4 ) ON behalf of the complainant, 5 witnesses have been examined of whom P. W. 1 is the complainant and P. Ws. 2 and 3 are the witnesses who corroborate the evidence of P. W. 1 both with regard to the factum of possession of the complainant as well as cutting of paddy crop by the accused persons. On behalf of the defence 2 witnesses have been examined, namely D. Ws. 1 and 2. The learned Magistrate on consideration of the materials on record came to the conclusion that the complainant received delivery of possession of the land in question pursuant to the order (Ext. 1) and further had grown the crop during the relevant time. Relying upon the evidence of P. Ws. 2 and 3, the learned Magistrate further found that the accused persons entered into the disputed land and cut away the paddy crop in question. The defence evidence through D. Ws. 1) and further had grown the crop during the relevant time. Relying upon the evidence of P. Ws. 2 and 3, the learned Magistrate further found that the accused persons entered into the disputed land and cut away the paddy crop in question. The defence evidence through D. Ws. 1 and 2 was also discussed but the defence plea was negatived. On appeal, the learned Additional Sessions Judge has affirmed these findings of the learned Magistrate and consequently has affirmed the conviction and sentence passed against the petitioners. ( 5 ) MR. Mohanty for the petitioner contends that petitioners 6, 7 and 8 do not claim any right or title over the land but had gone upon the land to cut the paddy crop in question being asked by petitioners Sundarsingh and Sukchand. Therefore, there could not be any mens rea on their part in respect of the removal of the paddy in question so as to attract the provisions of S. 379,i. P. C. I find sufficient force in the aforesaid contention. A person who cuts paddy as a labourer under the direction of somebody else cannot be said to have removed the property with any dishonest intention from the possession of another. So far as the cutting of paddy by him is concerned, there is total lack of criminality in it and, therefore, he cannot be convicted for an offence under S. 379, I. P. C. Consequently, the conviction of petitioners 6, 7 and 8 must be set aside and they are acquitted of the charge under S. 379, I. P. C. ( 6 ) SO far as the other petitioners are concerned, Mr. Mohanty, the learned counsel, contends that their consistent case being that they continued to possess the land notwithstanding the paper transaction of delivery of possession, they cannot be convicted under S. 379, I. P. C. since they have cut the paddy in exercise of their bona fide claim of right. I do not find any merit in the aforesaid contention. A bona fide claim of right is no doubt a good defence in a case under S, 379, I. P. C. but mere putting up such a claim is not sufficient. An assertion by the accused with regard to his possession or a claim of right in respect of the land would not be sufficient. A bona fide claim of right is no doubt a good defence in a case under S, 379, I. P. C. but mere putting up such a claim is not sufficient. An assertion by the accused with regard to his possession or a claim of right in respect of the land would not be sufficient. There must be a reasonable doubt that the property which is the subject-matter of theft either did not belong to the complainant or that he was not in possession. A removal of the property on the assertion of a bona fide claim of right though does not constitute the offence of theft, but colourable pretence of such claim cannot be taken to be a good defence. The claim put forward by the accused must be an honest one and it will be of no avail to him as a defence, if it is found that it is a mere colourable pretence to obtain possession of the property (See, Sk. Kabir v. Arjun Sial, (1959) 25 Cut LT 249 ). In the present case, the courts of fact have already found that the land in question was given delivery of possession to the complainant on 8-5-1980. In a case of this nature where either party is claiming possession over the land, a surer test to find out whether offence of theft has been committed or not is to find out who actually grew the crop in question. The courts below not only found that the land was in possession of the complainant, but on evidence have also come to the conclusion that it is the complainant who had grown the crop in question. Such being the concurrent findings of fact, it is not permissible to be interfered with by the revisional court, and the question of accused exercising bona fide claim of right does not arise and accordingly the said contention of Mr. Mohanty, the learned counsel for the petitioners, must be rejected. In this view of the matter, the conviction of petitioners 1, 2, 3, 4, 5 and 9 under section 379, I. P. C. must be sustained. ( 7 ) MR. Mohanty, the learned counsel for the petitioners, then raises the contention that the learned Magistrate as well as the learned Additional Sessions Judge committed an error in not applying the provisions of S. 360 of the Cr. ( 7 ) MR. Mohanty, the learned counsel for the petitioners, then raises the contention that the learned Magistrate as well as the learned Additional Sessions Judge committed an error in not applying the provisions of S. 360 of the Cr. P. C. Section 360 of the Cr. P. C. enables a court, instead of sentencing the accused at once to any punishment, direct that he be released on his entering into a bond, with or without sureties, to appear and receive sentence when called upon during such period (not exceeding three years) as the Court may direct, and in the meantime to keep the peace and be of good behaviour. Sub-sec. (3) of S. 360 deals with a case of theft and under the said provision if a person is convicted of theft then the Court before which he is convicted may, if it thinks fit, having regard to the age, character and antecedents or physical and mental condition or any extenuating circumstances under which the offence has been committed, instead of sentencing him to any punishment, release him after due admonition. Section 361 of the Code provides that in a case where the Court could have dealt with an accused under S. 360 but has not done so, it shall record in its judgment the special reasons for not having done so. The provision of S. 361 makes it abundantly clear that in all cases where the conditions precedents prescribed for application of S. 360 are satisfied, the Court must apply the same or else must give special reasons as to why the Court does not apply the same. Admittedly, in the present case, neither the Magistrate nor the learned Additional Sessions Judge has taken note of the provisions of S. 360 of the Cr. P. C. Under sub-sec. (4) of S. 360 even a revisional court while exercising its power in "revision can also pass an order under S. 360. In the facts and circumstances of the present case, and taking into consideration the matter in which and the circumstances under which the offence is committed and the nature of the offence, I am of the opinion that those accused persons whose conviction under S. 379, I. P. C. has been upheld must be dealt with under sub-sec. (3) of S. 360 of the Cr. (3) of S. 360 of the Cr. P. C. and should be released after due admonition instead of being sentenced to any punishment. In the circumstances, while the conviction of petitioners Sukchand Harijan, Phula Harijan, Ramsingh Harijan, Champa Harijan, Sundarsingh Harijan and Bhokadu Harijan under S. 379, I,p. C. is maintained, they are directed to appear before the learned Magistrate within one month from today and on their appearance, the learned Magistrate may release them after due admonition in accordance with sub-sec. (3) of S. 360 of the Cr. P. C. In the event they fail to appear before the Magistrate within one month from today, then the Magistrate may take steps for their apprehension to serve the sentence which has been awarded. This Criminal Revision is accordingly disposed of. Ordered accordingly. .