1. This is a Rule calling upon the District Magistrate ofHowrah and the complainant to show cause why the conviction and sentence passedon 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 ownerthereof, acted bona fide in catching fish in the said bheel.

2. The facts, so far as are necessary for the disposal ofthis Rule, shortly, are these: one Ibrahim Mistry purchased a certain share inthis disputed bheel from the widow of one Beuch Jemada. The latter sold toIbrahim for herself, and as guardian of her minor son and minor daughter. Itappears that subsequently there was a sale of certain other shares in thisbheel to the accused Matlab. The accused having purchased this last mentionedshare caught fish in this bheel.

3. The question that arises is whether his act in catchingfish in this bheel by virtue of the conveyance last referred to, was a bonafide act or not.

4. Now having regard to the facts found by the learnedMagistrate, it is impossible to come to the conclusion that the act of catchingfish in this bheel, by virtue of the conveyance last referred to, on the partof the accused Matlab was not bona fide and in that view of the matter theconviction 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 Courthaving been disposed of by a first class Magistrate, who was empowered todispose of appeals from the decisions of 2nd and 3rd class Magistrates underthe provisions of section 407, sub-clause (2) of the Criminal Procedure Code,the application to this Court, without going to the Sessions Judge and askinghim to make a reference to this Court, was not in order. In support of thiscontention 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 RashBehari v. Phani Bhusan [1920] 48 Cal. 534 - 22 Cr. L.J. 650 - 63 I.C. 410. Weare 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 tothe Sessions Judge and move him for a reference to this Court. But so far asthis Rule is concerned, we cannot discharge this Rule on that ground. Theapplication having been heard and the Rule having been granted, we are bound todispose of the Rule on the merits.

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Abdul Matlab vs.Nanda Lal Khatel (22.12.1922 - CALHC)