Norman Macleod, Kt., C.J.
1. The petitioners were convicted by the Sub-Divisional Magistrate, Bandra, under Section 22 of the Cattle Trespass Act I of 1871, and the complainant was awarded as compensation Rs. 100, together with the fine of Rs. 26-8-0 which he had paid. The learned Magistrate directed that the total Amount of Ra. 1-26-8-0 should be recovered in equal amounts of Rs. 42-2-8 from each of the petitioners.
2. In appeal to the Sessions Judge the first point which was taken was that there was no appeal. The second point was that if there was an appeal the compensation awarded was really a fine, and the effect of the decision of the Magistrate was that each of the petitioners had been fined Rs. 42-2-8, and, therefore, no appeal lay under Section 418 of the Criminal Procedure Code. It is admitted that a person convicted under Section 22 of the Cattle Trespass Act can be said to be convicted of an offence. Therefore an appeal would lie unless the restrictive provisions of Section 413 applied to the case. That question depends upon whether it can be said that compensation awarded to a complainant under Section 22 of the Act is a fine. We see no necessity why the Court should exert its ingenuity to discover that what is stated by the Legislature to be compensation, which is one thing, is to be included within the term 'fine' as laid down in the Penal Code and other penal Statutes, which is another thing. It is quite true that a person who is ordered to pay compensation, and pays it, is out of pocket to the extent of the amount paid, and the person who is ordered to pay a fine, and pays it, is also out of pocket to the extent of the fine, but it does not follow that the nature of the penalty exacted is the same. It is quite true that under Section 23, the compensation which is awarded under Section 22 should be recovered in the same way as a fine. There again the method of recovery has nothing whatever to do with the nature of the penalty, and in this respect it may be remarked that there is no provision under which the Court can give a sentence of imprisonment in default of the compensation not being paid. If the Legislature had intended that compensation awarded under Section 22 of the Cattle Trespass Act was to be treated exactly in the same way as a fine for the purpose of considering whether the sentence was appealable or not, then the Legislature could easily have done so. For the present the Legislature has not done so. and there is no reason why we should go out of our way in order to remedy the defect, if it is one. An appeal lies against a conviction under Section 408, and, id my opinion, the Sessions Judge was wrong in deciding that Section 413 of the Criminal Procedure Code applied. There is, therefore, no necessity to consider the point that although the amount of compensation awarded to the complainant against all the petitioners was over Rs. 50, because each petitioner was liable to pay under Rs. 50, therefore it could be said that each petitioner had .been fined less than Rs. 50. I think the rule must be made absolute and the appeal must go back to the Sessions Judge to be dealt with according to the merits.
3. I agree.