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William Roger Fernandez and ors. Vs. Emperor. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMumbai
Decided On
Judge
Reported in1949CriLJ335
AppellantWilliam Roger Fernandez and ors.
RespondentEmperor.
Excerpt:
- .....2nd april 1946, the complainant filed a complaint in the court of the magistrate under section 20, cattle trespass act. this com-plaint wag registered and enquired into by the magistrate who convicted william and also his servant sk. rasul for having 'seized a pair of bullocks and impounded it in contravention of the cattle trespass act. the learned magistrate-convicted be to the accused and sentenced william to a fine of es. 25 and sk. rasul to es. 15. out of these fines es. 12 were to be paid to the complainant as compensation under section 545 (1)(a), criminal p. c. be to william and his servant sk. rasul preferred an appeal. the appellate court confirmed the finding that the pair of bullocks was illegally seized and impounded. it however held, and correctly, that no fine can be.....
Judgment:
ORDER

Padhye, J.

1. The accused, William (who is now reported to have died) was the owner of survey No. 75 of mauza Umri. Over a portion of the field is a kotha which belonged and is in the possession of the complainant's mother. On the ground that the complainant's bullocks did damage to the field of. the accused, the bullocks were seized and sent to the cattle pound on 24th March 1946.

2. On 2nd April 1946, the complainant filed a complaint in the Court of the Magistrate under Section 20, Cattle Trespass Act. This com-plaint wag registered and enquired into by the Magistrate who convicted William and also his servant Sk. Rasul for having 'seized a pair of bullocks and impounded it in contravention of the Cattle Trespass Act. The learned Magistrate-convicted be to the accused and sentenced William to a fine of Es. 25 and Sk. Rasul to Es. 15. Out of these fines Es. 12 were to be paid to the complainant as compensation under Section 545 (1)(a), Criminal P. C. be to William and his servant Sk. Rasul preferred an appeal. The appellate Court confirmed the finding that the pair of bullocks was illegally seized and impounded. It however held, and correctly, that no fine can be imposed on a complaint under Section 20, Cattle Trespass Act. The Magistrate trying such a complaint can, under Section 22 of the Act, award to the complainant compensation for the loss caused by the seizure or detention by the accused. This compensation to be awarded would include the amount which the complainant had to spand for procuring the release of cattle.

3. The appellate Court found that the complainant was entitled to Bs. 6 as compensation under S, 22, Cattle Trespass Act and it ordered that each of the accused should pay Rs. 3 as compensation to the complainant. It further directed that each of the accused should pay to the complainant RS. 7.40 as compensation under Section 545 (1)(a), Criminal P. C. be to the accused have filed this revision.

4. It hag been correctly urged that no com. pensation can be awarded under Section 545 (l)(a), Criminal P. C, as this is not a case in which a fine has been imposed in appeal. The order imposing fine by the first Court was correctly set aside by the appellate Court, What is awarded by the appellate Court is compensation under s, 22, Cattle Trespass Act which is not a fine as contemplated by Section 545 (l), Criminal P. C. In Mumiey Mirza v, King-Emperor' where the accused was dealt with under Section 562, Criminal P. C, Wazir Hasan J. C. observed that the award of Rs. 50 as compensation under 3. 545, Criminal P. C, was illegal and without jurisdiction and it was consequently set aside by him in revision. I entirely agree with the view taken by Wazir Hasan J. C, and hold that the award of compensation under Section 545 (l)(a), Criminal P, C, in the present case was without jurisdiction, and it 19 accordingly set aside.

5. But for this one ground which prevails there appears to be no force in the other grounds raised in this revision. It is contended that the complainant could not validly present his complaint as under Section 20, Cattle Trespass Act it is only the owner of the cattle who can make a complaint either in person or by an agent personally acquainted with the circumstances of the case. There, is nothing on this record to show that the complainant Kaikobad was not an agent of hi3 mother and was not personally acquainted with the circumstances of the case. It is not also clear from the record whether the pair of bullocks actually Seized and detained belonged to the complainant himself or to his mother, though it is clear that the kotha in survey No. 75 of mauza Umri belonged to the complainant's mother. The objection was raised for the first time in revision.

6. It was nest urged that the complaint was not filed within 10 days as required by law. There is no force in this ground as the com. plaint was actually filed oh 2nd April 1946, that is on the 10th day from the date of seizure which was 24th March 1946.

7. In the next ground it is urged that the trial Magistrate was not competent to entertain the complaint under Section 20, Cattle Trespass Act. No such objection was raised in the trial Court. According to Section 20 of the Act a complaint can be entertained either by a Magistrate of a district or any other Magistrate authorised to receive and try the charges under the Cattle Trespass Act without reference by the Magistrate of the district, IE an objection was raised in time it could have been shown that the trial Magistrate was one who was authorised to receive and try the charges under the Cattle Trespass Act.

8. In ground no. 4 it is contended that no compensation for loss caused by the seizure or detention should have been awarded as the same was not expressly claimed in the complaint. I do not find any force in this contention as the complaint was filed under Section 20, Cattle Trespass Act, and it is for the Magistrate to give relief under Section 22 of the said Act.

9. The other grounds in the application for revision are equally without force. The order of the appellate Court is upheld except for the fact that the accused applicants would not be liable to pay Its. 7.40 each as compensation under Section 545 (l)(a), Criminal P. C. The amount, if paid, should be refunded. the revision is partly allowed.


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