M.S. Nesargi, J.
1. In this petition, the petitioners, who were accused 1 to 5 in C.C.No. 476 of 1968 before the Additional Munsiff-cum-Magistrate, Coondapur, have been convicted for having committed offences punishable Under Section 143 of the Indian Penal Code and. Section 24 of the Mysore Cattle Trespass Act, 1966, and each of them has been sentenced to pay a fine of Rs. 25/- on each count and in default to undergo rigorous imprisonment for a month. They challenge the legality and correctness of the said conviction.
2. The prosecution case may be briefly stated as follows:-
In the afternoon of 2-84968 the complainant Nagappa (P.W. 1) went to his field and found that a cow belonging to A. 1 and A. 2 had trespassed into the field and was grazing his paddy crop. He brought a rope and took the assistance of his neighbours who have also their lands in the neighbourhood and tried to catch hold of the cow. After he caught the cow, the cow laid down on the ground and refused to get up. Ultimately, they put it in a cart belonging to P.W. 3 and proceeded to take the same to the cattle pound at Koni village which is about three miles away from Coondapur.
When they had travelled a little distance A. 2 and A. 3 appeared there on cycles and stopped the cart and asked P.W. 1 and his people to release the cow. Their request was refused and they told A. 2 and A. 5 that they were going to impound the cow in the cattle pound at Koni village, as it had destroyed their crop. A. 2 and A. 5 went away, but later when this complainant's party was near the village panchayat office at Koni, i.e.. near about the cattle pound at Koni, A. 2 and A. 5 and the remaining accused appeared there in a car. They obstructed the cart from proceeding further. One of the accused actually caught the nose-thread of the cow and all of them demanded that the cow should be released. The , complainant's party refused and as such there was hot exchange of words.
At that stage P.W. 4 who is the Chairman of the Koni village panchayat Committee and P.W. 5 who is a member of that Committee, appeared there and admonished all these accused telling them that they should not obstruct the cow being impounded in the cattle pound and if they did so, the matter would be reported to the police. At that, all the accused went away.
3. The case of the defence is that the cow belonging to A.I and A. 2 was being belaboured by P.W. 1 and his party near the foot bridge near Prakash Saw Factory and on seeing that A.I and A. 2 went and lodged a complaint with the police and then it was found that the cow had been impounded in the cattle pound at Koni village, and A. 2 went and got the cow released under a valid receipt and found that the cow was badly injured and as such got it treated by the Veterinary Doctor D. W. 1 and that this case has been launched against them as a counter-blast.
4. The learned Magistrate has placed reliance on the evidence of P. Ws. 1, 2, 4 and 5 and come to the conclusion that near about Koni village Panchayat Office all these accused went in a car and obstructed the cart of P.W. 1 and his party and one of them actually caught the nose-thread of the cow and demanded that the cow should be released and when it was not released, there was hot exchange of words between P.W. 1 and his party and the accused and at that stage P. Ws. 4 and 5 intervened and chastised the accused and then they went away, and, therefore, offences punishable Under Section 143 of the Indian Penal Code and Section 24 of the Mysore Cattle Trespass Act, have been committed by the accused.
5. Sri B. V. Deshpande, the learned Counsel for the petitioners urged that as per the provisions of Section 7 of the Mysore Cattle Trespass Act, if at all the cow had trespassed into the lands of P. Ws. 1 and 2 and damaged their crop, they could have seized the cow and impounded it in the cattle pound at Coondapur and they could not have taken the cow to the cattle pound at Koni village, and as such their action in taking the cow to the cattle pound at Koni village, is not according to law and, therefore, obstruction to such an unwarranted act does not amount to an offence. He laid stress on Section 7 (3) of the Mysore Cattle Trespass Act. That Section reads:
Cattle seized or caused to be seized under Sub-section (1) or (2) shall be sent_ within twenty-four hours of the seizure to the pound established for the village or area in which the land is situated or such other pound as the District Magistrate may specify in this behalf.
(Underlining is mine)
Sub-section (1) of the said Section deals with seizure and impounding by persons appointed for that purpose. Sub-section (2) of Section 7 deals with the rights vested in cultivator or occupier of land to seize or cause to be seized any cattle trespassing on such land and doing damage thereto or to any crop or produce thereon.
6. A reading of the above provisions makes it abundantly clear that an occupier or a cultivator of a land has a right to seize cattle trespassing into his land and damaging his crop. After seizing, the law enjoins on him to impound the said cattle within twenty four hours in a cattle-pound. The word 'Shall' used in Sub-section (3) of Section 7 in my opinion, is to be read in regard to the period of time of twenty-four hours mentioned in the said provision. I am clearly of the opinion that the word 'shall' cannot be taken to denote that the impounding must be in the cattle pound provided for that area. All that the law requires is that the impounding must be done within twenty-four hours in a cattle pound. In the result, the contention put forward by the learned Counsel for the petitioners that the act of the complainant in taking the cow to the Koni cattle pound was not according to law, cannot be accepted.
7. It was nextly argued that even if it is assumed for the sake of arguments that the prosecution has established all its facts satisfactorily, as has been held by the learned Magistrate, an offence Under Section 24 of the Cattle Trespass Act cannot be said to have been committed by any of the accused. The learned Counsel pointed out that Section 24 deals with two sets of circumstances which are regarded as offences. The first set deals with opposition to seizure of cattle liable to be seized under this Act., i. e., as per the provisions of Section 7 (1) and (2) of the Act. The second set of circumstances deals with rescuing of the seized cattle after seizure either from a pound or from any person taking or about to take them to a pound.
He further pointed out that as the cow was transported in a cart by the complainant's party to the cattle pound at Koni village and when it was proceeding near the village panchayat Office these accused appeared in a car and obstructed the cart and at that stage P. Ws. 4 and 5 interfered and chastised the accused and then the accused went away. Relying on these facts, he urged that the stage at which the accused are said to have appeared and obstructed was when the seized cow was being taken to the cattle pound by the complainant's party and, therefore, the latter part of Section 24 dealing with the second set of circumstances narrated above would come into operation and if at all these facts lie within the ambit of that part of Section 24, then only it can be said that an offence punishable Under Section 24 has been committed by the accused. Section 24 of the Cattle Trespass Act reads as follows :-
24. Penalty for Forcibly Opposing the Seizure of Cattle or Rescuing the Same. Whoever forcibly opposes the seizure of cattle liable to be seized under this Act, or whoever rescues the same after seizure either from a pound or from any person taking or about to take them to a pound, such person being near at hand and acting under the powers conferred under this Act, shall, on conviction, be punished with imprisonment for a period which may extend to six months or with fine which may extend to five hundred rupees or with both.
A plain reading of the above provision goes to show that two things are made offences under the said provisions; (i) opposing the seizure of cattle which are liable to be seized Under Section 7 of the Cattle Trespass Act, and (ii) rescuing of cattle seized, (a) when being taken to the cattle pound, (b) or from i cattle pound if already impounded. It is, hence, certain, that the latter part of Section 24 of the Cattle Trespass 1 Act would apply when cattle are rescued and not when opposition is offered to the impounding of cattle. Even according to the case of the prosecution, no rescuing took place in regard to the cow in question. All that took place was, as narrated by P, Ws. 1 and 2, i.e., stopping of the cart and demanding by the accused persons that the cow should be released. It is, hence, clear that the accused cannot be said to have committed any offence Under Section 24 of the Mysore Cattle Trespass Act.
8. In regard to the offence under (Section 143 of the Indian Penal Code, it is easily seen that though all these accused were said to be present at that time, it cannot be said that they were there with the common object of committing any offence, because no offence Under Section 24 of the Mysore Cattle Trespass Act can be said to have been committed by these accused persons. I Therefore, it will have to be held that I an offence Under Section 143 of the Indian Penal Code also cannot be said to have been committed by these accused persons.
9. In the result, this petition is allowed and the conviction and sentence passed against the petitioners by the learned Additional Munsiff-cum-Magistrate, Coondapur, in C. C. No. 476 of 1968 are set aside. They are acquitted of the offences with which they were charged.