1. This appeal under Section 417 (3) Criminal Procedure Code has been filed in the following circumstances.
2. The appellant Shankerlal, acting on behalf of his master Chitranjan Dube made a complaint under Section 20 of the Cattle-Trespass Act, 1871, against the respondent Ramshankar and two other persons. The First Class Magistrate of Hoshangabad, before whom the complaint was made, holding that Ramshankar had illegally seized cattle belonging to Chitranjan awarded Rs. 15/- as compensation to Chitranjan and made an order for payment of Rs. 195/- by the respondent to Chitranjan as the amount of fine and expenses incurred in procuring the release of the cattle. Ramshankar then preferred an appeal before the learned Sessions Judge of Hoshangabad. The appeal was allowed and the order of the First Class Magistrate was set aside. It is against this order of the learned Sessions Judge that the appellant came up to this Court and obtained leave to appeal under Section 417(3) Cri. P. C.
3. Two points arise for consideration in this appeal. First, whether the appeal preferred before the learned Sessions Judge was competent, and, secondly, whether the order made by the First Class Magistrate under Section 22 of the Cattle-Trespass Act was legal and right. On the first point. the learned Sessions Judge held that the order passed by the First Class Magistrate under Section 22 of the Act was appealable. He found support for this view in Matru v. Dhunnilal, ILR 1950 Nag 393 : AIR 1951 Nag 287. In our opinion, the learned Sessions Judge went wrong in holding that the order of the First Class Magistrate was appealable under the Code of Criminal Procedure. An order under Section 22 of the Act is not an order of any conviction or acquittal of the person against whom a complaint has been made under Section 20. It is true that under Section 4(1) (o) Cri. P. C. 'offence' includes any act in respect of which a complaint may be made under Section 20 of the Cattle Trespass Act, 1871. But, as pointed out in the decision relied on by the learned Sessions Judge himself, the effect of this inclusion is only to confer jurisdiction on a Magistrate to hear such complaints and to hold an enquiry into the wrongful seizure and detention of the cattle but the enquiry does not result in acquittal or conviction. The order that is passed under Section 22 is only about the payment or non-payment of compensation and of the fines paid and expenses incurred by the complainant under the Cattle Trespass Act in procuring the release of. the cattle. It is not a fine. No imprisonment can be ordered in default of payment of the compensation money under Section 22. That the compensation amount awarded under Section 22 is not a fine is very clear from Section 23 which says that the compensation mentioned in Section 22 may be recovered as if it was a fine imposed by a Magistrate. If the compensation amount had been a fine under the Criminal Procedure Code, then there would have been no necessity of the 'deeming provision' contained in Section 23. An order awarding a compensation under Section 22 is not an order of conviction. Nor is an order (u) refusing to award compensation, one of acquittal. That being so the provisions in the Code with regard to appeals against convicions and acquittals do not apply to an order under Section 22.
4. The learned Sessions Judge seems to have jumped to the conclusion that the order of the First Class Magistrate awarding compensation was an order of conviction on the basis of the observation in ILR (1950) Nag 393 : AIR 1951 Nag 287 (supra), that an order under Section 22 holding that the seizure of cattle is not wrong ful does not. amount to an acquittal and revision against it is maintainable. If the learned Sessions Judge had re,ad the decision carefully, he would have seen that this observation far from supporting his view only meant that an order under Section 22 awarding compensation was not an order of conviction and so also an order refusing to award compensation was not an order of acquittal.
The same view has been expressed in Ghulba v. Emperor, AIR 1949 Nag 117 where Hidayatullah J. (as he then was) held that the person who is liable under Section 22 is not 'an accused' and is not 'convicted' of any offence. The view taken in ILR (1950) Nag 393 : AIR 1951 Nag 287 (supra) and AIR 1949 Nag 117 (supra) is also supported by the decision in In re County Council of Derbyshire. (1896) 2 QB 53, which was affirmed in In re County Council of Derbyshire (1896) 2 QB 297. That was a case in which Sections 3 and 10 of the Rivers Pollution Prevention Act, 1876, were considered. By Section 3 of that Act a person causing to fall or flow or to be carried into any stream any solid or liquid sewage was deemed to have committed an 'offence' under that Act. under Section 10 a summary order could be obtained in the county court requiring any person to abstain from the commission of an offence under the Act and any person contravening such an order was required to pay to the person complaining such sum, not exceeding .50 a day for every day during which he was in default. Under that Act such penalty could be recovered in the same manner as any debt adjudged to be due to the Court.
Dealing with these provisions Collins J. said in (1896) 2 QB 53 that the use: of the word 'offence' was not conclusive of the point that the proceedings were penal or criminal and that 'we must see what are the consequences which will follow, and if we find that what is described as an 'offence' is followed, not by punishment, but by a remedy equivalent to that for a civil wrong, then the matter is not a criminal one.' Applying this reasoning here, it is clear that what Section 22 provides is only a means of awarding compensation to the person whose cattle has been illegally seized or detained and of reimbursing him for the expenses incurred in procuring the release of the cattle. The proceedings under Sections 20 and 22 cannot, therefore, be regarded as criminal.
5. The learned Sessions Judge also erred in holding that the complaint made by the appellant before the First Class Magistrate was barred by time inasmuch as it was not filed within ten days' period prescribed by Section 20. His reasoning was that the complaint though filed within time was presented before the Assistant Superintendent of the office of the District Magistrate and Collector, and that it was put up before the District Magistrate after the expiry of ten days' period from the date of the seizure. This view is clearly untenable. The complaint was made to the District Magistrate. If the physical delivery of the complaint Was taken by the Assistant Superintendent of the Office of the District Migistrate, it does not mean that it was not presented to the District Magistrate.
6. Coming to the merits of the order of the District Magistrate, it is unassailable so far as the award of compensation of Rs. 15/- to the appellant is concerned. The direction with regard to the payment by the respondent of Rs. 195/- to the appellant on account of fine and expenses incurred by him in procuring the release of the cattle is erroneous for the reason that this amount of Rs. 195/- included an amount of Rs. 180/- which the appellant had merely deposited. with the authorities and Which is to be refunded to him. This is not disputed by the learned counsel for the appellant. The appellant is, therefore, entitled to Rs. 15/- only on account of the fine and expenses incurred by him in procuring the release of the cattle. Thus the total amount that the appellant is entitled to get from the respondent Ramshanker is Rs. 30/-only.
7. As the order of the learned Sessions Judge setting aside the order of compensation passed by the First Class Magistrate cannot be regarded in any sense as an order of acquittal, this appeal is really not competent. But there is no bar to our exercising revisional jurisdiction for correcting the error that has crept in the order of the First Class Magistrate with regard to the payment of Rs. 180/- to the appellant.
8. For these reasons, the decision of thelearned Sessions Judge of Hoshangabad is setaside and the order of the First Class Magistrate,Hoshangabad, is upheld with this modificationthat the respondent Ramsankef shall pay to theappellant Rs. 30/- as compensation under Section 22of the Act.