R.L. Narasimham, C.J.
1. This is a revision against the judgment of the Sub-Divisional Magistrate, Bhubaneswar convicting the petitioners under Section 323,1. P. C. and sentencing them to pay a fine of Rs. 20/- each; in default to undergo simple imprisonment for seven days each. The petitioners were placed on trial for offences under Section 323, I. P. C. and Section 24 of the Cattle Trespass Act on the allegation that on I0th August, 1961 in the evening they forcibly rescued their cattle, while they were being taken to the cattle., pound by the complainant. At the time, of rescue, they were alleged to have caused injuries to the complainant. It was alleged by the complainant that the cattle damaged his paddy crop in a field known as Haribandha Chak in village Kantabad. The complainant saw the damage and also noticed that petitioners Rama Sethi and Govinda Sahu were standing on a ridge close-by and deliberately allowed the cattle to graze the paddy crops. When they did not listen to his protest he attempted to seize the cattle and take them to the pound.
It was alleged that Rama went to the village, collected the other petitioners and then they all came there, severely assaulted the complainant and rescued the cattle. The trial court, however, did not accept the evidence regarding damage to the crops by the cattle. His finding on this point is as follows:
'The evidence of the P. Ws. as such is not sufficient to show that the P. W. 1 (complainant) seized the cattle as they trespasses upon the land and damaged the crops.'
Having thus held that the seizure was not justified, he, however, thought that the petitioners had no justification for assaulting the complainant. Hence, while acquitting them of the offence under Section 24 of the Cattle Trespass Act, he convicted them under Section.323. I. P. C.
2. Mr. Kanungo for the petitioners urged that once the trial court came to a finding that the seizure of the cattle was not justified, the petitioners would be entitled, in exercise of their right of private defence of property, to rescue the animals even by use of force, if necessary. Here the force usedwas not excessive and that, consequently, the petitioners were entitled to an acquittal.
3. There is doubtless some conflict on the question as to whether if the seizure of cattle was unlawful, the owner of the cattle would be justified in exercise of the right of private defence of property in rescuing them. One view is that the owner is entitled only to compensation in civil court or to apply to the Magistrate concerned under Section 20 of the Cattle Trespass Act and that he had no right to rescue the animals by the use of force: The leading decision in support of this view in the AIR 1943 Oudh 280, Dayal v. Emperor where following Aradhun Mondulv. Myan Khan, 24 Suth WR Cr 7 and Empress v. Ramjiawan, 1881 All WN 158 it was held that by illegally impounding cattle no-offence either of mischief or of theft was committed and that, consequently, there was no right of private defence. But a contrary view was taken in AIR 1946 Nag 221, Madra Damn v. Emperor and AIR 1959 Raj 124, Birdha v. State where it, was held that illegal seizure of cattle with a view to impound them is theft because though the person who has seized the animals had no intention to cause wrongful gain to himself, nevertheless his intention was to cause wrongful loss to the owner of the animals. The learned Judge in the Nagpur Case dissented from the view taken in 24 Suth W. R. Cr. 7. This view has been followed in a later Lahore decision reported in AIR 1947 Lah 380, Jiwana v. Emperor.
4. With respect I am inclined to agree with the Nagpur view. If a person knowing that the cattle have not damaged his crops seizes them and drives them towards the pound his intention is obviously to compel the owner of the animals to incur some expenditure in releasing them from the pound and also to deprive the owner temporarily at any rate of the use of the animals. If they are milch cows he deprives the owner of the supply of milk for some days. Similarly, if they are bullocks, he deprives the, owner of their use for ploughing or other agricultural purposes. Thus his intention to cause wrongful loss to the owner is clear from the definitions given in Sections 23 and 24 of the Indian Penal Code. The view taken ot wrongful loss in AIR 1943 Oudh 280 following 24 Suth WR Cr 7 and Faiyaz Khan v Rex. AIR 1949 All 180, seems, with great respect, too narrow.
5. The position may, however, differ if the seizure of the cattle, though not justified was due to bona fide mistake. In such an event, no offence of theft may be said to have been committed by their being driven to the pound because the necessary criminal intention and knowledge are wanting as was found in AIR 1949 All 180, where when the cattle entered the sugarcance field, the owner of the field in good faith thought that his sugarcane had been damaged but it was subsequently found that no damage was done. In such circumstances, the learned Judge of the Allahabad High Conrt held that the seizure was clone under bona fide belief because the cattle had trespassed info the field of the person who seized the animals. Hence, there was no dishonest Intention and no right of private defence against such seizure.
6. Here, however, the plea of bona fide cannot stand. The complainant's specific case was that he saw the cattle damaging his paddy crops and first protested to two of the petitioners, namely Govind and Rama. But when they, disregarded his protest he seized the animals and then one of them went to the village, collected two more persons and then the rescue took place. But the lower court did not accept the complainant's evidence as regards entry into his field of the cattle and the damage to his crops. Hence, it must be held that the complainant deliberately seized the animals knowing that they had not entered his field of damaged his crops. His action cannot therefore be said to be bona fide.
7. For these reasons, 1 must hold on the finding of the trial court that the petitioners had right of private defence of property and that the injuries caused to the complainant were not excessive. Their conviction u/s. 323, I. P. C. and the sentence passed for the offence are set aside and they are acquitted.