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Janardan Sahu Vs. Arakhit Sahu - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtOrissa High Court
Decided On
Case NumberCriminal Revn. No. 563 of 1965
Judge
Reported inAIR1967Ori150; 33(1967)CLT226; 1967CriLJ1354
ActsForest Act, 1927 - Sections 70; Code of Criminal Procedure (CrPC) , 1898 - Sections 439; Evidence Act, 1872 - Sections 114; Cattle Trespass Act, 1871 - Sections 20 and 22
AppellantJanardan Sahu
RespondentArakhit Sahu
Appellant AdvocateU.N. Rath (2), Adv.
Respondent AdvocateA. Mohanty, Adv.
DispositionApplication dismissed
Cases ReferredHansa v. State
Excerpt:
.....the discussion made in the order clearly suggests that they were all found in the anabadi land and that the anabadi land did not form part of either the protected forest or the reserved forest......was heard by sri b.b das, judicial magistrate. first class. khandapara, circuit at ranpur. the learned magistrate on hearing the parties passed the aforesaid order against which the petitioner has now come in revision to this court. 3. under section 11 of the cattle trespass act, 1871, persons authorised to seize, or cause to be seized, any cattle doing damage are the persons in charge of public roads, pleasure grounds, plantations, canals, drainage works, embankment and the like. but in section 70 of the indian forest act, 1927, there is a deeming clause provided which says: '70. cattle trespassing in a reserved forest or in any portion of the protected forest which has been lawfully closed to grazing shall be deemed to be cattle doing damage to a public plantation within the.....
Judgment:
ORDER

K. Ahmad, C.J.

1. This is a case arising out of Section 22 of the Cattle Trespass Act. 1871. Thereunder the petitioner has been directed to pray Rs 40/- to the complainant and Sansari Sahu and Bula Swain owners of buffaloes towards compensation for the loss caused in releasing buffaloes and incurring cost of litigation in this case The prosecution story, as made out in the evidence and in the petition of complaint, was that on 24-8-64 Natabara Sahu and Chandra Bhuyan Halias of the complainant were tending 5 heads of buffaloes belonging to the complainants Sansari Sahu and Bula Swain in anabadi land and at that time the accused Naba, Natabara, Kunja, Duruja and Bhima arrived there and seized them from that anabadi land and decided to impound them in kine house. 'They drove the buffaloes to beat house where accused Janardan joined with them and all those accused persons drove the buffaloes to Gopalpur .Kine house and impounded them. On the next day the complainant and Sansari Sahu and Bula Swain rescued the buffaloes from the Kine house after paving a sum of Rs. 27. Hence they filed the complaint alleging that the impounding done by the petitioner and others was illegal and as such they were entitled to compensation as provided in Section 22 of the Cattle Trespass Act. The allegation made by the complainant was denied by the petitioner and his other co-accused companions Further in support of their defence they examined three witnesses. Their case was that these buffaloes were carrying sal logs from the forest and the culprits seeing them ran away leaving the stolen logs and the buffaloes. Accordingly the forest guard impounded the buffaloes in the Gopalpur Kine house.

2. The case was heard by Sri B.B Das, Judicial Magistrate. First Class. Khandapara, circuit at Ranpur. The learned Magistrate on hearing the parties passed the aforesaid order against which the petitioner has now come in revision to this Court.

3. Under Section 11 of the Cattle Trespass Act, 1871, persons authorised to seize, or cause to be seized, any cattle doing damage are the persons in charge of public roads, pleasure grounds, plantations, canals, drainage works, embankment and the like. But in Section 70 of the Indian Forest Act, 1927, there is a deeming clause provided which says:

'70. Cattle trespassing in a reserved forest or in any portion of the protected forest which has been lawfully closed to grazing shall be deemed to be cattle doing damage to a public plantation within the meaning of Section 11 of the Cattle Trespass Act. 1871 and may be seized and impounded as such by any Forest Officer or Police Officer.''

So under the terms of this Section, reserved forest and protected forest have been equated to public plantation. Further once there is any cattle trespassing in a reserved forest or protected forest, it shall be deemed that the cattle was doing damage to such plantation, Therefore this much of the submission made on behalf of the petitioner is fully supported by these provisions of the law that in case it is found that the buffaloes in the course of their movement, as alleged by the defence had strayed into the protected forest or reserved forest it shall be deemed that they were doing damage to a public plantation and no evidence will have to be given by the person impounding those buffaloes that he impounded them while they were doing damage to the forest. But unfortunately the finding given here by the learned Magistrate who tried the case, is to the effect that

'in the present case the buffaloes belonging to complainant Sansari and Bula which were impounded by the forest guard neither caused any damage to the plantation not there is any evidence to show that they were straying in the Reserve Forest The forest guard (accused Janardan) admits that the buffaloes were seized from the anabadi land, outside forest area. Thus the seizure and retention of the buffaloes by the Forest guard are illegal,'

This finding given by the learned Magistrate has been strongly challenged by Mr. Rath, appearing on behalf of the petitioner on the ground that there is a clear evidence given on behalf of the petitioner that the buffaloes were carrying Sal logs from the forest and the culprits ran away leaving the stolen logs and the buffaloes when they were detected by the Forest guard. In support of this contention an attempt has been made by the learned counsel to draw my attention to the judgment of the counter case Unfortunately that judgment is not on the record, and I think it is too late for the petitioner to make any application for taking that judgment as additional evidence in the present case. I have carefully gone through the order of the learned Magistrate and I do not find it anywhere stated that the buffaloes had at any point of time strayed into the reserved forest or the protected forest. On the contrary the discussion made in the order clearly suggests that they were all found in the Anabadi land and that the Anabadi land did not form part of either the protected forest or the reserved forest. Therefore the seizure and impounding of the buffaloes in the present case have been rightly held by the learned magistrate to have been done illegally.

4. The second contention raised by the learned counsel is that in any case there is no evidence on the record to show that the learn ed Magistrate, who tried the case, was authorised to receive and try charges as contemplated in Section 20 of the Cattle Trespass Act, 1871. Unfortunately this point does not seem to have been raised on behalf of the petitioner before the learned Magistrate himself, nor there is any material before me to suggest that he had no authority to receive or try the charges as made by him in the present case On the contrary the presumption in law is that the proceeding by the Magistrate must have been taken in accordance with law. Therefore. I think it is now too late for the petitioner to raise this point for the first time at this stage in revision.

5. The third contention that has been stressed before me in support of the application is that even if it is found that though at the time of the seizure the buffaloes had already come out of the forest but they had earlier strayed into it and had been pursued from there, the seizure would not be illegal in law. In support of this contention reliance has been made by the learned counsel on the decision in Hansa v. State, AIR 1954 All 381, As a pure principle of law the contention cannot be said to be altogether without any force. But in view of the finding, as already discussed above that there is no evidence on the record to prove that at any point of time the buffaloes had in fact strayed into the forest, the discussion on this point in the circumstances, of the case is purely academic.

6. The last contention raised by the learned Counsel is that the quantum of compensation allowed to the opposite party is contrary to the terms of Section 22 of the Cattle Trespass Act Therein the compensation provided is

'reasonable compensation, not exceeding one hundred rupees to be paid by the person who made the seizure or detained the cattle, together with all fines paid and expenses incurred by the complainant in procuring the release of the cattle.'

In the present case the compensation of Rs. 40/-has been allowed by the Trial Court 'for the loss caused in releasing buffaloes and incurring cost and litigation in this case'. Therefore, in view of the provision made in Section 22 of the Cattle Trespass Act, grievance has been made on behalf of the petitioner that the quantum of compensation allowed is illegal for two reasons (1) that Section 22 does not allow grant of any compensation for incurring cost and litigation, and (2) that such a claim has not been made either in the evidence or in the petition of complaint In my opinion, neither of these two grounds can justify the contention made by the learned Counsel that the compensation allowed in this case is illegal--What Section 22 provides is a reasonable compensation and that reasonable compensation will naturally mean the compensation which as a result of the wrong act done by the accused is found sufficient to compensate the complainant for the loss incurred by him. In this case, the loss caused in releasing the buffaloes and incurring cost and litigation was used by the learned Magistrate only as a measure of compensation which, in the circumstances of the case, the complainant was entitled to receive. Therefore it cannot be said that in law any compensation for incurring cost and litigation cannot be allowed at all.

7. Then as to the allegation made that there is no claim made either in the petition of complaint or in the evidence as the loss incurred tor incurring cost and litigation it will suffice to say that in law it will always be necessary in order to justify the claim for compensation to give broad details in relation thereto, and if no detail is given it is always open to the court trying the case to say that in the absence of such a detail the complainant may not be entitled to any arbitrary figure as suggested in the course of making the claim. Unfortunately here what is said to have been claimed in the petition of complaint is only the sum of Rs. 27.50 which was incurred by the complainant in getting the buffaloes released from the kine house. There is no allegation made therein regarding the loss incurred for incurring cost and litigation. In that view of the matter I think to this extent the learned Counsel appearing for the petitioner is right that the compensation in the present case, even on the findings as given by the trial court, should not have been more than Rs. 27.50. Accordingly the quantum of compensation, as allowed by the Trial Court, is reduced from Rs. 40/-to Rs. 27.50.

8. In the result, therefore, the application is dismissed, subject to the modification in the quantum of compensation as stated above.


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