R.N. Misra, J.
1. This revision is directed against an order made under Section 22 of the Cattle Trespass Act by the Sub-divisional Magistrate, Angul.
2. The complainant alleged that on 24-10-1970, his brother Dhaneswar filed a criminal case against the petitioner and others and coming to know of such prosecution, the accused persons (petitioner and others) forcibly drove away sixty heads of cattle of the complainant from the pasture ground of the village and impounded them in the kine house. On receipt of this information, the complainant went and verified that no crop of the accused persons had at all been damaged by his cattle. He released the cattle from the kine house on payment of impounding fee of Rs. 180/- and obtained proper receipt for the payment of the impounding fee. On 26-10-1970, he filed the complaint against the accused persons,
Four persons were originally proceeded against, but in regard to two of them composition was accepted and the case was allowed to proceed against the other two accused persons including the present petitioner.
3. The defence was that the animals had actually damaged their crop and, therefore, they were impounded. It was further pleaded that the complainant and his men got the crop of the accused persons damaged for which a separate complaint has been laid. As a counter blast this false case was instituted Implicating the accused persons.
4. The prosecution examined 3 witnesses in support of its case including the complainant. The defence also examined 2 Witnesses to support the defence plea.
5. The learned magistrate accepted the case of the prosecution and made an order in terms of Section 22 of the Cattle Trespass Act directing the accused person to pay a sum of Rs. 100/- each to the complainant within a period of one month from the date of the order and authorised the said amount in the event of default to be realised by way of fine as provided for under the Act. This order of the learned magistrate is impugned in this revision petition by only one of the accused persons.
6. Though the office of this Court has raised no objection to the maintainability of this revision and counsel appearing for the complainant also does not challenge the maintainability of the petition, I am of the view that no revision lies under Section 439 of the Code of Criminal Procedure to this Court.
Section 4 (o) of the Code of Criminal Procedure defining 'offence' provides that:
'offence' means any act or omission made punishable by any law for the time being in force. It also includes any act in respect of which a complaint may be made under Section 20 of the Cattle Trespass Act, 1871 (1 of 1871).
Section 20 of the Cattle Trespass Act provides :
Any person whose cattle have been seized under this Act, or, having been so seized, have been detained in contravention of this Act, may, at any time within ten days from the date of the seizure, make a complaint to the Magistrate of the District or any Magistrate authorised to receive and try charges without reference by the Magistrate of the District.
Section 22 is covered by Section 20 of [the Act. Therefore, the definition of offence is applicable to Section 22 of the Act. A person against whom an order under Section 22 of the Act is made is a person convicted on a trial within the meaning of Section 407 of the Code of Criminal Procedure find. therefore, an appeal against the conviction would lie. Ramaswami, J. in the caso [of Muruvan v. Ramabadra Naidu : AIR1957Mad742 examined this position at length and came to hold that an appeal lay provided there was an appealable sentence imposed on conviction. A Division Bench of this Court in the case of Harihar Ojha v. Laxmi Jena : AIR1959Ori116 , has endorsed the aforesaid view on principle. A 1st Class Magistrate having imposed a fine of Rs. 100/-, an appeal lay to the Sessions Judge. Sub-section (5) of Section 439 of the Code of Criminal Procedure would operate as a bar to the entertainment of this revision as an appeal lies at the instance of the petitioner.
7. I would accordingly hold that the revision application is incompetent and direct that the revision application be returned to the counsel for the petitioner for presentation in proper Court.