(1) This is a revision preferred against the conviction and sentence by the learned Sub-Magistrate of Tirumayam in C. C. No. 37 of 1959, confirmed by the learned District Magistrate of Tiruchirapalli, in C. A. No. 76 of 1959.
(2) The short facts are: On 25-10-1958, at 10 A. M. a bull and cow belonging to the accused were grazing on the fields belonging to the complainant's master Sethu Raman Chettiar of Pasumadam. P. W 4 caught them and was taking them to the pound. While he was going near the Vachakasalai the accused who is the owner of the cattle asked him not to take them to the pound. But P.W. 4 persisted and stated that they had damaged his mater's crops and if the accused wanted the cattle to be not taken to the pound he should approach his master. The accused became irritated and beat P.W. 4 with his chappals and rescued the cattle forcibly from the hold of P.W. 4. Thereupon P.W. 4 informed his master and a complaint was filed.
(3) The case for the accused was one of total denial of the commission of the offence and that he had been falsely implicated on account of enmity.
(4) Both the Courts below found the accused guilty under both the charges, namely, under the Cattle Trespass Act, and also for beating P.W. 4 with chappals and awarded a fine of Rs. 250/- under S. 24 of the Cattle Trespass Act and Rs. 250 under S. 355 I.P.C. with appropriate default sentences.
(5) I am bound by the concurrent findings of fact based on relevant and adequate evidence.
(6) The interesting point of law taken by the learned advocate Mr. R. Santhanam, is whether this P.W. 4 can be considered to be a cultivator of occupier within the meaning of S. 10 of the Cattle Trespass Act (For an uptodate discussion of S. 10 see H. R. A. O. Cattle Trespass Act (Wadhwa and Co.) (1958) 3 Ch. 3 and foll; and the AIR Manual (Civil and Criminal) 2nd Edn. (1960) Vol. 1 pp. 863 and 864).
(7) Section 10, contemplates certain sets of persons as those who alone are authorised to seize cattle under certain circumstances. The first of them is the cultivator of the land. Though there is apparently no difficulty in the term 'cultivator', in actual application it may raise some questions of importance. Obviously the term includes not only the person who actually toils on the land on his own account but also the owner of the land who gets it cultivated through his farm-servant or daily labourer.
In other words though the meaning of the word 'cultivator' in the section is covered by little authority, the only workable test in the interpretation of the word appears to be whether or not the person, who claims to have legally seized the cattle or caused them to be seized, by virtue of his position as a cultivator, can maintain that he has directly or indirectly suffered the loss caused by the damage. In fact, the very scheme of the Act seems to be based on the concept of damage caused by the trespassing cattle and consequent loss to cultivators.
(8) The occupier of any land is one of the persons entitled to seize cattle or cause them to be seized. The use of the expression 'cultivator or occupier' indicates that the occupier of any land is not necessarily a cultivator. Land other than cultivable land seems, therefore, to have been contemplated. This is further strengthened by the use of the expression 'crop and produce'. Grass standing on land is valuable produce of land for conserving which expenses may be incurred. A person who is in occupation of grazing land is its occupier within the meaning of this section, and he is entitled to seize cattle within the meaning of this section, and he is entitled to seize cattle trespassing on such land and doing damage thereon. (For an exhaustive citation of the relevant cases see the most welcome 2nd (1960) Edn. of the AIR Manual Vol. 1 referring to Bikram Mahton v. Emperor, : AIR1947Pat172 Budho v. Emperor, AIR 1943 Sind 152 : 44 Cri LJ 761; Emperor v. Saudagar AIR 1916 Lah 281 : 17 Cri LJ 63, Manik Chandra Roy v. Ismail Kalu, AIR 1919 Cal 93 : 20 Cri. LJ 398).
(9) Therefore we have first of all to determine the status of P.W. 4 and fortunately for us it was elicited in the cross-examination of P.W. 4 that he is the pannayal of Sethu Raman Chettiyar, and is also engaged in watching his fields. Therefore he may legitimately be described as the servant or watchman of the owner of this land.
(10) There are three decided cases which throw light on this matter, namely, that such a person can also be considered to be a person included in the set of persons authorised to seize cattle under the section.
(11) Seizure of cattle by watchman or servant under general instructions from the cultivator or occupier is legal. If the watchman or servant seizes cattle under such instructions, the cultivator or occupier causes them to be seized within the meaning of the section--in re Subbaraya Pillai, 16 Cri. LJ 772 : AIR 1916 Mad 786. Under S. 10 of the Act, a watchman watching crops on land on behalf of a cultivator or occupier is entitled to seize the cattle trespassing on the land under his charge when he is given general instructions to seize them while so trespassing--K. Dusadh v. Sarati Dusadh, AIR 1922 Pat 317.
A private forest in a Zamindari was treated as a reserve forest for certain purposes by the application of S. 26 and S. 32 of the Madras Forest Act. When the Forest Range Officer belonging to the Zamin and his watchers were driving cattle found grazing in the forest the accused rescued the cattle. It was held that the Zamindar was the occupier of the forest within S. 10 and the persons appointed by the Zamindar to be in charge of the forest were entitled to seize the cattle and, therefore, the accused were guilty under S. 24. Where cattle are found grazing on land in the occupation of its owner or occupier, it is not necessary that the owner or occupier, himself must physically seize and take the cattle to the pound, In re Sathirnalan, 1948 Mad WN 407 : AIR 1948 Mad 467.
(12) The net result of this analysis is that the accused has been rightly convicted under S. 24 of the Cattle Trespass Act. As for beating with chappals both Courts below found the allegation to be true and therefore the conviction under S. 355 I.P.C. is also correct.
(13) In regard to the sentence the learned advocate Mr. Santhanam presses that this is a case where considerable reduction should be made in regard to the punishment, if I come to the conclusion that the accused has been rightly convicted under S. 24 of the Cattle Trespass Act and S. 355 I.P.C. There is much force in what he says. Having regard to the circumstances I consider that punishment under S. 24 of the Cattle Trespass Act may be reduced to a fine of Rs. 50/-, and the punishment under S. 355 I.P.C. may be reduced to a fine of Rs. 150/-. Out of the fine amounts collected a sum of Rs. 100/- will be paid as compensation to P.W. 4. The balance of the fine amount if any collected will be refunded to the revision petitioner.
(14) This revision is disposed of accordingly.