1. This revision petition raises an interesting point, namely, whether ah appeal lies in regard to the award of compensation for illegal seizure or detention under Section 22 of the Cattle Trespass Act.
2. It is now well settled that since the word 'offence' as defined by Section 4 of the Code of Criminal Procedure Code includes an act in respect of which a complaint may be made under Section 20 of the Cattle Trespass Act a person against whom an order under Section 22 is made is a person 'convicted on a trial' within the meaning of this section and an appeal against the conviction lies, therefore, under Section. 407; Cr. P. C.
3. The case-law on the subject may now be briefly summarised. In the matter of ponnuswami, ILR 29 Mad 517 (A), a Bench of this Court consisting of Benson and Moore, JJ., after the amendment: of the Cattle Trespass Act, held that by Section 4(o) of the Code of Criminal Procedure, the word 'offence' includes an act in respect of which a complaint may be made under Section 20 of the Cattle Trespass Act; and a person against whom an order under Section 22 of the Cattle Trespass Act is made is a 'Person convicted on a trial' and is entitled to appeal under Section 407 of the Code of Criminal Procedure.
4. In Barthol Duming Rodriks v. Papa Dada, 22 Crl LJ 624; (AIR 1922 Bom 191) (B), it was held that a person who is directed to pay compensation under Section 22 of the Cattle Trespass Act can be said to be convicted of an offence, but the compensation awarded against him, though recoverable as a fine, is not a 'fine' within the meaning of the Penal Code, and therefore, ah appeal against his conviction lies under Section 408 of the Criminal Procedure Code and does not fall within the restrictive provisions of Section 413 of that Code. This was a Bench decision of the Bombay High Court consisting of Sir Norman Macleod, C.J., and Shah, J.
5. In King Emperor v. M. Hari Ma, 6 Cri LJ 121: 4 Low Bur Rul 10 (C), it was held that where on a complaint being made under Section 20 of the Cattle Trespass Act to a second class Magistrate, the Magistrate ordered the payment of a certain sum as compensation and refund of the amount of court-fees paid by the complainant, that Section 4 (o) of the Criminal Procedure Code defining an offence as including an act in respect of which a complaint may be made under Section 20 of the Cattle Trespass Act, and Clause (v) of the same section of the Code defining a summons case as a case relating to an offence and not being a warrant case, the case under consideration was a summons case; and Section 241 of the Code prescribing that the procedure set out in Chapter XX shall be observed by Magistrates in the Trial of summons cases, and sections 243, 245 and 246 providing for convicting the accused, the trying Magistrate's order in this case must be regarded as a conviction within the meaning of the Code of Criminal Procedure Code and that Section 407 enacting that any person convicted by a Magistrate of the Second class may appeal to the District Magistrate, the reasonable conclusion is that an appeal lies to the District Magistrate.
6. On this construction it is now pointed out under Section 22 in the commentaries on the Cattle Trespass Act (Sastri Section 22, Khagendranath Mitra, p. 55) that the rulings in Queen Empress v. Raja Lakhma, ILR 10 Bom 230 (D), In re, Gunesh Prashad, 3 NWP 200 (E); Dhiku v. Denouath Deb, ILR 15 Cal 712 (F), Queen Empress v. Lakshmi Nayakan, ILR 19 Mad 238 (G), Madras High Court Proceedings 27th Nov. 1879, No. 2113 1 Weir 711 (11), in so far as they decide that no appeal will lie against a sentence or order under Section 22 is no longer good law, as a person so sentenced would come within Section 407, Crl. P. C.
7. In the well-known and exhaustive AIR commentaries on the Code of Criminal Procedure Vol. II, 4th Edition at page 2211, it is stated:
'It follows that a decision in which an offence is not involved is not a conviction on a trial. Before the change introduced in 1898 in Section 4 (1) (o), an illegal seizure of cattle did not amount to an 'offence' and an order under the Cattle-trespass Act, .1871, for compensation for illegal seizure was held not to amount to a conviction on trial and not appealable.'
(In addition to the above rulings in foot-note 3 the following additional rulings are cited: Raghu Singh V. Abdul Wahab, ILR 23 Cal 442 (I): In re, Khadar Khan, ILR 11 Mad 359 (J), Queen Empress v. Sada-shiv. Rat UN Cr-C 520 (K); Empress v. Bakhsh, 22 Pun Re ,1886 Cr (L), 3 NWP 200 (E); See Shama v. Lechhu Sheikh, ILK 23 Cal 300 (M), Bhagirathi v. Gangadhar, ILR 27 Cal 992 (N).)
'Such an order now amounts to a 'conviction on a trial' and is appealable.''
7a. See also for similar views Sir Jolin Wood-coffe's Criminal Procedure in India (Thacker Spink and Co.) (1926) citing ILR 29 Mad 517 (A) and B. B. Mitra's Code of Criminal Procedure, Twelfth Edition, (1954) Vol. II at p. 1576 citing ILR 46 Bom 58: AIR 1922 Bom 19 (B); S. Ranganadhiyar's Code of Criminal Procedure, Seventh Edition, (1954) Part II at p. 1513; 'The word offence in Section 4 (1) (o) includes an act of which a complaint may be made under Section 20 of the Cattle Trespass Act and a person against whom an order is made under Section 22 of the said Act is made a person convicted on a trial' (See ILR 46 Bom 58: AIR 1922 Bom 19 (B); ILR 27 Cal 992 (N); Budhan Mahto v. Issur Singh, ILR 34 Cal 926 (O); Emperor v. Vishvanath Vishnu, ILR 44 Bom 42: AIR 1920 Bom 85 (1)) (P) in this connection.
When such a trial is by a Second or Third Class Magistrate an appeal lay against that conviction; ILR 29 Mad 517 (A): and Dr. S. Swaminathan's Commentaries on the Code of Criminal Procedure (Published by Addison and Co., Mount Road, Madras) (1910) at p. 670 'A complaint under Section 20 of the Cattle Trespass Act is now included in the term offence: See S. A. Clause (o), Crl. P.C.; therefore a person against whom an order is made under Section 22 of the Act is a person convicted on a trial; and an appeal lies from an order of a Second Class Magistrate awarding compensation for illegal seizure of cattle; ILR 29 Mad 517 (A). The rulings in ILR 10 Bom 230 !D); ILR 11 Mad 359 (J); ILR 15 Cal 712 (F); and ILR 19 Mad 238 (G) are not superseded.' See 1 Weir 712 (j). G. P, Boys' (later Justice) The Code of Criminal Procedure (Butterworth and Co. (India) Ltd., Vol. II, 1914) at p. 57.
'The second paragraph of the definition of 'offence.' was new in the Code of 1898 and makes the following cases to be of authority in so far as it was held in them that the illegal seizure of cattle under colour of Act I of 1871 was not an offence: Ketabdi Mundul, In the matter of 2 Cal LR 507 (Q); Pitchi v. Ankappa, ILR 9 Mad 102 (R); Kottallanada v. Muthaya, ILR 9 Mad 374 (S); Kala v. Gudadhur, ILR 13 Gal 304 (T); Nedaram v. Joonab, ILR 23 Cal 248 (U); ILR 23 Cal 442 (I); Meghai v. Sheobhik, ILR 18 All 353 (V).
See now ILR 34 Cal 926 (O) and ILR 29 Mad 517 (A).
Now that the illegal seizure of cattle under colour of Act I of 1871 has been declared to be an offence, it would seem that the 'compensation' allowed by Section 22 of that Act must be regarded as a 'fine' or at any rate as a 'punishment'.'
The same observations are also made in Ratan Lal's Criminal Procedure Code, 2nd Edition, at p. 343 citing and relying on ILR 29 Mad 517 (A) and ILR 34 Cal 926 (O). School's Criminal Procedure Code. Twelfth Edition, p. 25:
'It follows from the definition that a person against whom an order is made under Section 22 of this Act is a 'Person convicted on a trial' and an appeal lies against such conviction under Section 407: ILR 29 Mad 517 (A).'
In Appendix at p. 1, it is stated
'The rulings in ILR 10 Bom 280 (D); ILR 11 Mad 359 (J); 1 Weir 711 (H); Rat Un Cr C, 520 (K); ILR 15 Cal 712 (F); ILR 23 Cal 300 (M); ILR 9 Mad 374 (S); and ILR 19 Mad 238 (G) must be regarded as no longer law.'
ILR 46 Bom 58: AIR 1922 Bom 191 (B) is relied upon for holding that the restrictive provisions of Section 413, Crl. P.C., do not apply. Similar language issued in Dr. Nand Lal's Cr. P. C., Vol. 1, p. 52 (1936). That is why in the recent AIR Publication 'The 50 Years' Criminal Digest, 1904-1953' which is a veritable Encyclopaedia of Indian Criminal Law, the cases which are held by the commentators to be no longer good law have not been digested and only Mavtu Udesingh v. Dhunnilal Sitaram, AIR 1951 Nag 287 (W); Ghulba Lahanu v. Emperor have been digested under 'Proceedings under Section 22, Nature of at p. 320 of Vol. 1.
The position is summed up in Ramanatha Iyer's Commentaries on the Crl. P. C., 2nd Edn., Vol. 1 (1956), an M. L. J. publication at p. 44 as follows: 'Complaint under Section 20, Cattle Trespass Act -- The last portion of Section 4, Clause (o), is probably due to certain rulings, viz., ILR 9 Mad 102 (ft); ILR 9 Mad 374 (S); ILR 18 All 353 (V) which laid down that an action in respect of which a complaint could he laid under Section 20 was not an offence. But now a complaint of wrongful seizure of cattle under Section 20 is an offence: ILR 29 Mad 517 (A); ILR 34 Cal 926 (O); ILR 44 Bom 42: AIR 1920 Bom 85 (1)) (P).'
8. As against these decisions we have a Bench decision of the Nagpur High Court in (X) decided by Hidayatullah, J., and a decision by a single Judge of this Court in Venkatesa Reddiar v. Veerasami Mudali, Crl. R. C. 652 of 1955 (Mad) (Y); where it was pointed out that a person held liable under Section 22 of the Act is not an accused nor is he convicted of the offence, and that under Section 22 only compensation together with fines and expenses can be ordered against the person who is adjudged liable.
I am indebted to Shri N.T. Raghunathan's very useful All India Digest, 1951-1955, for examining a later decision of the Nagpur High Court, reported in AIR 1951 Nag 287 (W), where Sen, J., lays down that a person against whom a complaint is made under Section 20 is not an accused; the result of enquiry is not acquittal or conviction. Hence setting aside an order for compensation does not amount to an acquittal. Rut in this recent decision of Somasundaram, J., the Bench decision of Benson and Moore, JJ., was not brought to his notice and I am hound, sitting singly, by the Bench decision of this Court apart from the fact that this construction appears to be the better opinion as will be evident from the extracts of the standard text book writers on the subject reproduced above.
9. Therefore, 1 hold that an appeal lies.
10. But having come to the conclusion that an appeal lies on the facts there are, however, no merits to justify interference and the compensation of Rs. 100 awarded and concerning which alone a reduction was pressed for, is certainly not excessive.
11. This Revision is dismissed.