1. The petitioner was convicted under Section 21(d) of the Forest Act V of 1882 and sentenced to pay a fine of Rs. 200. His appeal to the Sessions Judge of Guntur was rejected on the ground that no appeal lay against the conviction in a summary trial, when the fine did not exceed Rs. 200. The petitioner has preferred this revision petition.
2. The contention on behalf of the petitioner is that the Deputy Magistrate has not correctly applied the law to the facts of the case and that the mere finding of the petitioner's flock of goats grazing within the forest reserve would not by itself make the owner of the goats punishable under Section 21(d). Under that section 'any person who pastures cattle or permits cattle to trespass' is punishable with imprisonment for 6 months or with fine which may extend to Rs. 500 or with both. The statement, of the law in paragraph 4 of the Deputy Magistrate's judgment 'I hold that as the rightful owner of the flock, the accused is responsible for its action and that his paid servants or agents cannot be solely taken to task. The word 'permit' used in the section has to be interpreted in its broadest sense and includes all the acts which though done without his explicit orders, are such as to be guarded against' is not correct. The expression 'permits his cattle to trespass' means something more than the cattle trespassing within the forest reserve. In order to make the owner liable, there must be something more than the mere finding of his cattle within the forest reserve If the owner, knowing that the cattle would trespass into the forest reserve, neglects to take proper care of his cattle, or knowing that his servants would take the cattle to the reserved forest, does not forbid them from doing it, or knowing that his servants might take his cattle to the reserved forest connives at it, then he might be said to permit the cattle to trespass; but where without his knowledge, or against his orders, his servants allow cattle to trespass into the forest reserve, he cannot be held to be guilty. In this case it is a question of fact whether from the circumstances, the Magistrate as a judge of fact, can come to the conclusion that the accused by his act or by his negligence permitted or allowed his cattle to trespass into the forest reserve.
3. If the law is as stated by the Magistrate, then the owner of cattle would be liable even if his enemy without his knowledge, or his servant, in spite of his orders, drives his cattle into the forest reserve. The law has been correctly stated by Muthuswami Iyer, J., and Brandt, J.J., in In re Uthanlevara Vathiar 1 Weir 762 as follows:
A person certainly cannot be said to permit cattle to trespass into a reserve forest, unless he knows that such trespass is likely to be committed and neglects with such knowledge to take measures to prevent it. The essence of the offence consists either in a misfeasance, as in the case of one wilfully pasturing cattle, or in a malfeasance as in his neglecting to take proper measures to prevent the cattle trespassing in circum stances from which it may reasonably be inferred that such trespass might have been foreseen or known as the probable consequences of his negligence
4. In Queen-Empress v. Krishndyyan 5 Ind. Dec. 458 all that the prosecution proved was that the defendant's cattle were found in a reserve. It was held that the accused was not liable. The decision, therefore, is correct, but, with, great respect, we are unable to agree with the observation of the learned Judge that 'the owner cannot be held liable unless some overt act of his be proved'. It is riot necessary that there should be any overt act. Omission to take reasonable precaution against trespass knowing or having reason to believe that cattle would trespass into the forest reserve, would amount to permitting cattle to trespass within the meaning of Section 21(d).
5. The learned Public Prosecutor relies upon Rex v. Almon 5 Bur. 2686, and contends that it is for the accused to show that there was no negligence on his part or that his servants acted contrary to his orders and that in the absence of such evidence the master is liable criminally for the acts of his servants and in that case the defendant was convicted for publishing a libel (Junius's Letters), in one of the magazines called. 'The London Museum' which was bought at his shop and even professed to be printed for him. Lord Mansfield stated the law thus:
That proof of a public exposing to sale and selling, at his shop by his servant, was prima facie sufficient; and must stand till contradicted or explained, or exculpated by some other evidence; and if not contradicted, explained, or exculpated, would be in point of evidence sufficient or tantamount to conclusive. Mr. Mackworth's doubt seemed to be whether the evidence was sufficient to convict the defendant, in case he believed it to be true. And in this sense I answered it. Prima facie, it is good; and remains so, till answered. If it is believed and remains unanswered, it becomes conclusive. If it be sufficient in point of law and the juryman believes it, he is bound in conscience to give his verdict according to it.
6. This case has no application to the present. There the libellous publication was sold in the defendant's shop and purported to have been printed for him. It was open to him to prove that, the sale was, without his knowledge and that the printing was done either contrary to his orders or without his knowledge. The Libel Act of 1843, VI and VII Vic. Ch. 06, Section 7, has made it clear that it should be competent to such a defendant to prove that such a publication was made without his authority, consent or knowledge, and that the said publication did not arise from want of due care or caution on his part. In the case of cattle trespassing within the forest reserve, the owner may be miles away from the reserve, and it cannot be said that the onus is upon him to prove that it was done without his authority or knowledge. In every case it is for the Magistrate who tries the case to find on the evidence whether the accused by some act or omission or by negligence allowed or permitted the trespass. If from the evidence on the side of the prosecution, the Court could presume that the defendant by his omission to take such reasonable care as the owner of cattle should take, allowed his cattle to trespass or knowing that the cattle would trespass failed to take such care as every prudent owner of cattle is expected to take, a prima facie case would be made out. Then, the onus of proof that he took all reasonable care to prevent cattle trespassing, or that the trespass was in spite of his care or against his orders, would be upon him. If he fails to make out that, he should be held to be guilty. But the prosecution cannot succeed, by merely showing that a man's cattle was found within the forest reserve.
7. In this case, inasmuch as the Magistrate erred with regard to the statement of the law and convicted the accused without recording a finding that he either wilfully or negligently permitted the trespass or failed to take such care as would be necessary to prevent cattle trespassing into the forest reserve, the conviction cannot stand. We, therefore, set aside the conviction and direct that the accused be re-tried and the case disposed of according to law. The fine, if paid, will be refunded to the petitioner.