LOKENATH SAHU Vs. RAHAS BEURA

JUDGEMENT

(1.) THIS is a revision against the judgment of the Sub-Divisional Magistrate, bhubaneswar convicting the petitioners under Section 323,1. P. C. and sentencing them to pay a fine of Rs. 20/- each; in default to undergo simple imprisonment for seven days each. The petitioners were placed on trial for offences under Section 323, I. P. C. and Section 24 of the Cattle Trespass Act on the allegation that on i0th August, 1961 in the evening they forcibly rescued their cattle, while they were being taken to the cattle. , pound by the complainant. At the time, of rescue, they were alleged to have caused injuries to the complainant. It was alleged by the complainant that the cattle damaged his paddy crop in a field known as haribandha Chak in village Kantabad. The complainant saw the damage and also noticed that petitioners Rama Sethi and Govinda Sahu were standing on a ridge close-by and deliberately allowed the cattle to graze the paddy crops. When they did not listen to his protest he attempted to seize the cattle and take them to the pound. It was alleged that Rama went to the village, collected the other petitioners and then they all came there, severely assaulted the complainant and rescued the cattle. The trial court, however, did not accept the evidence regarding damage to the crops by the cattle. His finding on this point is as follows:

(2.) MR. Kanungo for the petitioners urged that once the trial court came to a finding that the seizure of the cattle was not justified, the petitioners would be entitled, in exercise of their right of private defence of property, to rescue the animals even by use of force, if necessary. Here the force used was not excessive and that, consequently, the petitioners were entitled to an acquittal.

(3.) THERE is doubtless some conflict on the question as to whether if the seizure of cattle was unlawful, the owner of the cattle would be justified in exercise of the right of private defence of property in rescuing them. One view is that the owner is entitled only to compensation in civil court or to apply to the Magistrate concerned under Section 20 of the Cattle Trespass Act and that he had no right to rescue the animals by the use of force: The leading decision in support of this view in the AIR 1943 Oudh 280, Dayal v. Emperor where following Aradhun Mondulv. Myan Khan, 24 Suth WR Cr 7 and Empress v. Ramjiawan, 1881 All WN 158 it was held that by illegally impounding cattle no-offence either of mischief or of theft was committed and that, consequently, there was no right of private defence. But a contrary view was taken in AIR 1946 Nag 221, Madra Damn v. Emperor and AIR 1959 Raj 124, birdha v. State where it, was held that illegal seizure of cattle with a view to impound them is theft because though the person who has seized the animals had no intention to cause wrongful gain to himself, nevertheless his intention was to cause wrongful loss to the owner of the animals. The learned Judge in the Nagpur case dissented from the view taken in 24 Suth W. R. Cr. 7. This view has been followed in a later Lahore decision reported in AIR 1947 Lah 380, Jiwana v. Emperor.