(1.) This is an application under Section 439, Criminal P.C. challenging the legality of an order of conviction passed by, Sri B.C. Patnaik, Magistrate, First Class with appellate powers, Cuttack. The petitioners were accused of having allowed their cattle to stray into the field of the complainant (P.W. 1) and damage his chilly crop. The complaint filed, by P.W. 1 was taken cognizance of by the Subdivisional Magistrate, who transferred it for trial to the file of Sri P. Tripathy, Magistrate, II Class, Cuttack. The Magistrate found that damage had been caused to the crop of the complainant (P.W. 1) by the cattle of the petitioners. He also found that the cattle were being led to the pound by P.W. 1 when the petitioners forcibly rescued them. The trying Magistrate was of opinion that these two facts were not sufficient to constitute the ingredients of an offence under Section 24, Cattle Trespass Act. He however convicted the petitioners under Section 426, I.P.C. and sentenced them to pay a fine of Rs. 50/- each. Against this order of conviction the petitioners preferred an appeal before Sri B. C. Patnaik, Magistrate, First Class with appellate powers, Cuttack, and he held that Section 426, I.P.C. was not applicable to the facts proved in the case and that the lower court had taken an erroneous view of the law. The appellate Magistrate therefore altered the finding of conviction under Section 426, I.P.C. into one under Section 24, Cattle Trespass Act and reduced the sentence. It is against this appellate judgment that the present petition has been filed, under Section 439, Criminal P. C.
(2.) Mr. B. Mohapatra, learned counsel for the petitioners, has addressed a lengthy argument on the powers of an appellate court under Section 423, Criminal P. C. and contends that the trial Court having acquitted the petitioners of the offence of cattle trespass, the lower appellate court had no power to alter that finding of acquittal into one of conviction and that it has thus exercised a power beyond its jurisdiction. Strong reliance was placed on the minority view propounded in -' Zamir Qasim v. Emperor', AIR 1944 All 137 (FB) (A), and the decision of a single Judge in --'Panu Nayak v. Chintai Mallik', AIR 1948 Pat 435 (B). Even at the time of admitting this revision, Narasimham J. appears to have doubted the correctness of the decision in -- 'AIR 1948 Pat 435 (B)' and directed that this matter should be placed before a Division Bench.
(3.) Sub-section (1) of Section 423, Criminal P. C-says: