JAGANNATH SINGH Vs. EMPEROR

JUDGEMENT

(1.) 1. This applicant was, Under Section 22, Cattle Trespass Act, ordered to pay Rs. 30 compensation for an illegal seizure of cattle and the order was confirmed in appeal by a first class, Magistrate with appellate powers. The first ground taken was that the lower Court did not comply with Section 242, Criminal P C. On examining the record I find that all necessary compliance was made. The order sheet dated loth February 1934 records: "Particulars of the offence explained to the accused. They plead not guilty." Section 242 does not say. that the Magistrate shall make a record; of what he stated to the accused in explaining the offense. It is sufficient if the proceedings show that he had orally explained to the accused what the offence was, and asked him to show cause. In Mt. Lahani v. Khushal 1932 Nag 127 there was no note on the record that this was done, but the learned Judicial Commissioner pointed out that Section 242 does not expressly state that such a note should be made and added that if there was an irregularity it would be cured by Sections 535 and 537, Criminal P.C. In the present case there was not even such an irregularity to be cured.

(2.) THE fourth ground of the revision application however deserves serious attention. It is that the cattle were rightly seized as they had trespassed into the applicant's field. Now the findings of the lower Courts are that the cattle had been grazing in the applicant's crops and they were actually seized when they had passed on to the padia land adjoining. It is held therefore that they were not liable to be seized because at the time of their sei-sure they were neither trespassing on the land of the appellant's master nor were they doing any damage to the arhar crops. Section 10, Cattle Trespass Act, does use the word "trespassing" but we have to see whether the word should be so restricted as to put an end to the right of seizure as soon as cattle actually step outside the boundary of a field. Suppose I see a cow grazing in my field and I move towards it in order to impound it, am I acting illegally because it runs away and I do not catch it until it has gone just a few yards beyond my field? I think that would be an unnatural straining of the meaning of the expression. No doubt the right of cap-ture of the cattle would not extend to following them to their sheds and seizing them there; but if the owner of a field attempts to seize them while actually trespassing, I think he is within his rights in capturing them before they have definitely made their escape from the spot, even though they were not actually inside the field when captured.