Bindabai Chindhu Dange and another vs Kawadu Dharamaji Mandaokar and another

A.R. Shimpi, J.—An interesting question has been raised on behalf of the opponents that no revision lies against an order of the Magistrate awarding compensation u/s 168 of the Bombay Village Panchayats Act and an appeal lies against such a decision to the Court of Sessions Judge of the District.

The facts in brief are as under: The present applicants Bindabai and Kesheorao are mother and son respectively. They were non-applicants in the trial Court in Criminal Case No. 29 of 1972 instituted by the present non-applicant No. 1 Kawadu who was the applicant and who owns Khasra Nos. 30 and 31 at village Sukaoli. According to the case of the applicant before the learned Magistrate he has a right of way for going to his field from the dhura of Khasra No. 26/1 belonging to the non-applicants i.e. present applicants. On 5th of October 1972, servant of the complainant non-applicant No. 1 was taking bullock-cart by the above-mentioned road when he was obstructed by the applicants who threatened to beat him. The servant of the complainant got down from the cart. He came with the cart and bullocks in the field of the applicant Bindabai. Thereafter Bindabai and her son sent the bullocks to the Kalamna cattle-pound and impounded them. The complainant had to pay a charge of Rs. 6 for releasing bullocks. The complainant has also stated that he suffered a loss of Rs. 200 due to this unlawful act on the part of the applicants. It is not necessary to narrate the further facts or the reasons which led the learned Judicial Magistrate to order the applicants to pay to the non-applicant No. 1 Rs. 6 as the fees and Rs. 25 by way of compensation u/s 168 of the Bombay Village Panchayats Act, because I am inclined to accept the submissions raised on behalf of the opponent Kawadu that the appeal lies in such a case awarding compensation to the Court of Sessions Judge.

In order to appreciate the submissions, it is necessary to refer to section 168 of the Bombay Village Panchayats Act under which the complaint was made by the present opponent Kawadu in the Court of the Judicial Magistrate, First Class, Nagpur. It reads as under:

168(1) Any person whose cattle have been seized under this Act or having been so seized, have been detained in contravention of this Act, may, at any time within ten days from the date of the seizure, make a complaint to the Magistrate of the First Class.

(2) The complaint shall be made by the complainant in person, or by an agent personally acquainted with the circumstances. If the Magistrate on examining the complainant or his agent sees reason to believe the complaint to be well founded, he shall summon the person complained against, and make an enquiry into the case.

(3) If the seizure or detention be adjudged illegal, the Magistrate shall award to the complainant for the loss caused by the seizure or detention reasonable compensation not exceeding one hundred rupees to be paid by the person who made the seizure or detained the cattle, together with all fees paid and expenses incurred by the complainant in procuring the release of the cattle, and, if the cattle have not been released the Magistrate shall, besides awarding such compensation order their release, and direct that the fees and expenses leviable under this Act shall be paid by the person who made the seizure or detained the cattle

(4) The compensation, fees and expenses mentioned in this section may be recovered as if they were fines imposed by the Magistrate.

It was urged on behalf of the opponent Kawadu that this provision u/s 168, especially sub-section (1) and sub-section (2) of section 168 is analogous to the provision of sections 20 and 21 of the Cattle Trespass Act, 1871. Those two sections read as under:

Any person whose cattle have been seized under this Act, or, having been so seized, have been detained in contravention of this Act, may, at any time within ten days from the date of the seizure, make a complaint to the Magistrate of the District or any Magistrate authorised to receive and try charges without reference by the Magistrate of the District.

The complaint shall be made by the complainant in person, or by an agent personally acquainted with the circumstances. It may be either in writing or verbal. If it be verbal, the substance of it shall be taken down in writing by the Magistrate.

If the Magistrate, on examining the complainant or his agent, sees reason to believe the complaint to be well founded, he shall summon the person complained against, and make an inquiry into the case.

It will be clear after reading the provisions of section 168, sub-sections (1) and (2) of the Bombay Village Panchayats Act and sections 20 and 21 of the Cattle Trespass Act that they are analogous to each other. We are not on the point as to whether the provisions of Cattle Trespass Act are applicable to the facts of the present case or the provisions of the Bombay Village Panchayats Act, 1958 are applicable. It is also not disputed that the provisions of section 168 of the Bombay Village Panchayats Act, which has made specific provision regarding a complaint of illegal seizure or detention are applicable to the facts of the present case. These provisions were invoked on behalf of the opponent No. 1 from the Cattle Trespass Act to show that the word "compensation" mentioned is the same as mentioned in section 168 of the said Act and the word "compensation" has not the restrictive meaning of a "fine" under the Code of Criminal Procedure.

It was contended on behalf of the opponents relying on the authority of the Division Bench of this Court reported in Barthol Duming Rodriks v. Papa Dada A I R 1922 Bom. 191, that an order awarding compensation and repayment of fines u/s 22 of the Cattle Trespass Act is appealable u/s 403 of the Code of Criminal Procedure and the compensation so awarded not being a fine, the restrictive provisions of section 413 of the Code of Criminal Procedure are not applicable. It is not necessary to refer to the provisions of the new Code of Criminal Procedure because the complaint has been instituted before the coming into force of the new Code of Criminal Procedure and the parties are in agreement that the provisions of the old Criminal Procedure Code are applicable to the facts of the present case. Section 408 of the Code of Criminal Procedure lays down that any person convicted on a trial held by an Assistant Judge or a Judicial Magistrate or any person sentenced u/s 349 or in respect of whom an order has been made or a sentence has been passed u/s 380 by a Judicial Magistrate may appeal to the Court of Session.

Section 413 of the Code of Criminal Procedure reads:

Notwithstanding anything hereinbefore contained there shall be no appeal by a convicted person in cases in which a High Court or the Court of Sessions for Greater Bombay passes a sentence of imprisonment not exceeding six months only or of fine not exceeding two hundred rupees only or in which any other Court of Session passes a sentence of imprisonment not exceeding one month only, or in which a Court of Session other than that for Greater Bombay or a Magistrate of the first class passes a sentence of fine not exceeding fifty rupees only.

The plain meaning of section 413 would be that when the Magistrate of the First Class parses a sentence of line not exceeding rupees fifty, there shall be no appeal. If the amount of compensation is treated as a fine, then the compensation awarded in the instant case being below Rs. 50 no appeal lies. But what is canvassed on behalf of the opponents is that the amount of compensation is not a line and, therefore, appeal would lie u/s 408 of the Code of Criminal Procedure to the Court of Sessions. The Division Bench authority referred to above supports the contention urged on behalf of the opponents and I agree with the same. Therefore, I hold that the present revision application filed by the applicants is incompetent and the papers of this present revision application will have to be returned to the learned Advocate for the applicants to present them as a memorandum of appeal in the Court of Sessions Judge, Nagpur.

Shri Voditel, the learned advocate has drawn my attention to a decision of the Madhya Pradesh High Court reported in Shankerlal Vs. Ramshanker and Another, . That decision lays down that an order awarding a compensation u/s 22 of the Cattle Trespass Act is not an order of conviction, nor is an order refusing to award compensation, one of acquittal. It also lays down that that being so, the provisions in the Code of Criminal Procedure with regard to appeals against convictions and acquittals do not apply to an order u/s 22. The head-note of the Madhya Pradesh High Court decision further lays down :

It is true that u/s 4 (1) (o), Criminal Procedure Code ''offence'' includes any act in respect of which a complaint may be made u/s 20. But the effect of this inclusion is only to confer jurisdiction on a Magistrate to hear such complaints and to hold an enquiry into the wrongful seizure and detention of the cattle but the enquiry does not result in acquittal or conviction.

This observation is made by the Madhya Pradesh High Court following the decision of the Nagpur High Court reported in Matru v. Dhunilal 1950 N L J 36 = A I R 1951 Nag. 287.

The Nagpur High Court was considering the question of different nature under sections 22 and 24 and in that light certain observations were made. However, it appears that this decision of the Nagpur High Court was not accepted by the Madras High Court in Muruvan v. Ramabadra Naidu A I R 1957 Mad. 742. In this case the Madras High Court has observed as follows:

The word "offence" as defined by section 4 of the Code includes an act in respect of which a complaint may be made u/s 20 of the Cattle Trespass Act. A person against whom an order u/s 22 of that Act is made is a person ''''convicted on a trial" within the meaning of section 407 of the Criminal Procedure Code, and an appeal against the conviction therefore lies, u/s 407.

With respect, I follow this observation from the Madras High Court. Moreover, a Division Bench of this High Court has taken a view that an appeal lies and has further held that the word "compensation" not being a "fine", an appeal lies treating the order of compensation as an order of conviction.

In that view, I hold that the remedy for the applicants is to file an appeal. I, therefore, hold that the revision application is not maintainable. The papers are returned to the Advocate of the applicants to file them as an appeal in the Court of Sessions Judge, Nagpur.