Guiram Ghose vs Sudhir Kumar Mandal

Chakrabarty, J.—This revisional application raises an important question of law, viz., whether an appeal is competent from an order passed by a Magistrate awarding compensation u/s 22 of the Cattle Trespass Act, 1871. The case has been referred to the Division Bench by K.C. Sen, Jas there are conflicting decisions of several High Courts in India on the point but no decision either of a Division Bench or of a single Judge of this Court.

The facts in connection with which the question arises are briefly these: The opposite parties seized some 52 heads of cattle belonging to the Petitioners and put them to a pound on the ground that the cattle had strayed into their, that is to say, the opposite parties'' lands and damaged the standing crops. The Petitioners got the cattle released on payment of Rs. 128. They then made a complaint to the Sub-divisional Magistrate, u/s 20 of the Cattle Trespass Act, that their cattle had been wrongfully seized and detained by the opposite parties and prayed for an order for compensation. They also alleged that at the time of seizing the cattle the opposite parties had taken recourse to criminal intimidation. The learned Magistrate framed charges against the opposite parties u/s 22 of the Cattle Trespass Act and Section 506 of the Indian Penal Code. Considering the evidence before him he found that there was no lawful ground for the seizure and detention of the cattle, but he was not satisfied that the charge u/s 506 of the Indian Penal Code was clearly proved. So he acquitted the opposite parties of that charge but directed them u/s 22 of the Cattle Trespass Act to pay to the Petitioners Rs. 400 as compensation and Rs. 150 as costs.

The opposite parties appealed to the Court of Sessions against this order. The Petitioners, who were the Respondents in the appeal, took the objection that an order for payment of costs u/s 22 of the Cattle Trespass Act was not appealable. The learned Sessions Judge overruled the objection and on merits he found that, as the evidence stood, there was no reason to disbelieve the defence case that the crops of the opposite parties were damaged. According to him the seizure and detention of the cattle were justified. He therefore, allowed the appeal and set aside the Magistrate''s order for payment of compensation and costs. It is against the order of the Sessions Judge that the present rule has been issued.

Mr. Jnanendra Mohan De, appearing for the Petitioners, contended that a person against whom an order for payment of compensation has been made u/s 22 of the Cattle Trespass Act, is not a person convicted on a trial and that hence, such an order is not covered by s, 408 of the Code of Criminal Procedure and is not appealable. It was "submitted that in the present case the Sessions Judge" had no jurisdiction to interfere with the Magistrate''s order and that hence the appellate order passed by him should be set aside restoring that of the Magistrate.

Mr. De has cited several rulings in support of his proposition that no appeal lies from an order of a Magistrate awarding compensation u/s 22 of the Cattle Trespass Act. Some of them are of a period prior to 1898 when the present Code of Criminal Procedure came into force. The cases of this period are Queen Empress v. Lakshma ILR 10 Bom. 230. In re Khador Khan ILR 11 Mad. 359, Dhiku v. Deno Nath ILR 15 Cal. 712. Empress v. Lakshmi Nayakam ILR 19 Mad. 238. In all these cases it was held that no appeal lay from an order awarding compensation u/s 22 of the Cattle Trespass Act. But the definition of the word ''offence'' was amended by the Act of 1898 by adding the following sentence to Section 4(1)(O):

it also includes any act in respect of which a complaint may be made u/s 20 of the Cattle Trespass Act, 1871.

Under the earlier Codes a wrongful seizure and detention of cattle for which complaint may be made u/s 20 of the Cattle Trespass Act did not amount to an offence and consequently an order for payment of compensation made against the person-complained against was not an order of conviction. u/s 408 of the Code of Criminal Procedure it is only ''a person convicted OH a trial'' who has been given the, right of appeal, It is, therefore, quite obvious that prior to the change in the definition of the term ''offence'', by the Code of 1898 no appeal against an order of compensation u/s 22 of the Cattle Trespass, Act was permissible under the law. The decisions referred to earlier-holding the view that no appeal lay are, therefore, quite understandable.

Mr. De, however, contended that the position did not change materially, so far as the question of appeal is concerned even after the change in the definition of the word ''offence'' by the present Code. In support of this contention of his, he has referred us'' certain decisions which were given subsequent to the change in the definition of the word ''offence'' by the Code of 1898. The first case under the present Code referred to by him is a decision of a single Judge of the Nagpur High Court in AIR 1949 117 (Nagpur) . In this case there is an observation that a person who was held liable u/s 22 of the Cattle Trespass Act was not an ''accused'' nor was he ''convicted'' of the offence. What happened in this case was that a Magistrate while dealing with a complaint u/s 20 of the Act passed a sentence of fine and ordered that the accused was to suffer rigorous imprisonment in default of payment of the fine and that out of the fine, if realised, a certain amount was to be paid as compensation to the complaint u/s 545(1)(b) of the Code of Criminal Procedure. It was held that u/s 22 of the Cattle Trespass Act the person guilty of illegal seizure and detention of cattle could be ordered to pay compensation and not fine and that the sentence of rigorous imprisonment in default of payment of fine was not legal. It was also pointed out that the power to award compensation was given by Section 22 of the Cattle Trespass Act itself and that it was not necessary to invoke the provisions of Section 545(1)(b) of the Code of Criminal Procedure for the purpose. The question whether an order u/s 22 of the Cattle Trespass Act was appealable or nod did not come up for consideration in this case. It was in connection with the manifest illegality in the order of the Magistrate (the passing of a sentence of imprisonment in default of payment of fine) that the observation that the person complained against was not an ''accused'' and nor was he ''convicted'' was made.

The next case cited by Mr. De is a decision of the Madras High Court, Venkatesh Reddiar v. Veerasami Mudali ILR (1957) Mad. 422. This is a judgment of Somasundaram, J. sitting singly. It was held in this case that no appeal lay from an order under s 22 of the Cattle Trespass Act. The fact that according to the present definition of ''offence'' as given in Section 4(1)(O) of the Code of Criminal Procedure the act of seizure or detention of cattle in contravention of the provisions of the Cattle Trespass Act was an offence was taken note of, but nevertheless it was held that the person against whom an order of compensation was made was not a convicted person as a mere order to pay compensation the failure to pay which could not be punished by imprisonment was not a sentence at all. The Nagpur case referred to above was considered in this case and approved.

Yet another case cited by Mr. De was a Division Bench decision of Madhya Pradesh High Court, Shankerlal Vs. Ramshanker and Another, . It was held in this case as follows:

It is true that u/s 4(1)(O), Code of Criminal Procedure, ''offence'' includes any act in respect of which a complaint may be made u/s 20 of the Cattle Trespass Art, 1871. But as pointed out in the decision relied on by the learned Sessions Judge himself, 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. The order that is passed u/s 22 is only about the payment or non-payment of compensation and of the fines paid and expenses incurred by the complainant under the Cattle Trespass Act in procuring the release of the cattle. It is not a fine. No imprisonment can be ordered in default of payment of the compensation money u/s 22. That the compensation amount awarded u/s 22 is not a fine is very clear from Section 23 which says that the compensation mentioned in Section 22 may be recovered as if it was a fine imposed by a Magistrate. If the compensation amount had been a fine under the Code of Criminal Procedure, then there would have been no necessity of the ''deeming provision'' contained in Section 23. An order awarding compensation u/s 22 is not an order of conviction. Nor is an order refusing to award compensation, one of acquittal. That being so the provisions in the Code with regard to appeals against convictions and acquittals do not apply to an order u/s 22.

In this case also the Nagpur decision in Ghulba v. Emperor (Supra) was cited with approval.

Sri Prasun Chandra Ghosh, appearing for the opposite parties, argued that all the earlier decisions, that is to say those which were given prior to the change in the definition of ''offence'', in so far as they lay down that an order u/s 22 of the Cattle Trespass Act is not appealable, are no longer good law and that the later decisions of Nagpur, Madras and Madhya Pradesh High Courts, relied upon by Mr. De, did not reflect the correct position of law.

Mr. Ghosh, pointed out that the decision of Somasundaram, J., sitting singly in Venkatesa Reddiar v. Veerasami Mudali (Supra), cited on behalf of the Petitioners, expresses a view contrary to that held in an earlier Division Bench case. Evidently the attention of the learned Judge was not drawn to the existence of the earlier Division Bench ruling of the same High Court on the same question. This Division Bench case, In the matter of Ponnusami ILR (1906) 29 Mad. 517, which is directly on the point, says:

By Section 4(O) of the Code of Criminal Procedure as now revised the word ''offence'' includes an act in respect of which a complaint may be made u/s 20 of the Cattle Trespass Act. It follows that a person against whom an order u/s 22 of the Cattle Trespass Act is made is a ''person convicted on a trial''.

Muruvan and Others Vs. Ramabadra Naidu, which is yet another decision of the Madras High Court on the same question by a Judge sitting singly follows the Division Bench ruling mentioned above. This case decided by Ramaswami, J. gives an exhaustive review of case laws on the point and quotes extensively from the commentaries on the Code of Criminal Procedure by various well-known authors in order to show that the decisions earlier to 1898 were no longer good law.

Of the various cases noticed by Ramaswami, J. in his judgment two require mention here. The first is a Bench decision of this Court, Budhan Mahato v. Issur Sing ILR 34 Cal. 926 in which it was held as follows:

Sections 20 to 23 of Act 1 of 1871 (The Cattle Trespass Act) conferred, no doubt, a special jurisdiction on certain Magistrates, but Section 4, Clause (O) of the Code of Criminal Procedure (Act V of 1898) included within the definition of the word ''offence'' any act in respect of which a complaint may be made u/s 20 of the Cattle Trespass Act, 1871. Section 260, Clause (m) of the Code makes offences u/s 20 of the Cattle Trespass Act, 1871, triable summarily. Thus, under the Code of 1898, cases u/s 20 of the Cattle Trespass Act come within the ordinary jurisdiction of the magistracy and there is no reason now for holding that these cases should be dealt with in any way different from any other offence.

It may be mentioned here that the question that was for consideration in this case was whether a proceeding u/s 20 of the Cattle Trespass Act could be transferred u/s 192 of the Code of Criminal Procedure. It was not actually concerned with, the question whether an order u/s 22 of the Cattle Trespass Act was appealable or not. But nevertheless this case is important as it gives us some valuable clue as to the real nature of a proceeding started u/s 20 of the Act. By drawing attention to Clause (m) of Section 260 of the Code of Criminal Procedure it shows that the proceeding is a criminal trial like any other criminal trial under the Code.

The other case referred to in the judgment of Ramaswami, J. and which has a direct bearing on the question before us is a Bench decision of the Bombay High Court Rodriks v. Papa Dada ILR 46 Bom. 58. It was held in this case that an order for payment of compensation u/s 22 of the Cattle Trespass Act was, appealable and that the compensation payable was not a fine and that hence the restrictive provisions of Section 413 of the Code of Criminal Procedure did not apply.

Thus we find that the Bombay and the Madras High Courts are of the view that the order is appealable. The contrary view expressed by Somasundaram, J. of the latter High Court sitting singly may be ignored as it did not take any notice of the earlier Division Bench ruling. The High Courts of Nagpur and Madhya Pradesh are on the other hand of the view that such an order is not appealable. Now the basis for holding that the order was not appealable is that the person complained against u/s 20 of the Cattle Trespass Act is not an accused nor is the order awarding compensation u/s 22 a conviction. The reason for not regarding the order for payment of compensation as a conviction is that compensation is riot fine as no order for imprisonment can be made in default of compensation.

There is, however, no law which requires that in every case when a sentence of fine is imposed there should be an order for imprisonment in default of payment of fine. All that Section 64 of the Indian Penal Code says is that it shall be competent to the Court which sentences an offender to fine to direct by the sentence that in default of payment of the fine the offender shall suffer imprisonment. It is simply an enabling section. If the Magistrate does not direct that in default of payment of fine the offender shall suffer imprisonment the fine shall not by reason of the omission cease to be a fine. So the criterion of a fine is not necessarily whether there is an order in the alternative for imprisonment.

Be that as it may there are, however, other reasons for holding that the order for payment of compensation u/s 22 of the Cattle Trespass Act is not a fine. Section 23 of the Act provides:

The compensation, fines and expenses mentioned in Section 22 may be recovered as if they were fines imposed by the Magistrate.

The ordinary mode of levying fine is laid down in Section 386 of the Code of Criminal Procedure. The procedure for recovering the compensation shall, therefore, be the same as provided in Section 386 of the Code. Now if the compensation amounts had really been a fine under the Code of Criminal Procedure, then there would have been no necessity of the ''deeming provision'' that we find in Section 23 of the Cattle Trespass Act. It is therefore quite obvious that the amount that is to be paid as compensation is not a fine. In the Bombay decision already referred to, i.e. Rodriks v. Papa Dada (Supra), also it was held that the compensation awarded u/s 22 was not a fine. The following observation was made in that case:

We see no necessity why the Court should exert its ingenuity to discover that what is stated by the Legislature to be compensation, which is one thing, is to be included in the term ''fine'' as laid down in the Penal Code and other Penal statutes, which is another thing. It is quite true that a person who is ordered to pay compensation and pays it, is out of pocket to the extent of the amount paid and the person who is ordered to pay fine and pays it, is also out of pocket to the'' extent of the fine, but it does not follow that the nature of the penalty exacted is the same.

Now the question is, if the compensation awarded be not a fine, how far it would be proper to treat the person who has been ordered to pay it as a person convicted. The act of seizure and detention of cattle in contravention of the provisions of the Cattle Trespass Act is an offence within the definition of Section 4(1)(O) of the Code of Criminal Procedure and the proceeding that is started on a complaint being made u/s 20 of the Cattle Trespass Act is a criminal trial as will be evident from Clause (m) of Section 260(1) of Code of Criminal Procedure. It is quite immaterial whether the person complained against has been described as accused or not. If the act complained of is an offence and if he is put on trial for such act then he is certainly in the position of an accused. It is difficult to conceive that the statute has created an offence without providing some sort of punishment for the commission thereof. Evidently the compensation that is payable u/s 22 is the punishment for the offence. When a person has been tried and found guilty and ordered to pay compensation under that section he is certainly a ''person convicted on a trial'' within the meaning of Section 408 of the Code of Criminal Procedure and as such, an appeal would lie from such an order. I, therefore, respectfully agree with the views expressed by Ramaswami, J. sitting singly and the two Division Bench decisions of the Madras and Bombay High Court respectively referred to earlier and hold that an order for payment of compensation u/s 22 of the Cattle Trespass Act, 1871, is appealable.

Mr. De further argued that in any case an offence under the Cattle Trespass Act being triable summarily no appeal would lie as provided in Section 414 of the Code of Criminal Procedure when the fine imposed does not exceed rupees two hundred. But we find that as a matter of fact the case was not tried summarily. Section 414 of the Code of Criminal Procedure is not, therefore, attracted at all.

As regards merits we need refer to one thing only. The learned Sessions Judge believed the defence witness who said that the crops of the opposite parties were damaged. But in his judgment he made certain observations which are likely to create a different impression. Mr. De, relying upon these observations, argued that the conclusion arrived at by the learned Sessions Judge is not supported by his own findings regarding fact. The sentence which appears to be contradictory to the tenor of the judgment is this:

There is no sense in coming to the conclusion that when crops standing on a portion of a field is damaged by the cattle, they must necessarily damage the crops of the remaining portion.

These observations were made with reference to the evidence of the D.W. 2 who said that a half of C.S. plot No. 109 belonged to him and the other half to the opposite party Sudhir and that the cattle damaged the crops standing on Sudhir''s half and not on his half. The trying Magistrate thought that it was improbable that the cattle while damaging the crops of one half of the land would not touch those on the other half. He, therefore, disbelieved the defence witness. What the learned Sessions Judge meant to say was that the witness need not necessarily be disbelieved simply because he has said that the cattle destroyed the crops of one half of the land leaving undamaged the crops of the remaining half. The Judge did not mean to say that there was no damage to the crops of the opposite parties. The judgment was not, therefore, self-contradictory. We agree with the learned Sessions Judge that there was ample evidence for holding that there was justification for seizure and detention of the cattle. The Magistrate''s order was rightly set aside.

The Rule is accordingly discharged.

Amaresh Roy, J.

I agree that the Rule should be discharged, but I shall only state in short my own reasons for that decision on the points of law raised and also on events.

This case has been referred to Division Bench by K.C. Sen, J. because it raises a point of law on which there appears to exist divergence of views held in several High Courts in India, while there is no decision either of Division Bench or of single Judge in this Court directly on the point of law whether an order made by a Magistrate u/s 22 of Cattle Trespass Act, 1871, is appealable under Chap. XXXI of Code of Criminal Procedure.

How the point arose in the present case in that form will appear from the outline of facts and procedure followed in it. Present Petitioner made a complaint in the Court of S.D.O. alleging that several heads of his cattle had been impounded by the opposite parties illegally and unreasonably. The complainant claimed compensation u/s 22 of the Cattle Trespass Act. In the same complaint an offence u/s 506, I.P.C., was also alleged. The Magistrate summoned the opposite parties for trial for both the offences and by following a procedure of trial of a warrant case, after taking evidence, charges were framed for both counts, one u/s 506, I.P.C. and another u/s 22 of Cattle Trespass Act. In the trial Court the Magistrate acquitted the accused persons in respect of the charge u/s 506, I.P.C., but u/s 22 of Cattle Trespass Act he awarded compensation to be paid by the accused persons.

Against that order for compensation u/s 22 of Cattle Trespass Act the accused persons preferred an appeal to the Court of Sessions u/s 408, Code of Criminal Procedure. The learned Judge overruled the objection raised against maintainability of the appeal and on the merits allowed the appeal by setting aside the order of compensation.

The Petitioner moved this Court against that order allowing the appeal and obtained the present Rule on the ground that the appeal before the Sessions Judge was not maintainable and the appellate order was passed without jurisdiction. When the Rule came up for hearing before K.C. Sen, J., sitting singly, the learned Judge made the order referring the case to a Division Bench.

Before us Mr. Jnanendra Mohan De has first relied on a Division Bench decision of this Court, Dhiku v. Deno Nath Deb alias Dinu (Supra) and also a Division Bench decision of Bombay High Court in the case of Queen Empress v. Raya Lakshma (Supra) for contending that neither compensation awarded u/s 22 of Cattle Trespass Act is a punishment of fine nor the order is one of conviction for an offence and also for contending that neither the person against whom such compensation is awarded is an accused, nor the act for which such compensation is an offence. Mr. De has, accordingly, argued at the hearing before us that for those reasons an appeal cannot lie against such order, because Chap. XXXI in general and Section 408, Code of Criminal Procedure in particular, provide appeal only when a person has been convicted on a trial and sentence has been passed. He argues that conviction can only be of an accused for an offence and sentence can only be by awarding fine or imprisonment. He relies on the two decisions above-mentioned as authorities for holding that compensation awarded u/s 22 of Cattle Trespass Act is not fine imposed for any offence. Mr. De has also relied on two decisions of Nagpur High Court, viz., Ghulba Lahanu v. Emperor (Supra) and Matru Udesingh v. Dhunnilal Sitaram AIR 1951 Nag. 287 and particularly on a Division Bench decision in Shankerlal v. Ramshanker (Supra). Relying on the last decision mentioned above and adopting the reasons mentioned in that decision as part of his arguments, Mr. De has contended that the decision the Madras High Court relied on by the learned Sessions Judge, i.e., the decision in Muruvan v. Ramabadra Naidu (Supra) should be held to have been wrongly decided.

On behalf of the opposite parties, Mr. Ajit Datta in his leading argument and Mr. Prasun Ghosh following him have contended that the decision in Muruvan v. Ramabadra Naidu (Supra) though it emanated from a learned single Judge of that High Court should be accepted as correct decision on the point and the decisions of Nagpur High Court and also Madhya Pradesh High Court above-mentioned should be held to be wrong.

The point requires very careful consideration not only because it is one about the right of appeal but also because in this Court it has the look of ''res integra'' and there is direct conflict of view-points between Nagpur and Madhya Pradesh High Courts on one hand and Madras on the other. In Madras High Court itself two opposite views directly appear on this point in two recent decisions, Muruvan v. Ramabadra Naidu (Supra) and in Venkatesa Reddiar v. Veerasami Mudali (Supra), both of which are single Judge decisions, though there is an earlier Division Bench decision, viz., In the matter of Ponnusami (Supra) on the point.

For-proper appreciation and understanding of the many decisions cited before us it is necessary to keep in mind the terms of relevant sections in Cattle Trespass Act which is an Act of 1871 and also the legislative changes brought about by the Code of Criminal Procedure, 1898. Only by reference to those legislative changes can the force and import of the old decisions be understood and appreciated.

Relevant Sections of the Cattle Trespass Act art as follows:

Section 10: The cultivator or occupier of any land, or any person who has advanced cash for the cultivation of the crop or produce on any land, or the vendee or mortgagee of such crop or produce, or any part thereof,

may seize or cause to be seized any cattle trespassing on such land and doing damage thereto or to any crop or produce thereon and send them or cause them to be sent within twenty four hours to the pound established for the village in which the land is situate.

All officers of police shall, when required, aid in preventing (a) resistance to such seizures and (b) rescues from the persons making such seizures.

Section 20: 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.

Section 21: 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 enquiry into the case.

Section 22: 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 fines 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 fines and expenses leviable under this Act shall be paid by the person who made the seizure or detained the cattle.

Section 23: The compensation, fines and expenses mentioned in Section 22 may be recovered as if they were fines imposed by the Magistrate.

In the earlier Codes of Criminal Procedure, there was no reference in any part about Section 22 of the Cattle Trespass Act. But in the Code of 1898 for the first time in Section 4 in definition of offence in Clause (O) of that section it was provided:

offence means any act or omission made punishable by any law for the time being in force; it also includes any act in respect of which a complaint may be made u/s 20 of the Cattle Trespass Act, 1871.

and in Section 260(m) "offence u/s 20 of the Cattle Trespass Act, 1871" was mentioned for summary trial of offences.

The decisions in Queen Empress v. Raya Lakhma (Supra) and Dhiku v. Deno Nath Deb alias Dinu (Supra) are decisions of dates earlier than 1898. In the state of law when the inclusive part of Section 4(O) and Clause (m) of Section 260, Code of Criminal Procedure were not existing in the Code, the view was taken in those decisions that the illegal act for which compensation is provided in Section 22 of the Cattle Trespass Act was not an ''offence''. Not only so. In the case of Raghu Singh v. Abdul Wahab ILR 23 Cal. 442 the same view was taken again in this Court and also in Meghai v. Sheobhik ILR 18 All. 353 and Ors. decisions of that era. But that view was soon overruled by Legislature enacting Code of 1898 in which the inclusive part in Section 4(O), Code of Criminal Procedure was added and also Clause (m) of Section 260, Code of Criminal Procedure The effect brought about by that legislative action was noticed in Bombay in the decision in Emperer v. Visvanath Vishnu Joshi ILR 46 Bom. 58 and Barthol Duming Rodriks v. Papa Dada (Supra) and in this Court in the decision in Budhan Mahato v. Issur Singh (Supra). That decision of this Court was by a Division Bench.

In Madras High Court similar trends and changes of view are noticeable in decisions in Khador Khan (Supra) (Cr. Rev. No. 467 of 1887) and Uppalakandi Kunhi Kutti Ali Haji v. Kunnam Mithal Kottaprath Abdul Rahiman ILR 19 Mad. 288 which are decisions earlier than that legislative change and in the matter of Ponnusami (Supra) which is a Division Bench decision after the legislative change was enacted in 1898.

There is now unanimity of view in Bombay, Calcutta and Madras that in law after 1898, Section 22 of the Cattle Trespass Act deals with an offence and trial of an accused for such offence. The case in Budhan Mahato v. Issur Singh (Supra), however, decided the question only for the purpose deciding on the point of power of a second class Magistrate to try such case and also power to transfer such case u/s 192, Code of Criminal Procedure The question whether the compensation awarded is a punishment or whether order u/s 22 is appealable did not arise in that case and we do not get any direct authority on that point in this Court.

But that question was recently mooted in the case, Venkatesa Reddiar v. Veerasami Mudali (Supra) by Sundara, J. sitting singly. That learned Judge held in the negative without noticing contrary Division Bench decision of the same High Court in In the matter of Ponnusami (Supra). The same question again arose in Madras in the case Muruvan v. Ramabadra Naidu (Supra). Ramaswami, J. who delivered that judgment has reviewed the case law on the point both by reference to judicial decisions in several High Courts in India, including this Court and almost all the treatise and commentaries on Code of Criminal Procedure by learned authors, to show that decisions earlier to 1898 are no longer good law and a person sentenced to pay compensation u/s 22, Cattle Trespass Act, would come within Section 407, Code of Criminal Procedure.

In course of that laborious and illuminating judicial survey, Ramaswami, J. discussed also two decisions of Nagpur High Court in Ghulba Lahanu v. Emperor (Supra) and Matru Udesingh v. Dhunnilal Sitaram (Supra), both of which took negative view. But the learned Judge preferred to follow the earlier Bench decision of this High Court in In the matter of Ponnusami (Supra), apart from expression of his own opinion, gathered upon independent review of law, that the positive view appeared to him to be the better construction.

I respectfully agree with the view of Ramaswami, J. expressed in Muruvan v. Ramabadra (Supra) and the Division Bench decision in In the matter of Ponnusami (Supra) for the reasons I shall presently state, in course of which I need notice not only the two Nagpur decisions but also another of Madhya Pradesh, viz., Shankerlal v. Ramshanker (Supra) which have been relied on by Mr. De before us.

Looking to the relevant provisions of Cattle Trespass Act the subject-matter of the particular chapter is clearly a penalty for an illegal act of unreasonable impounding of other person''s cattle. Section 20 provides for a complaint being made, Section 21 for the procedure upon such a complaint and Section 22 provides for awarding compensation to be paid by the person ''adjudged'' guilty of the illegal act. That clearly is a punishment for an illegal act imposed upon conviction on a trial held by a Magistrate who is a criminal Court. Those elements are sufficient for a right of appeal within Chap. XXXI of Code of Criminal Procedure subject to restrictive provisions in several sections in the chapter.

In the case, Rodriks v. Papa Dada (Supra), that position was conceded. But the learned Judges who decided that case took the view that although u/s 22 the order is upon a conviction of an accused person, it would be an ''ingenuity'' to think that punishment awarded as payment of compensation is a fine, because the Legislature did not use that term in Section 22 and provided a deeming clause in Section 23. In my view, for a right of appeal within Chap. XXXI all that is necessary is that the person has been convicted and a sentence has been passed. What kind of punishment the order has imposed is relevant only for the restrictive provisions in that chapter. Nomenclature of punishment as being one of fine is not relevant for right of appeal. It has to be noticed that in that case only point raised was a plea in bar of the appeal by referring to Section 413, Code of Criminal Procedure and their Lordships of Bombay High Court held that the compensation awarded u/s 22 is not a fine, only to save the right of appeal by steering clear of that restrictive provision.

Section 4(O), Code of Criminal Procedure defines it as an ''offence'' and Section 260(m), Code of Criminal Procedure make it clear that it is a trial for such offence. In a criminal trial the person tried is an accused and he can either be acquitted or convicted. An order holding him guilty of offence is in my view conviction and a penalty imposed upon conviction is a punishment or sentence. If the penalty is by ordering payment of money, by whatever name it may be called and to whomsoever the money may be payable, it is a sentence awarded upon conviction.

Moreover, Section 545, Code of Criminal Procedure clearly provides that whole of the fine imposed may be awarded as compensation to a party instead of any part of it going to the coffers of the State. Therefore, compensation wholly payable to party may very well be ''fine'' imposed for the ''offence'' found against a person tried by a criminal Court. Neither fine'' nor ''accused'' has been defined anywhere. When asked by us what is a ''fine'' and who is an ''accused'', Mr. De in his learning and cogency said that a person tried for an offence is an accused and punishment awarded against him is fine. That exactly fits with compensation u/s 22.

Again a fine imposed need not necessarily be accompanied by an order for imprisonment in default of payment of fine. In the whole of Penal Code there is no such compulsion to impose an in-default sentence of imprisonment. Section 64, I.P.C., is only enabling provision saying that Court is competent (and is not compelled) to impose in default sentence. The punishment provided in Section 22 of Cattle Trespass Act has all the characteristics of a fine, though it is not called so.

Section 382, Code of Criminal Procedure clearly shows that there may be an order of fine only, without an in default sentence of imprisonment. That section provides for execution of a sentence of fine. By Section 22, Cattle Trespass Act, the compensation awarded u/s 22 shall be deemed to be a fine for the purpose of its realisation by execution. That deeming clause is necessary because in Section 22 the word ''fine'' has not been used. The purpose for not using the word ''fine'' is obviously to keep it out of enabling provision in Section 64, I.P.C. Clearly the Legislature intended that there shall not be imprisonment in default of payment of compensation awarded u/s 22, but only money shall be realised u/s 382, Code of Criminal Procedure.

Avoidance of restrictive Section 413, Code of Criminal Procedure may be another person why the word ''fine'' has not been used in Section 22. The view in the case Rodriks v. Paba Dada (Supra), therefore, helps me to be confirmed in my view that order u/s 22 is a sentence imposed upon a conviction and therefore, is appealable under Sections 407 and 408, Code of Criminal Procedure though the word ''fine'' has not been used in that section.

Keeping those clear provisions in Statute and their purposes and effect above-mentioned in mind, when the reasons that impelled the learned Judges to take the negative view as they appear in the two Nagpur decisions and Madhya Pradesh decision above-mentioned are examined, each of those reasons appear to me to be untenable Conversely, the reasons that prevailed in Muruvan v. Ramabadra (Supra) appear to me good and cogent reason.

Even assuming that the negative view is also a possible view, to my mind the positive view is better and correct view for the other reason that a penal statute need be strictly interpreted for rights and remedies of the citizen punished and beneficent construction should be adhered to for upholding a right of appeal from a penal order of a criminal Court. An interpretation that admits of that cherished right needs be preferred to one that denies it. The width of the view held by this Court in favour of right of appeal can be discerned in the judgment of Division Bench in Banuruddin v. Gani Mia (1935) 40 C.W.N. 287 and Ramphal v. Jasodia (1936) 40 C.W.N. 862, relying on which Jack, J. delivered the judgment in Maharaj Bir Bikram v. Emperor (1937) 41 C.W.N. 512 holding that Section 520, Code of Criminal Procedure creates a right of appeal from an order made u/s 517, Code of Criminal Procedure I am, therefore, clearly of the view that compensation awarded u/s 22 of the Cattle Trespass Act is a sentence imposed upon a conviction of the person who is an accused payable to the complainant as compensation and comes within Chap. XXXI of Code of Criminal Procedure generally and within Sections 407 and 408, Code of Criminal Procedure in particular.

Mr. De then argued that if tried summarily by a Magistrate empowered u/s 260, Code of Criminal Procedure there shall not be an appeal as is enjoined by Section 414, Code of Criminal Procedure unless fine imposed exceeds rupees two hundred. In the instant case, the trial was not by summary procedure and Section 414, Code of Criminal Procedure is not attracted at all. It will not also apply for the same reasons that prevailed in Bombay High Court in Emperor v. Visvanath Vishnu Joshi (Supra).

I, therefore, hold in agreement with my learned brother that the appeal in the Court below was quite competent and the learned Sessions Judge has rightly held that he had jurisdiction to entertain and decide the appeal. Mr. De''s contention, therefore, fails.

We have considered the merits also and I agree with my learned brother that the decision of the appellate Judge is right, though in expressing his reasons for setting aside the order of the Magistrate, the learned Additional Sessions Judge has employed subtleties that tended to create some confusions in understanding. It could, however, be ascertained that the learned Judge has differed with the view of the Magistrate about existence of rationality of some sort in the bovine species, that is, cattle. The Magistrate thought destruction of crops on a part of a field, leaving the other part undamaged is unreasonable contemplation, so much so that for disbelieving the testimony of D.W. 2, he imagined that a herd of cattle will damage either the whole area or not at all The learned Sessions Judge has held that partial destruction as deposed to by D.W. 2 in the case is quite in consonance with what the learned Judge calls animal habit. We hold that, be it called bovine rationality or instinctive behayipur or be it called animal habit, a herd of cattle consisting of 50 buffaloes may very well behave in the manner spoken of by D.W. 2. The Judge is right in our view that the circumstances established by evidence in the case do not warrant a finding that impounding of the Cattle was unreasonable.

Order for compensation, therefore, has been rightly set aside. Oil the merits also the Rule is liable to be discharged.