K. Dusadh vs Sarati Dusadh and others

Adami, J.—The petitioner in this application seeks to have an order acquitting the opposite party of an offence under sections 352 and 24 of Act I of 1871 set aside. The petitioner complained that the opposite party had rescued cattle which his watchman had seized on the petitioner''s land. The only question considered by the Deputy Magistrate who tried the case summarily was whether u/s 10 of Act I of 1871, the Cattle Trespass Act, the watchman of the petitioner had any power to seize cattle on his master''s land and take them to the pound. The learned Deputy Magistrate found that the watchman was neither a cultivator nor occupier nor fulfilled the other qualifications mentioned in the section. He therefore found that the opposite party had committed no offence and acquitted them of the charge. The Sessions Judge was approached with a view to having this finding set aside but he declined to make a reference to this Court. He however found that there were irregularities in the trial and that the petitioner had not made out a strong enough case to warrant a reference.

It is clear, I think, that the Deputy Magistrate was mistaken in his interpretation of Section 10 of Act I of 1871. The section states that a cultivator or occupier of any land may seize or cause to be seized any cattle trespassing on such land and the watchman might well be taken to be a person whom the petitioner as occupier and cultivator of the land had directed to seize cattle on that land. There may be no evidence on the record that there was any special authority given to the watchman but it may be presumed that the watchman would have general authority from his master to seize trespassing on his land. Further more there is a decision of the Madras High Court In re Subbaraya Pillai (1915) 31 I.C. 372 on the point to the effect that u/s 10 of the Cattle Trespass Act a watchman watching crops on land on behalf of a cultivator or occupier is entitled to seize cattle trespassing on the land under his charge when he is given general instructions to seize them while so trespassing.

The only question that I have to decide is whether where a mistaken view of the law has been taken by the Deputy Magistrate, the acquittal should be set aside and the case sent back for retrial. The case is a petty one and it is shown by the Sessions Judge that otherwise the procedure adopted was not altogether satisfactory. The opposite party in this case have undergone the harassment of a trial and have been brought up again to this court, and in the circumstances of this case, which I have said is a petty one, I am not inclined to interfere in revision and set aside the order of acquittal. The application is rejected.