Dhavle, J.This is an application in revision against the conviction of the petitioners u/s 24, Cattle Trespass Act, with a sentence of a fine of Rs. 15 each with 15 days rigorous imprisonment in default. The petitioners seem to have come up direct to this Court without going to the Court of Session which has concurrent powers of revision. It is not usual to entertain such applications direct, but after they have been admitted, they must, I take it, be disposed of on the merits. The learned advocate for the petitioners has contended that substantial injustice has been done to the petitioners by the refusal of the trying Magistrate to allow an Assistant Sub-Inspector, who was examined as a witness for the defence, to be cross-examined by them. The circumstances in which permission to cross-examine him was asked for are these: The prosecution case was a case of cattle trespass and rescue at 8 oclock in the morning on 12th May 1939.

2. One of the defences was that the prosecution case was wholly false and that Suraj Singh, on whose complaint the prosecution case was started, was, at the time of the occurrence alleged by him, 8 miles away from the scene of the occurrence, lodging a sanha at the thana of Ramnaga, which was recorded by the Assistant Sub-Inspector, the defence witness in question. In his cross-examination the Assistant Sub-Inspector stated that he did not "verify the authenticity of man who lodges sanha," and that complainant Suraj Singh, who was shown to him was not the man who had lodged the particular sanha in question.

3. It appears that the same officer had 15 days before proved in a dacoity case the very sanha as lodged by Suraj Singh. It may be that there was some explanation of this peculiar circumstance, but Mr. Mitter, who appears for the opposite party has not been able to suggest any reason, why the defence should not have been allowed to cross-examine the Assistant Sub-Inspector in the circumstances. The point was important because if it was Suraj Singh that lodged the sanha with the Assistant Sub-Inspector, his present story of cattle trespass and cattle rescue could hardly be true.

4. The learned Magistrate passed no orders on the application made by the defence for permission to cross-examine the witness, but merely said "file" on it, and this, it has been repeatedly held, is not a proper way of disposing of an application in the course of a criminal trial.

The learned advocate for the petitioners has also contended that the conviction is bad because there is no clear finding of damage done by the trespassing cattle. It has been held in several eases that such a finding is essential to a conviction u/s 24, Cattle Trespass Act.

5. Mr. Mitter has urged that the Magistrate may be taken to have accepted the prosecution story of cattle grazing in the field, but even the acceptance of this story does not necessarily imply damage, for, it is no part of this story as briefly referred to by the Magistrate that the cattle caused any damage by the grazing. Both the points urged on behalf of the petitioners must, in my opinion, be accepted. The result is that this application in revision is allowed and the conviction of the petitioners set aside. Any fines paid by them will be refunded on application.