(Petition (disposed of on 2-9-1942) under Ss. 435 and 439 of the Criminal Procedure Code, 1898, praying that the High Court will be pleased to revise the judgment of the Court of the Sub Divisional First Class Magistrate, Namakkal dated 5th February 1942 and passed in C.A. No. 3 of 1942 preferred against the judgment of the Court of the Stationary Sub Magistrate of Namakkal in C.C. No. 1852 of 1941.)

The petitioners were convicted under S. 426 of the Indian Penal Code, for sending their cattle to graze on the bund of a tank belonging to the complainant, and the convictions were confirmed in appeal.

In a somewhat similar case that came before Curgenven J. in Raghupathi Ayyar v. Narayana Goundan (52 Mad. 151 [LQ/MadHC/1928/235] = 28 L.W. 759), the learned Judge expressed the opinion that,

destruction of any property within the meaning of S. 425, Indian Penal Code carried with it the implication that something should be done to the property contrary to its natural use and serviceableness.

He added by way of illustration:

It may be mischief, to throw the contents of a pot of food upon the fire; but it is not mischief, though it may be theft, to eat the food.

He applied the illustration to the case before them and said,

And so here, since the graziers, by allowing their goats to graze, did no more than put the grass to its normal use, by the same reasoning their act would not amount to mischief, though it may have amounted to theft.

With due respect I quite appreciate the arguments of the learned Judge in that case; but in another similar case considered by a Bench of this Court in Gurram Siddagadu, In re. (1 Weir 492), Kernan, J. said,

There appears to be no doubt that defendants grazed the cattle in order to derive the benefit of the grazing on the Government property, viz., the grass, and it appears to be equally clear that the consumption of the grass caused the destruction of it, so far as the Government right was concerned.

The other Judge, Brandt J. adopted the same reasoning. If one construes S. 425 strictly, there can be no doubt that property was destroyed by the grazing of the cattle, although it may be thought, as Curgenven J. did, that the Legislature could not have intended to speak of destruction if a thing were destroyed in the way that nature intended it to be destroyed, such as food or grass by eating. Curgenven J. sought to distinguish Gurram Siddagadu, In re. (1 Weir 492) but I find myself unable to do so.

The question is however rather academic; for this Court could change the conviction from S. 426 of the Indian Penal Code to S. 379 of the Indian Penal Code. The ingredients of the charge were properly set out; and the evidence would be the same whether the charge were under S. 379 of the Indian Penal Code or S. 426 of the Indian Penal Code; for the gravamen of the offence was that cattle grazed the crop belonging to the mittadar, the complainant.

The petitioners have been punished with a petty fine of Rs. 10 each. No interference is called for in revision.