Authored By : William Comer Petheram, Beverley

William Comer Petheram, C.J. and Beverley, J.

1. The accused in this case are found to have loosed the complainantscattle at night and to have driven them to the pound with the object of sharingwith the pound-keeper the fees to be paid for their release; and they have beenordered by the Joint Magistrate to pay compensation under Section 22 of Act Iof 1871 (Cattle Trespass Act), and in default to suffer one months rigorousimprisonment.

2. The District Magistrate refers the case to us on theground that the penalty inflicted is inadequate, and he asks us to quash theproceedings and direct that the accused be tried for theft.

3. We are of opinion that the proceedings of the JointMagistrate must be set aside, inasmuch as on the findings this was not a caseof illegal seizure and detention of cattle under the Cattle Trespass Act, andtherefore Section 22 of that Act is not applicable. We agree with Mr. Phillipsthat in this case all the elements of theft are present, as that offence isdefined in Section 378 of the Penal Code. We accordingly set aside theproceedings of the Joint Magistrate, and direct that the accused be placed ontheir trial charged with an offence under Section 379, Penal Code.

4. Mr. Phillips also appears to us to be right in theopinion that the sentence of imprisonment awarded in default of payment of thecompensation is not warranted by the law. This was held in the case of In thematter of Ketabdi Mundul 2 C.L.R. 507 but the other case cited Shaik Hussain v.Sanjivi I.L.R. Mad. 345 is not to the point. The law prescribes that thecompensation may be levied as a fine, but it does not say that imprisonment maybe awarded in default of payment, and we are not aware of any provision of lawwhich provides that fines may be levied by means of imprisonment. The ordinarymode of levying fines is laid down in Section 386 of the Code of CriminalProcedure. This part of the Joint Magistrates order therefore is clearlyillegal (see Ramjeevan Koormi v. Doorga Charan Sadhu I.L.R Cal. 979 Ed. note).

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Paryag Rai vs. ArjuMian and Ors. (18.08.1894 - CALHC)