22 September 1964
Supreme Court


Case number: Appeal (crl.) 29 of 1963






DATE OF JUDGMENT: 22/09/1964


CITATION:  1965 AIR  926            1965 SCR  (1) 293

ACT:     Cattle  Trespass Act, (1 of 1871) s. 10-Cattle  damaging crops-Seizure  under statute-Seizure  not  justified-Whether amounts to theft --Owner whether can rescue cattle  invoking right of Private defence of property-Indian Penal Code, 1860 (Act 45 of 1860), ss. 97, 378.

HEADNOTE:    The  appellants  seized cattle from a  field  which  they claimed  to be in their ion.  They were taking them  to  the cattle-pound,  purporting to act under s. 10 of  the  Cattle Trespass  Act,  1871.  The complainants to whom  the  cattle belonged  tried to rescue them and in the fight that  ensued several persons on both sides were injured and one member of the  complainant-party died.  The Sessions Judge found  that the cattle had been seized illegally as the field from which they  had been taken belonged to the complainants.   However he acquitted the appellants on the ground that they hail the right of private defence of person against the  complainants who wanted to rescue their cattle by force, having no  right of  private defence of property.  The High Court, in  appeal against the acquittal held that the complainants had a right of  private defence of property and could rescue the  cattle by  force.  On this finding it convicted the appellants  who came to the Supreme Court by special leave.   The  main question for consideration was whether a  person who  seizes cattle illegally, purporting to act under s.  10 of  the Cattle Trespass Act, 1871, commits offence of  theft or  robbery or not, for on that would depend which side  had the right of private defence.    HELD : (i) When a person seizes cattle on the ground that they were trespassing on his land and causing damage to  his crop or produce and gives out that he was taking them to the pound,  he commits no offence of theft however  mistaken  he may be about his right to that land or crop. [305B].    Queen  v.  Preonath  Banerjee,  5  W.R.  68   (Criminal), Wazuddin  v.  Rahimuddin,  (1917) 18 Cr.   L.J.  849,  Abdul Khatiq v. Emperor, A.I.R. 1941 Lah. 221, Paryag Rai v.  Arju Mian,  I.L.R.  22 Cal. 139 and Queen Empress v.  Sri  Churan Chungo, I.L.R. 22 Cal. 1017, held inapplicable.     Empress v. Ramjiawan, (1881) 1 All.  W.N. 158 and  Dayal



v. Emperor, A.I.R. 1943 Oudh 280, approved.    (ii)   Mere  seizure of cattle is not theft.   For  theft dishonest movement of cattle stolen is also necessary.   The person who seizes cattle found to be damaging his crops  and takes  them  to  the pound does so in  accordance  with  the specific direction given in s. 10 of the Act.  His act being in  accordance  with  the provisions of the  Act  cannot  be considered,  prima  facie,  to be  dishonest.   Nor  can  an intention to cause wrongful loss to the owner of the  cattle or wrongful gain to himself be attributed to him unless  his avowed intention of taking the cattle to the pound is  found to be a cover for some other intention which may be inferred from circumstances.  There is, in fact, no wrongful gain  or wrongful  loss to either party by the impounding of  cattle. [303B-E; 304E-H].   K. N.  Mehra  v.  State of Rajasthan  [1957]  S.C.R.  623, relied on.. sup/.64--6 294     (iii) The remedy of the owner of cattle seized under  s. 10 of the Act is to take action under s. 20 of the Act.   He has  no right to use force to rescue the cattle  so  seized. The complainants who went armed with sharp-edged weapons and lathis to rescue the cattle had no right of defence of their property against the appellants. [305B-C].   (iv)    In  the  circumstances the  appellants  who  could reasonably apprehend that the complainants would cause  them grevious hurt for the purpose of rescuing their cattle,  had the  right of private defence and they committed no  offence in causing injuries to the other party and the death of  one of its members. [306F-G].

JUDGMENT:    CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.  29 of 1963. Appeal  by special leave from the judgment and  order  dated December  13,  1962, of the Patna High Court  in  Government Appeal No. 24 of 1960.    Nuruddin  Ahmed,  B. P. Singh and U. P.  Singh,  for  the appellants.   B. P. Jha, for respondent No. 1.   The Judgment of the Court was delivered by    Raghubar  Dayal J. This appeal, by special leave,  raises the  question whether a person who seizes cattle  illegally, purporting  to act under S. 10 of the Cattle  Trespass  Act, 1871,  hereinafter the Act, commits the offence of theft  or robbery or not.  The question arises in this way.   On  the morning of November 28, 1957, a number  of  cattle belonging  to several persons, including  Shamnarain  Singh, were  observed by a number of persons,  including  Ramnandan Singh  and Ram Rattan alias Ratan Ahir, grazing in a  kurthi field   about  which  there  was  a  dispute   between   the authorities of the Basic School and Shamnarain Singh each of them claiming the field.  Ramnandan Singh and others  seized those  cattle  and proceeded to take them to  the  pound  at village Tilauthu.  These persons were armed with sharp-edged weapons and lathis.   The report of the seizure of the cattle reached Shamnarain Singh and other people in the village.  A number of  people, variously  armed,  started from the village  to  rescue  the cattle.  They were joined by others on the way.  This party, including Sukhari Mahto, Deocharan, Sheodutt, Hari Mahto and Ramdeo, caught up with the other party a short distance from



the cattle pound and asked that party to release the cattle. Altercation  took  place between the parties and  then  they fought together.  According to the prosecution case, members of the appellants’ 295 party attacked Shamnarain Singh and his companions.  Accord- ing to the appellants it was the other party which  attacked them.  As a result of the fight five persons got injured  on the  side  of  Shamnarain Singh.  Of them,  Ramdeo  got  one gaping punctured wound in the right thigh with a spear.   He died  as  a result of the injury  received.   Sukhari  Mahto received 16 injuries including 4 incised wounds.  The  other three injured persons received ordinary injuries.  Deocharan had  an  abrasion, Sheodutt Singh got a lacerated  wound,  a swelling  and  an abrasion and Hari Mahto  had  a  lacerated wound.   On  the side of the appellants,  four  persons  got injured.  Ramnandan Singh received 12 injuries, including  4 incised wounds and 3 punctured wounds.  Ratan Ahir got three injuries  including  2 punctured wounds.  Sheorattan  got  5 injuries including 2 punctured wounds.  Rajkumar Singh got 2 injuries including one punctured wound.   Reports  were made at the police station on behalf of  the two  parties.  Hari Mahto lodged a report on behalf  of  the complainantparty  against 20 persons.  Ratan Ahir  lodged  a report  against  26  persons.  The police, as  a  result  of investigation, sent up 28 persons for trial.  The Additional Sessions Judge, Arrah, acquitted all of them.  He found that (1) Shamnarain Singh was in, lawful possession of the kurthi field  in  question on the date of occurrence and  that  the supposed  claim thereto raised on behalf of the defence  was not  in  good  faith;  (2) the cattle  were  seized  in  the presence  of  the charwahas in spite of their  protest;  (3) even though the seizure of the cattle from the kurthi  field by the accused party in these circumstances was an  unlawful act,  the conduct of the complainant-party, who  were  fully armed, in following them in order to release the cattle, was not justified as it showed a determination on their part  to get their cattle released by use of force and that therefore there  did not exist any right on the part of the owners  of the  cattle to the extent of securing the release  of  their cattle  from the hands of those who had seized them  earlier by use of force; (4) there was strong Probability in  favour of the view that it was the prosecution-party which  created the  crisis and took the aggression to initiate the  assault and that the prosecution narration as to the manner in which the  assault commenced at the scene of occurrence where  the assault  took place, did not commend itself to him and  that part  of  the  prosecution story  appeared  to  suffer  from material Suppression, and that, in these circumstances,  the accused  party had the reasonable apprehension of  suffering grievous hurt or death at the hands of the prosecution party and  they were justified in the exercise of their  right  of private defence of their bodies in 296 causing such injuries to the men on the prosecution side  as might  cause  death, the death so caused  being  justifiable homicide.    The State of Bihar appealed against the acquittal of  the 28  accused.  The High Court allowed the appeal  against  13 respondents and convicted Ratan Ahir under S. 302 I.P.C. and the others under s. 326 read with s. 149 I.P.C. and of  some other  offences.   It  may  be mentioned  that  one  of  the respondents had died and 14 others were acquitted.  The High Court  agreed with the Sessions Judge that the plot in  suit was  in  the  possession of Shamnarain Singh  and  that  the



seizure of the cattle by the accused-party was illegal.  The learned  Judges, however, were of opinion that the  Sessions Judge had taken a wrong view of the law in thinking that the members of the prosecution party were not entitled to rescue the  cattle by gleans of force only because the  respondents had  succeeded in taking away the cattle for some  distance. They  held that once the seizure of cattle was found  to  be illegal,  members of the accused party were in the  position of thieves-rather dacoits-when they had seized the cattle by show  of force to the cowherd boys, and that  therefore  the members  of the prosecution party had the right  of  private defence of property and could recover their cattle by use of force,  subject  to the limitation that force in  excess  of what  was  necessary be not used.  It also  found  that  the prosecution  party, in their attempt to rescue  the  cattle. had  been  violently attacked by the party of  the  accused. The  learned Judges probably did not agree with the view  of the  Sessions  Judge  that  the attack  was  opened  by  the prosecution party as there was no material in support of the view  on the record, but held that even the opening  of  the attack   by  the  prosecution  party  would  not  give   any justification  to  the  defence party for it  was  bound  to defend itself in the act of rescuing the cattle.   To consider the question of law raised in this appeal,  we accept the findings of the High Court to the effect that the plot in suit was in the possession of Shamnarain Singh, that the appellants and others seized the cattle grazing in  that plot  alleging that they were damaging their crops and  that they would take them to the pound, that Shamnarain Singh and others  armed, went to rescue the cattle and on meeting  the accused  party  asked them to release the  cattle  and  that after some altercation the accused party opened the attack.    It is not disputed-and it has been alleged from the  very beginning in the reports lodged by both the parties-that the appellants  and others had seized the cattle  alleging  that they 297 were  damaging their crops.  It follows that they  purported to seize the cattle in pursuance of the provisions of s.  10 of  the  Act.  In view of the finding that the plot  was  in possession  of Shamnarain Singh and that he had  raised  the crop,  such  seizure  was  illegal.  It  is  thus  that  the question  arises  whether  by  so  seizing  the  cattle  the appellants committed the offence of theft.  It is  necessary to  determine this point as it is only when  the  appellants and others had committed the offence of theft in so  seizing the  cattle  that any right of private defence  of  property arises in favour of Shamnarain Singh and his party who  went to  rescue  the cattle.  If the act of  the  appellants  and others  did not amount to theft, they committed  no  offence and therefore no right of private defence of property  arose in  favour  of Shamnarain Singh and others as such  a  right arises against the commission of an "offence" as defined  in s.  40  I.P.C. i.e., an act which amounts to  a  thing  made punishable  by the Code.  It may be mentioned that no  other offence is alleged to have been committed by the  appellants and  others  which  would have given the  right  of  private defence of property to Shamnarain Singh and others.    To  determine  the question raised, it  is  desirable  to refer  to  the provisions of the Act in order to  find  what actions  of the appellants would be in accordance  with  its provisions,  what  would be against them and  to  what  they would  be  liable  if they acted  against  such  provisions. Section 10 authorizes certain persons having interest in the crops  grown  on  any land to seize or cause  to  be  seized



cattle trespassing on it and doing damage thereto or to  any crop  or  produce  thereon.  It requires them  to  send  the cattle so seized, within 24 hours, to the pound  established for  the village in which the land is situate.   It  further provides  that all officers of police shall, when  required, aid  in preventing resistance to such seizures  and  rescues from persons making such seizures.    Section  11  authorises certain persons to  seize  cattle which  damage  public roads, canals, embankments  and  other things  mentioned in that section.  Section 12 provides  for the levy of fine for every head of cattle impounded.    Chapter  V  deals with complaints of illegal  seizure  or detention, and has four sections, ss. 20 to 23.  Section  20 reads:               Power  to make complaints.  Any  person  whose               cattle  have been seized under this  Act,  or,               having been so               298               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  authorized  to  receive  and   try               charges without reference by the Magistrate of               the district."               Section  21 deals with the procedure  on  such               complaint and S. 22 reads:               "Compensation    for   illegal   seizure    or               detention.   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   complai nant   in               procuring the release of the cattle.               Release  of 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 provides that the compensation and expenses  men- tioned  in  s.  22 maybe recovered as  if  they  were  fines imposed by the Magistrate. Section  24  provides  penalty  for  forcibly  opposing  the seizure  of cattle liable to be seized under the Act or  for rescuing  such cattle after seizure, either from a pound  or from  any  person taking or about to take them to  a  pound. The  punishment on conviction is not to exceed  six  months’ imprisonment or a fine of five hundred rupees.    The  Act  does  not make the illegal  seizure  of  cattle punishable  as  an  offence.   The  person  seizing   cattle illegally  is made liable to pay compensation for  the  loss caused to the owner of the cattle on account of the  illegal seizure   of   cattle  or  of  detaining   the   cattle   in contravention  of  the Act.  He is also liable  to  pay  the fine-, and expenses paid in procuring release of the cattle. The  expression "under this Act" in S. 20 does not mean  "in accordance  with  the  provisions  of  the  Act"  but  means "purporting  to be in accordance with the provisions of  the Act" as "seizure" under the Act i.e., "seizure in accordance



with the provisions of the 299 Act" could never be illegal, and S. 20 deals with complaints of illegal seizure or detention.  The expression used in  S. 24  is  different and makes the forcible opposition  of  the seizure  of  cattle punishable when the cattle  seized  were liable  to be seized under the Act.  If the cattle were  not liable  to be seized, forcible opposition to  their  seizure would not be punishable under s. 24.   Section 25 of the Act provides a mode for the recovery  of penalty   for  mischief  committed  by  causing  cattle   to trespass.   It  thus takes notice of the offence  under  the Penal  Code  committed by the person who  causes  cattle  to trespass on other’s land, and provides that any fine imposed for the commission of that offence can be recovered by  sale of all or any of the cattle by which trespass was committed, whether  those cattle were seized in the act of  trespassing or  not  and whether they were the property  of  the  person convicted of the offence or were only in his charge when the trespass was committed.   Section  26, inter alia, provides for penalty  for  damage caused  by pigs through neglect or otherwise to crops  etc., or  public roads or damage by cattle generally if the  State Government so notifies.   Section  29  expressly provides that nothing  in  the  Act prohibits  any person whose crops or other produce  of  land have  been  damaged  by trespass of cattle  from  suing  for compensation in any competent Court, and S. 30 provides that any compensation paid to such person under the Act by  order of  the convicting Magistrate shall be set off and  deducted from any sum claimed by or awarded to him as compensation in such  suit.  There is no provision in the Act for the  award of  compensation to the person whose crops or other  produce of land had been damaged by trespass of cattle.  Section 30, therefore, appears to refer to the award of compensation  to such  person  under  S.  545 Cr.   P.C.  by  the  Magistrate convicting  the person, whose cattle had caused  damage,  of the  offence  of  mischief under the Penal Code  or  of  the offences under ss. 24 and 26 of the Act.    The  Act  has  not  any  provision,  comparable  to   the provisions  of  ss. 29 and 30, stating that a  person  whose cattle  had  been illegally seized or detained may  sue  for compensation  in  a competent Court  and  that  compensation awarded by the Magistrate under s. 22 of the Act be deducted from  any sum awarded to him in such proceedings.   The  Act does not make the illegal seizure or detention of cattle  an offence.    It  appears  that  the  legislature  intended  that   the provisions   of   Chapter   V  of   the   Act   would   deal comprehensively with the 300 case  of illegal seizures or detentions of cattle  and  that the  remedy available to a person whose cattle had  been  so seized or detained would be the one provided by S. 22 of the Act  and no other and that illegal seizure or  detention  of cattle  would  amount to no offence under  the  Penal  Code. There  appears to be good reason for this as the  object  of the  Act  was the protection of crops and other  produce  of land  from the damage by cattle trespassing on the land  and of  the  cultivators and occupiers of land  from  consequent loss and injury. The  Cattle Trespass Act of 1871 was enacted to  consolidate and amend the law relating to trespass by cattle.  The first Cattle  Trespass  Act was Act ITT of 1857 and  its  preamble reads:



             "Whereas  loss  and  injury  are  suffered  by               cultivators and occupiers of land from  damage               done to crops and other produce of land by the               trespass of cattle; and whereas damage is done               to  the sides and slopes of public  roads  and               embankments by cattle trespassing thereon; and               whereas  it  is  expedient  to  authorize  the               seizure  and detention of cattle doing  damage               as  aforesaid and also to make  provision  for               the  disposal of cattle found straying in  any               public place : It is enacted as follows:   Section  II  of the 1857 Act empowered the  cultivator  or occupier  of  any land to seize or cause to  be  seized  any cattle trespassing on his land and doing damage to any  crop or  produce thereon.  Section 10 of the Act gave such  right to other persons is well.  It did not however give the right to  seize  cattle damaging the crops to everyone  who  might notice  the cattle damaging the crops.  Though the power  to seize  cattle trespassing on a person’s land was given  only when the cattle were damaging the land or the crop the,-eon, it  should have been considered a difficult matter  for  the person authorized to seize cattle to determine first whether the  cattle  had  caused  damage to his  land  or  crop  and thereafter  to seize them.  The person so  authorized  would instinctively  first seize the cattle on his land  presuming that  they must have damaged the crop or the land  and  that any  further  presence of the cattle in  the  field  without their  being seized would lead to further damage.   Further, s.  10  of  the Act directs all  officers  of  police,  when required  to do so, to aid in preventing resistance to  such seizures and rescues from persons making such seizures.  The person  seizing the cattle is thus given police  protection. ’Me  police  officers  required to aid  would  not,  in  the circumstances, be 301 determining,   before rendering aid, whether the seizure  of cattle Was     legal   Or   not.   They  have   to   prevent resistance to seizures and  rescue of cattle from persons making seizures if they are  called  upon  by  the persons  seizing  the  cattle  to prevent resistance,  to the seizure or the rescue.  This  emphasizes the  view that seizures of cattle whether legal  or  illegal are  protected from interference.  The remedy of the  person whose  cattle  are  illegally seized  is  contained  in  the provisions of Chapter V. In  view  of  these  realistic  considerations,  the  person happening to seize the cattle which had not actually  caused damage  was  considered  to  be  acting  under  the  Act  as expressed in S. 20, so that no action not authorized by  the Act  be taken against him for conduct which be not  strictly legal.   At the same time the interest of the  person  whose cattle  are seized even when they had not caused  damage  to the  crop had to be protected.  It was also bound to  happen at times that persons not authorized to seize cattle in  the exercise of their larger duty to the people whose crops were being  damaged,, may be inclined to take action against  the cattle  they might notice damaging the crops.  Such  persons would  be  actuated by good intentions., but  actually  they would not be acting in accordance with the provisions of the Act  and  might  be liable for damages in  civil  courts  or possibly  also  criminally if the seizure  of  cattle  could amount  to  an offence under the Penal.  Code or  any  other law.   It was on a balancing of the interest of the  persons purporting  to  seize the cattle to protect  crops  and  the



interest  of the owners of the cattle that these  provisions of Chapter V seem to have been made. In view of these considerations, we are of opinion that  the provisions of Chapter V comprehensively deal with the  cases of  such  seizure  of cattle which had been  seized  in  the exercise of the power conferred by the Act or in furtherance of  its  objects  though not in  full  accordance  with  the provisions  of  the Act.  In view  of  these  considerations based  on the provisions of the Act it does not appear  that illegal  seizure of cattle by persons. purporting to act  in accordance  with  the  provisions of the  Act  could  be  an offence  of  theft under the Penal Code.  We arrive  at  the same conclusion by a scrutiny of the provisions of the Penal Code. We  may  now consider what acts constitute  the  offence  of theft  under the Penal Code.  ’Theft’ is defined in  s.  378 thus:               "Whoever,  intending to take  dishonestly  any               movable property out of the possession of  any               person 302               without  that  person’s  consent,  moves  that               property in.. order to such taking, is said to               commit theft." This   Court  had  occasion  to  consider  at  length   what commission of theft consists of, in K. N. Mehra v. The State of Rajasthan(1).  It said at p. 630:               "Commission  of theft, therefore, consists  in               (1) moving a movable property of a person  out               of his possession without his consent, (2) the               moving  being  in order to the taking  of  the               property  with a dishonest  intention.   Thus,               (I) the absence of the person’s consent at the               time  of  moving,  and  (2)  the  presence  of               dishonest  intention in so taking and  at  the               time,  are  the essential ingredients  of  the               offence of theft." At p. 631 it said :               "It  is  rightly pointed out  that  since  the               definition  of theft requires that the  moving               of  the  property is to be in  order  to  such               taking,  ’such’  meaning  ’intending  to  take               dishonestly’ the very moving out must be  with               the dishonest intention." After stating the provisions of ss. 23 and 24 of the  Indian Penal Code, this Court said:               "Taking  these  two  definitions  together,  a               person can be said to have dishonest intention               if in taking the property it is his  intention               to  cause  gain,  by unlawful  means,  of  the               property to which the person so gaining is not               legally entitled or to cause loss, by wrongful               means,  of  property to which  the  person  so               losing  is  legally entitled.  It  is  further               clear  from  the definition that the  gain  or               loss   contemplated  need  not  be   a   total               acquisition  or a total deprivation but it  is               enough  if  it  is a  temporary  retention  of               property by the person wrongfully gaining or a               temporary  ’keeping out’ of property from  the               person  legally  entitled.   This  is  clearly               brought  out in illustration (1) to s. 378  of               the Indian Penal Code.... " The  Court  did not express an opinion with respect  to  the submission  that the Penal Code makes a distinction  between



intention  to  cause a particular result  and  knowledge  or likelihood of causing a particular result and that the maxim that  every  person  must be taken  to  intend  the  natural consequence of his act is a (1)  [1957] S.C.R. 623.                             303 legal fiction which is not recognized for penal consequences in the Indian Penal Code. Till the property is moved, no offence of theft can be  com- mitted  even  if the alleged offender had intended  to  take dishonestly the property out of the possession of any  other person  without his consent.  Mere seizure of  cattle  found trespassing  on land does not amount to moving  the  cattle. The act Of moving the cattle would be subsequent to  seizing them.   It  follows therefore that the  seizure  of  cattle, though illegal, cannot amount to the offence of theft. It  is after the seizure of cattle that the  person  seizing them  moves them in order to take them to the  pound.   This act of taking them to the pound is what he is directed to do by the Act, Section 10 specifically directs so.  Of  course, the direction is in regard to the cattle seized for damaging the  land or crop, but the same direction will be deemed  to be  operative  when the cattle are seized in  the  purported exercise of the right to seize them under s. 10 of the  Act, specially  when s. 20 speaks of such seizure as being  under the  Act.  An act done in accordance with the provisions  of the Act cannot be considered, prima facie, to be a dishonest act, and would not justify the conclusion that the taking of the cattle to the pound amounted to the offence of theft. A  person  is said to do a thing dishonestly when’  he  does anything with the intention of causing wrongful gain to  one person  or wrongful loss to another person.  In the case  of illegal  seizures  and  impounding  of  cattle,  the  person seizing the cattle does not gain anything.  He simply  takes the  cattle  to  the pound.  He does not use  them  for  his purpose.   He, in fact, exercises no greater  dominion  over those  cattle than that of being in their custody  on  their journey  to the pound.  It is said that it  causes  wrongful loss  to  the owner of the cattle inasmuch as he  keeps  the owner  out of possession of the cattle as he was  wrongfully deprived;  of the property for the time being, it being  not necessary that the deprivation of property be of a permanent character.  We do not think that in such circumstances,  the owner  of  the  cattle can be said to  be  deprived  of  his property.   The person seizing the cattle can act in  either of these three ways.  He can keep, them himself.  This  may, in certain circumstances, make him guilty of theft.  He  can let  them  loose after taking them out of the  field.   This action will not remove the danger of the cattle  trespassing again on the land.  He can take them to the pound.. 304 In so doing he not only acts as directed by the Act but also in  the  interests  of both himself and  the  owner  of  the cattle.   He avoids the risk of further harm to himself  and protects  the interest of the owner by having the cattle  in safe custody and keeping them from doing any further  damage to anyone’s land or crop.  The owner can get back the cattle from  the  pound  on payment of the  fine  and  expenses  in accordance  with  the  provisions  of S.  15  of  ,the  Act. Whatever  he  would  have  to pay  for  getting  the  cattle released, he can reimburse himself by suitable action  under S.  20  of  the  Act, as the  Magistrate  dealing  with  his complaint  is empowered under S. 22 to order the payment  of fines   and  expenses  paid  by  him  in  addition  to   the compensation for any loss that he suffers.  The owner of the



cattle illegally seized is thus not only reimbursed for  the fine  and expenses which he paid but also for any loss  that he  has suffered on account of illegal seizure.  This  means that  in  the  ultimate analysis the owner  of  the  cattle, seized illegally, suffers no loss and that therefore the act of  illegal  seizure of cattle does not cause  any  wrongful loss to the owner of the cattle.  It follows that the person seizing cattle purporting to act under the provisions of the Act  does  not cause any wrongful loss to the owner  of  the cattle. Even if it be assumed that some sort of loss which is wrong- ful  in  nature  is caused to the owner  of  the  cattle  by illegal  seizure  and impounding them, the  question  arises whether the person seizing the cattle illegally from a field with  the avowed object of taking them to the pound  on  the ground  that  it was damaging the field or the crop  can  be imputed  the intention to take the cattle dishonestly.   The effect of his seizing the cattle illegally may be assumed to cause  wrongful loss to the owner of the cattle, but did  he so  intend?   We are of opinion that he did not  so  intend. His intention at the time, though based on his wrong notions that  he was entitled to seize the cattle, was to take  them to  the  pound  as required by the Act so  that  no  further damage  be  done to the land or property.  It is  true  that intention  is mostly gathered from the consequences  of  the act  committed by the accused but that is so because  it  is not often that the intention with which an act is  committed can  be  definitely known from any previous  fact.   When  a person does a certain act by openly expressing his intention in  committing  the  act  there  seems  no  reason  why  his intention should be gathered by the consequences of his  act except  in  those cases where it is found  that  the  avowed intention was a mere cloak for some other real 305 intention which is then to be determined in the same way  as it is determined in cases of non-expressed intention. In  view of the various considerations mentioned  above,  we are  of  opinion  that when a person seizes  cattle  on  the ground  that they were trespassing on his land  and  causing damage  to  his crop or produce and gives out  that  he  was taking  them  to the pound, he commits no offence  of  theft however  mistaken he may be about his right to that land  or crop.  The remedy of the owner of the cattle so seized is to take action under S. 20 of the Act.  He has no right to  use force to rescue the cattle so seized. We may now briefly consider the cases referred to in support of the contention that illegal seizure of cattle amounts  to theft.   These cases were not of the seizure and  impounding of cattle in, the purported exercise of the powers under  s. 10  of  the Act.  They are: Queen v.  Preonath  Banerjee(1); Wazuddi  v. Rahimuddi(2) ; Abdul Khaliq v. Emperor ( 3  )  ; Paryag  Rai  v.  Arju Mian(4); Queen Empress  v.  Sri  Churn Chungo(5).   In these cases seizure of cattle was  not  made even  ostensibly on account of their causing, damage to  any land or crop.  They were seized and taken away by persons in order  to get their claims against the owners satisfied,  or in  order  to cause them loss otherwise.  Such  seizures  of cattle, was rightly held to amount to ’theft. On the other hand there are cases which held that no offence is  committed  by  a person seizing  cattle  illegally.   In Empress v. Ramjiawan(6) it was held that illegal seizure  of cattle  under the Act was not an offence of  mischief  under the  Penal  Code and, that the, remedy of the owner  of  the cattle  was to be found in the provisions of ss. 20, 21  and 22.



In Dayal v. Emperor(7) persons who had seized cattle from, a pound and impounded them in retaliation of the action of the owners of the cattle in justifiably impounding their  cattle a  day earlier, were held not to have committed the  offence of  mischief  under s. 425 T.P.C. inasmuch  as  driving  the cattle  to  the  pound  did  not in  any  way  lead  to  the diminution in the utility or value of the cattle and not  to have committed the offence of theft as no wrongful loss  was caused  to the owners of cattle even though they would  have had to incur expenses in order to get them released. (1)  5 W.R. 68 (criminal). (3)  A.I.R. 1941 Lah. 221. (5)  I.L.R. 22 Cal. 1017. (2)  (1917) 18 Crl.  L.J. 849. (4)  I.L.R. 22 Cal. 139. (6)  [1881] 1 All.  W.N. 158. (7) A.I.R. 1943 Oudh. 280. 306 We  therefore hold that in the circumstances of  this  case, ’Rattan  and others, appellants, who had seized  the  cattle from the .disputed field committed no offence of theft  even if  they  had  no right to that  field  and  that  therefore Shamnarain Singh and others who went armed with  sharp-edged weapons  and  lathis to rescue the cattle had  no  right  of defence of their property, against Rattan and others. The  learned  Sessions Judge was inclined to the  view  that Shamnarain Singh’s party was the aggressor.  The view cannot be  said  to  be unreasonable even  though  the  prosecution witnesses  did not actually state so.  The circumstances  of the case, however, indicate that normally Shamnarain Singh’s party  would have been the aggressors.  It is they who  were aggrieved   at  the  conduct  of  Rattan  and   others   and deliberately followed those persons in order to rescue their cattle  and therefore would have, in that state  of  temper. started the attack. The  fact that four persons in Rattan’s party received  more injuries  than  five persons in Shamnarain’s party  and  the number  of  serious injuries was also larger on  their  side support this view.  These four persons received 8  punctured wounds and 4 incised wounds out of the total of 26  injuries on them all.  The five persons on Shamnarain’s side received 22  injuries  which included only one punctured  wound,  the only one on Ramdeo deceased, and 4 incised wounds on Sukhari Mahto. Even if Shamnarain Singh’s party were not the aggressors and the attack was started by the party of Rattan, as appears to be the view of the High Court, that would not give any right of private defence of person to Shamnarain’s party as Rattan and  others  could have apprehended, in  the  circumstances, that  Shamnarain’s  party was not  peacefully  inclined  and would  use force against them in order to rescue the  cattle and  that the force likely to be used could  cause  grievous hurt.  We are of opinion that Rattan and others, appellants, committed  no  offence  in causing injuries  to  persons  in Shamnarain’s  party and in causing the death of  Ramdeo  who was  in  that party.  We accordingly allow the  appeal,  set aside the conviction of Rattan Ahir under s. 302 I.P.C.  and of  others under s. 326 I.P.C. and also their conviction  of the  other  offences they were convicted of.  They  will  be released forthwith from custody. Appeal allowed. 307