JUDGMENT

Bennett, J. - This is an application in revision against an order passed by the Additional. Sessions Judge of Bahraich on appeal. The applicants were convicted by a Magistrate of offences u/s 147 and Section 325 read with Section 149 of the Indian Penal Code. They were each sentenced to three months' rigorous imprisonment u/s 147 and to six months' rigorous imprisonment u/s 325 read with Section 149, the sentences to run concurrently. They were also bound over u/s 106 of the Code of Criminal Procedure. Two other co-accused were found guilty of the same offences but an order was passed against them u/s 562 of the Code of Criminal Procedure.

2. All six appealed to the Additional Sessions Judge who allowed the appeal of the two men against whom the order had been passed u/s 562. He held as regards the other four men convicted, that is, the four applicants, whose case is now under consideration, that they could not be convicted u/s 147 or 149 because their object had not been unlawful, and they were not therefore members of an unlawful assembly. The Additional Sessions Judge did not find that there were less than five persons concerned nor has this been contended before me. The sole ground upon which the Additional Sessions Judge modified the conviction was that the applicants were not guilty of riot, not having been members of an unlawful assembly. At the same time the Additional Sessions Judge found that two of the applicants, Lachhman Singh and Munua Singh, were guilty u/s 325 and he maintained their conviction and sentence of six months' rigorous imprisonment under this section. The conviction of the other two applicants, Ram Piarey and Lal Bachcha Singh, u/s 325 was set aside and a conviction u/s 323 of the Indian Penal Code was substituted, a sentence of fine being substituted for the sentence of imprisonment. The order u/s 106 of the Code of Criminal Procedure was upheld in respect of all four applicants.

3. It has been contended that on the finding of the Additional Sessions Judge that no offence of riot was committed the convictions of the applicants under Sections 325 and 323 were not justified. In support of his contention the case of Dayal v. Emperor 1943 O.A. 123 : A.W.R. (C.C.) 49 : O.W.N. 202 was cited.

4. If I agreed with the Additional Sessions Judge with regard to the alleged offence of rioting it would be necessary to consider whether the applicants were justified in inflicting injury in the exercise of the right of private defence of property. It appears to me, however, that it is not necessary to examine this question because in my view the Additional Sessions Judge was not justified in holding that the applicants were not guilty of riot. The allegation was that their cattle were grazing in an urd field on the morning in question when the complainants came and drove them away and were taking them to the cattle pound when they were waylaid and assaulted by the applicants and a number of other persons. I have referred to the evidence in the case and I find it clearly stated that the cattle were grazing in the complainant's field of urd and that they were found so grazing and driven away. One of the complainants also stated that they had made frequent complaints about their grazing there before.

5. The Additional Sessions Judge has observed that Section 10 of the Cattle Trespass Act authorises a cultivator or occupier to seize cattle trespassing on such land and doing damage thereto or to any crop or produce thereon and send them or cause them to be sent to the pound. The section therefore lays down that the cattle can be seized only if they are doing damage. There is no evidence in the present case, said the Additional Sessions Judge, that damage was done to the crop, and in the absence of such evidence the complainants were not justified in seizing the cattle in order to take them to the pound. It followed that if the accused rescued the cattle they were not committing an unlawful act.

6. Learned Counsel for