JUDGMENT : Barman, J. - This revision is directed against the judgment of the Assistant Sessions Judge, Mayurbhanj, dismissing an appeal against the judgment of the Magistrate, 3rd Class, Udala, finding the Petitioners guilty u/s 379 of the Indian Penal Code and convicting them thereunder and sentencing them to a fine of Rs. 30/- each in default to twenty days rigorous imprisonment each. 2. The material facts are these: On July 6, 1956, the Petitioners were alleged to have snatched away the bullocks which Were engaged in ploughing the land of the complainant (P.W. 1) and it was alleged that the Petitioners took them to the pound. The Petitioners were charged u/s 379 I.P.C. They pleaded not guilty to the charge. They, however, admitted that they took the cattle to the pound but asserted that as the cattle had damaged their crops they did so. 3. It appears from evidence that the complainant (P.W. 1) had admitted that the land in question, on which the 'cattle were alleged to have trespassed, was not under his cultivation in 1955. In fact, the land in question was given by him to P.Ws. 6 and 7 a Sanja tenants for the period from 13th April, 1955 to 12th. April, 1956. Therefore, on- the date of the incident, namely, July 6, 1956, the Sanja tenancy of P.Ws. 6 and 1 had presumably expired. The complainant (P.W. 1) further stated that he had already given notice to the Collector to evict the tenants under the Orissa Tenants Relief Act, 1955. P.Ws. 6 and 7 in their evidence stated that in 1955 when their Sanja tenancy was still subsisting, they had sublet the land in their possession to the respective fathers of the accused Petitioners, Lalmohan Singh and Purushottam Singh. In this context, the evidence of P.W. 1 and P.W. 2 was relevant. They both said that the accused-Petitioners were in possession of the land in question in the previous year. 4. Both the learned Magistrate and also the learned Assistant Session Judge in appeal, considered the matter from only one aspect, namely, as to who \Vas in possession of the disputed land and who raised paddy on it, for determination of the question whether the accused Petitioners had any right to impound the cattle.. 4. Both the learned Magistrate and also the learned Assistant Session Judge in appeal, considered the matter from only one aspect, namely, as to who \Vas in possession of the disputed land and who raised paddy on it, for determination of the question whether the accused Petitioners had any right to impound the cattle.. In course of the trial before the learned Magistrate it was argued on behalf of the defence that the Case fell u/s 22 of the Cattle Trespass Act and not u/s 379 I.P.C. The learned Magistrate, however, did not agree with the defence case on the point. The appeal before the learned Assistant Sessions Judge was heard exparte as the pleader for the accused Petitioners could not be found and the accused-Petitioners themselves were also absent on the date of hearing. The argument on the Cattle Trespass Act does not appear to have been considered by the Learned Assistant Sessions Judge because there is no mention of this aspect of the defence case in the judgment of the learned Asst. Sessions Judge. 5. In the, present application for revision, the main contention of the Petitioners was that this was a matter under the Cattle Trespass Act are not an offence under the Indian Penal Code. It was contended on behalf of the Petitioners that no wrongful loss was caused to the complainant with respect to the cattle that was removed by t e Petitioners, inasmuch as the complainant was only put to pecuniary loss in releasing the cattle but no loss of the cattle itself. In this connection, I should like to refer to an old decision of the Calcutta High Court Aradhum Mundul V. Mayan Khan Takadgeer and Anr. (1875) 24 W.R. 7 Glover and Romesh Chunder Mitter JJ. in that case the accused illegally seized cattle, while grazing on fallow land, and, instead of taking them to the nearest pound, drove them 12 or 14 miles to a pound in the next district. The lower court charged the accused with theft u/s 379 I.P.C., dishonest removal of property and criminal breach of trust under the Indian Penal Code. The lower court convicted the accused u/s 379 I.P.C. and sentenced the accused to various terms of rigorous imprisonment. The lower court charged the accused with theft u/s 379 I.P.C., dishonest removal of property and criminal breach of trust under the Indian Penal Code. The lower court convicted the accused u/s 379 I.P.C. and sentenced the accused to various terms of rigorous imprisonment. On reference made to the High Court, Glover J. while giving opinion that the conviction by the learned Magistrate was Illegal and should be quashed, observed as follows: To Commit theft, a man must take 'dishonestly' and a dishonest taking Is by Section 24, Penal Code one which is done with the intention of causing wrongful gain to one person or wrongful loss to another. There is no question here as to the wrongful gain, but the Joint Magistrate considers that wrongful loss was intended, because the pounding of the cattle was effected with "the malicious Intent of subjecting the owners to addition expenses, inconvenience and annoyance". The two last would not in any case come within the definition, nor was the "additional expenses", supposing it to have been Incurred, a wrongful loss within the meaning of the section to the owners of the cattle. That loss refers to the thing, dishonestly taken, which, in this case, would mean the animals themselves; and it was not contended that the owners were in any way deprived of them, except temporarily whilst they remained in the pound the last words of the clause referred to (Section 28) "to which the person losing It Is legally entitled", show clearly what is meant by the words "wrongful loss" as applied to the owners of the cattle This decision was followed by other High Court in India. 1 should only mention a decision of the Oudh High Court. AIR 1943 280 (Oudh) . (Ghulam. Hasan, J.) In that case the High Court held - that illegal seizure of cattle and,taking them to the pound does not amount to the offence of theft because the essential element of taking property dishonestly as contemplated by Section 378 I.P.C. is lacking. 6. Therefore, the complainant had his remedy under Sections 20,21 and 22 of the Cattle Trespass Act (Act I of 1871). There can be no question of any criminal trespass in the present case. I do not agree that the Petitioners were guilty of the offence of theft. 6. Therefore, the complainant had his remedy under Sections 20,21 and 22 of the Cattle Trespass Act (Act I of 1871). There can be no question of any criminal trespass in the present case. I do not agree that the Petitioners were guilty of the offence of theft. The essential element of taking property dishonestly as contemplated by Section 378 I.P.C. is lacking In this case. Section 24 I.P.C. says that who ever does anything with the intention of causing wrongful gain to one person or wrongful loss to another person is said to do that thing dishonestly. Obviously, there was no wrongful gain to the Petitioners nor can it be said that wrongfulness was caused to the owners of the cattle even though they had to incur expenses in order to get the cattle released. So, the complainant should have taken steps u/s 22 of the Cattle Trespass Act. 7. Moreover, on the facts of the case, I am satisfied that the removal of the cattle was under a bona fide claim of right. The Petitioners Purushottam and Lalmohan were respectively sons of the subtenants under P.Ws. 6 arid 7 who were admittedly in possession of the land in question from April 1956 as Sanja tenants under the complainant (P.W. 1). The incident having occurred only within a few months after the expiry of the' Sanja tenancy, it was quite possible that the Petitioners went on the land and removed the cattle under a bona fide belief that their respective fathers have stilt a right to the land as sub tenants. This view finds support in a decision of this High Court. Shiba-Charan Naik and Anr. v. State 21 C.L.T. 74 (Panigragrahi C.J), where on almost similar circumstances the Petitioners were given the benefit of doubt and the revision -was allowed and their conviction and sentence set aside. 8. It is quite clear from records that the accused Petitioners did not even appear and press their case under the Cattle Trespass Act before the lower appellate court who had to decide the matter exparte. If this aspect of the case Was pointed out to the learned Assistant Sessions Judge, he would have possibly taken a different view. 9. I, therefore, allow this revision and set aside the conviction and sentence of the Petitioners. Revision allowed Final Result : Allowed