ORDER
Srinivasa Aiyangar, J.
1. This is a reference made by the District Magistrate of Trichinopoly with regard to a conviction by the Subordinate Magistrate of Karur of one Lakshmann Koundan of Kolathupailayam.
2. The facts found are that he was the owner of a buffalo which was impounded and it is also proved that it was rescued by him after opening a door by shipping the chain over the lock. There can be no doubt that the act amounted to a clear offence under Section 24 of the Cattle Trespass Act. The Sub-Magistrate, however, would appear to have further convicted the accused under Sections 454 and 380 of the Indian Penal Code. I am satisfied that the conviction under both these latter sections was wrong. The District Magistrate in his reference refers to the ruling reported in Weir’s Criminal Rulings, Vol. I at page 716. Though it does appear to be a decision bearing on the point, there was no discussion in that judgment on the question whether if a person, albeit the owner of the cattle impounded, rescued the buffalo from the pound, his removing the buffalo from the possession of the pound authorities with the dishonest intention of either causing loss to the authorities or causing gain to himself with regard to the amount of the fine payable before the ‘cattle could be removed would or would not amount to a theft. There can be no doubt at all that the owner of property can, under certain circumstances, himself commit the offence of theft in respect of such property when the taking or removing is done with the intention of causing wrongful loss to another person or wrongful gain to himself. I have no doubt what ever that the rescuing of the buffalo must have been with such dishonest intention. After the buffalo was impounded it should be deemed to have been in the possession of the authorities of the pound. His removing the buffalo from the pound was removing it from the possession of the authorities and I therefore consider that in addition to an offence under Section 24 of the Cattle Trespass Act it is an offence of simple theft as defined by Section 378 and punishable by Section 379 of the Indian Penal Code. But with regard to the question whether the act amounts to an offence under Section 380, Indian Penal Code, or Section 454, Indian Penal Code, there are not, so far as I am able to see, the necessary findings by the Sub-Magistrate for sustaining a conviction under either of these two sections. For the purpose of Section 380, Indian Penal Code, the place in which the theft is charged to have been committed should be a building, tent or vessel used as a human dwelling or for the custody of property. But as the pound in this case is not likely to have been a tent or vessel, there should have been a finding that it was at any rate a building. If the place was one merely fenced off as an enclosure without any wall or roof it cannot be regarded as a building for purposes of that section. I find in some of the commentaries reference made to cases where thefts of property left in the verandah of a house or over the roof of a house have been held not to amount to theft in a building. It is possible to doubt the correctness of such decisions. But I am satisfied that before a conviction can be sustained under Section 380, there must be a finding that the place in which the theft was committed was a building. There is no such finding in this case and therefore the conviction under that section must be set aside.
3. Similarly as regards the conviction under Section 454, there is no finding in the case that the place where the trespass was committed was a building, tent or vessel within the meaning of Section 442, Indian Penal Code, which defines house-trespass, because to constitute an offence of house-breaking there must be house trespass. If the place where the offence was committed was a building, tent or vessel, then there is in the evidence sufficient to constitute the act of the accused an offence of house-breaking by reason of his entering the passage which the accused knew to have been fastened against such entrance as explained in Clause 6 of Section 445, Indian Penal Code, but in the absence of a finding that the place was a house or building, it follows that the conviction under that section could not be possibly regarded as proper. I have already referred to the difficulty in finding that an open plot of land with a mere boundary fence, even a masonry wall, could, for purposes of either of the said sections, be regarded as a building or a house. The expresssion ‘building,’ more especially having regard to the expressions ‘Tent’ and, Vessel’ that follow, must be regarded as indicating some structure intended for affording some sort of protection to the persons dwelling inside it or for the property placed there for custody. Any structure which does not afford any such protection by itself but merely serves as a fencing or other means of merely preventing ingress or egress cannot make the place a building or a house within the meaning of either of those two sections. Though the facts proved cannot in my judgment constitute an offence under either of the said sections, there may, however, arise a question whether the facts proved would or would not amount to an offence of criminal trespass as defined by Section 441, Indian Penal Code. There is no question in this case with reference to this section of any house or building; but it is only property in possession of another and that requisite is satisfied in this case because the pound was undoubtedly property in possession of the authorities. The purpose for which the accused entered upon the property was not, however, to intimidate, insult or annoy any person in possession, and therefore in order to constitute an offence of criminal trespass the person entering, as in this case the accused, must have entered with the intention of committing an offence. The word ‘offence’ is defined under Section 40, Indian Penal Code, as follows.
Except in the chapter and sections mentioned in Clauses 2 and 3 of this section, the word ‘offence’ denotes a thing made punishable by this Code.
4. viz., the Indian Penal Code. Theft is made punishable by the Penal Code. But for purposes of Section 441, it is provided by Clause 2 of Section 40 that the word ‘offence’ includes a thing punishable under any special or local law when it is punishable under such law with imprisonment for a term of six months or upwards whether with or without fine. Under Section 24 of the ‘Cattle Trespass Act, the imprisonment awardable under that section is six months and therefore it is an act punishable with imprisonment for a term of six months. It seems to me therefore that the acts of the accused constituted also an offence under Section 441 punishable under Section 441, Indian Penal Code.
5. Though on the reference made by the District Magistrate I have deemed it desirable to discuss the matter not only with regard to the sections referred to in the reference but also with regard to other possible sections, I am not sure that in every case it is necessary for the Magistrate to enter upon a minute and learned examination of all possible offences that under the law might be deemed to have been committed by the act of a particular accused more especially if there is no question in the case of a higher punishment than that intended by the Magistrate to be imposed on the accused. In many cases such a process should really be unnecessary. As, however, the reference has been made, the conviction of the accused under Sections 380 and 454, Indian Penal Code, is hereby set aside and the accused is convicted instead under Sections 378 and 441, Indian Penal Code, in addition to his conviction under the Cattle Trespass Act. In respect of his convictions therefore under the said three sections I sentence the accused under Sections 378 and 447, Indian Penal Code, and under Section 24 of the Cattle Trespass Act to the same fine as that imposed 5y the Sub-Magistrate, namely Rs. 20, and to the same term of imprisonment as that imposed by the Sub-Magistrate, viz., till the rising of the Court. I ‘ do not consider this a case in which though I have altered the find. ings of the Sub-Magistrate there can be said to have been by reason of the alteration of the findings any enhancement of the sentence. There is therefore no question of the necessity of any notice to the accused.
