Full Judgment
Dillon, J.
1. This is a reference by the Sessions Judge of Saharanpur recommending that the conviction and sentence passed upon one Mehdi Hasan under Section 426, Indian Penal Code, be set aside. Syed Mehdi Hasan was prosecuted before a Magistrate of the first class, Saharanpur, under Section 167 of the Municipalities Act No. I of 1900. That section punishes the wilfully letting loose any horse or other animal so as to cause, or negligently allowing any horse or other animal to cause injury, danger, alarm or annoyance to any person, or suffering any ferocious dog to be at large without a muzzle. The facts of this case are these: On the morning of October 13th, 1906, a number of cattle including Bramini bulls, cows and calves, were found straying in the Government garden. They had done a considerable amount of damage and were sent to the pound. They were the property of Mehdi Hasan, or at all events the cows and calves were his property. It is clear that this was not the first time that these cattle were found trespassing in the garden. Mehdi Hasan admits this, but pleads that the fault lay with his servant. The prosecution, which had been started with the sanction of the Chairman of the Municipal Board, ended in a conviction under Section 426, Indian Penal Code, and a fine of Rs. 25. On the record being received in this Court notice was issued to Mehdi Hasan to show cause why his conviction under Section 426 should not be altered to one under Section 167 of Act No. I of 1900. In my opinion there can be no doubt that the conviction under Section 426, Indian Penal Code, is bad. From the provisions of Section 425, Indian Penal Code, which defines mischief, it is clear that there must be an intention to cause wrongful loss or damage. There is no evidence in this case that Mehdi Hasan caused the cattle to go into the garden at all much less that such was his intention. Following the rulings in Major Forbes v. Grish Chunder Bhuttacharjee (1870) 14 W.R., 31 and Empress v. Bai Baya (1883) I.L.R., Bom., 126 I set aside the conviction and sentence of Mehdi Hasan under Section 426, Indian Penal Code. The fine, if paid will be refunded. I have now to deal with the rule which was issued to Mehdi Hasan by this Court on the 19th of April 1907 calling upon him to show cause why his conviction should not be altered to one under Section 167 of Act No. I of 1900. I am clearly of opinion that that section is even less applicable to the facts of this case than Section 426. That section deals with offences against the person and has nothing to do with offences against property. This is clear from the section itself. Were any authority needed I would refer to King Emperor v. Patan Din Weekly Notes, 1905, p. 1-9 as exactly in point. The rule is discharged.