(1) This a revision application challenging the correctness of the order passed by the learned Sessions Judge, Amravati. Setting aside the order passed by the Magistrate First Class, Amravati, purporting to be under S. 249, Cr. P. C., stopping the proceedings started by the police on a complaint against the applicant under S. 447, I.P.C. for criminal trespass.
(2) The learned Magistrate first class, Amravati, issued process and without following the procedure for the trial of summons cases contained in Ss. 241 to 245, Cr.P.C. he passed an order under S. 249, Cr. P. C., holding that he did not think that any case under S. 447, I. P. C., can be said to be made out even prima facie. the order passwed by him is as follows:
'The case is perused. the dispute is obviously about possession. The perusal of the documents particularly te receipts show that there was no lease of the land as such, and that the right to take away the grass only was granted. Therefore the mention in the Patwari papers to the effect that the complainnt is a lessee does not appear to conform with the receipts.
In such circumstances, I do not think any case under S. 447 I.P.C. can be said to be made out even prima facie.
The accused is therefore discharged and the case filed under S. 249 Cr. P. C. File.'
(3) The complainant then went in revision and the learned Sessions Judge set aside the order of the learned Magistrate holding that the Magistrate cannot pass an order under s. 249 without following the procedure of trial under Ss. 241 to 245 (Chapter XX), Cr.P.C. He also held that the provisions of S. 249 have to be resorted to in exceptional cases and where there are special circumstances justifying such an order. He also found fault with the order of the Magistrate in discharging the accused. According to the learned Sessions Judge, such an order in not at all warranted by the wording of S. 249, Cr. P. C. The learned sessions Judge also observed that if the learned Magistrate was of the view that no offence under S. 447 I.P.C., was even prima facie proved, the learned Magistrate should have followed the proper procedure under S. 242 to 244 and acquitted the accused but that he was not justified in passing an order under S. 249, Cr.P.C. The learned Sessions Judge, therefore, passed an order under s. 436, Cr. P.C., setting aside the order of the learned Magistrate, and he directed further enquiry into the complaint.
(4) In this revision application the learned counsel for the applicant the accused challenges the order passed by the learned Sessions Judge on the ground that the receipts filed with the challan show that no offence of criminal trespass has been committed and the magistrate was therefore perfectly justified in acting under S. 249, Cr.P.C. He further urged that the criminal intent necessry under S. 447, I.P.C., was absent. One of the grounds in the petition, namely that the learned Sessions Judge could not act under s. 436, Cr.P.C., in a case like this, was not argued by the learned counsel for the applicant.
(5) A complaint under s. 447, I. P. C. is triable under Chapter XX, Cr.P.C., as a summons case, Ss. accusation should be stated to the accused and if the accused admits the truth of the accusation, he may be convicted but if he does not admit the truth of the accusation, the Magistrate should proceed to take the evidence of the complainant and the other witnesses. After taking the evidence and examining the accused, the Magistrate may either acquit or convict the accused. S. 247 lays down the procedure when the complainant does not appear on the day appointed. S. 248 states the circumstances in which a complaint can be withdrawn. S. 249 reads thus:
'In any case instituted otherwise than upon complaint a Presidency Magistrate, a Magistrate of the first class, or with the previous sanction of the District Magistrate, any other Magistrate, may for reasons to be recorded by him, stop the proceedings at any stage without pronouncing any judgment either of acquittal or conviction, and may thereupon release the accused'.
(6) The learned Sessions Judge is no doubt right in observing that S. 249 should be resorted to only in sxceptional cases and where there are special circumstances justifying such an order, but his view that S, 249 can be applied only after the Magistrate has followed the procedure contained in Ss. 242 to 244 cannot be supported, because S. 249 itself provides that it can be applied at any stage of the proceedings.
(7) The learned Magistrate has acted under S. 249 for the reasons stated by him, namely that no prima facie case under S, 447, I.P.C., can be said to be made out because the receipts show that there was no lease of the land as such, that the right to take away the grass obly was granted, and that the mention in the Patwari papers to the effect that the complainant is a lessee does not conform with the receipts. The case of the complainant was that he was a tenant of the master of the acused and that while he was in possession of the field as a tenant, the accused came with bullocks and ploughs and ploughed the field while the complainant was absent from the field. In the opinion of the learned Magistrate, the receipts show that there was no lease of the land as such but only a right to take away grass, the the mention in the Patwari papers to the effect that the complainant is a lessee does not appear to be correct., It is, however, contended by Mr. Abhayankar for the state that an opportunity should have been given to the complainant to show that the entry in the Patwari papers, which is ordinarily presumed to be correct, is correct and that the receipts are not rrue. Mr. Abhyankar also relies on s. 251-A(2), Cr. P. C. wherein it is provided that after giving the prosecution and the accused an opportunity of being heard, the Magistrate may discharge the accused if he considers the charge to be groundless. It is, therefore, contended by Mr. Abhyankar that a similar opportunity should have been given to the complainant by the learned Magistrate before passing an order under S. 249, Cr. P. C. We cannot read the words in S. 251-A(2) into S. 249. The learned Magistrate has passed an order under S. 249, and if the order is justified it should not have been set aside. The reason given by the learned Magistrate is that nocase under S. 447, I.P.C. has been made out even prima facie. If no case has been made out under S. 447 even prima facie the learned Magistrate would be perfectly justifield in stopping the proceedings. As observed by the learned Magistrate, the case relates to a dispute about possession between the owner of a field and a person who claims to be his tenant. The owner appears to ave taken possession of his own land in the absence of the person who claims to be in possession as tenant.As held by their Lordships of the Privy Council in Sinnasamy v. The king, 52 CrI LJ 173.
'entry upon land, made under bona fide claim of right, however ill-founded in law the claim may be, does not become criminal merely because a foreseen consequence of the entry is annoyance to the occupant. to establish criminal trespass the prosecution must prove that the real or dominant intent of the entry was to commit an offence or to insult intimidate or annoy the occupant, and that any claim of right was mere cloak to cover the real intent, or at any rate constituted no more than a subsidiary intent.'
As this is a dispute betwween the owner and another person, who claims to be his tenant, it is obvipous that the intent of the landlord can at the most be selfish but it cannot be said to be criminal. The trespass may b civil but not criminal. The dominant intention of the landlord must have been to take possession of the field for his own pecuniary advantage and not to insult, intimidate or annoy the complainant. In such a case, therefore, the accused cannot be convicted particularly because, admittedly receipts show only a right to take grass from the field. Even assuming that the entry in the Patward papers is correct and that the receipts do not represent the true state of affairs, it is not a case of criminal intetion, and unless criminal intention is proved, the accused cannot be convicted under S. 447, I.P.C. A person who does an act without the criminal intent required to constitute an offence should not be harassed by a criminal trial. The learned Magistrate was therefore right and perfectly justified in stopping the proceedings under S. 249, Cr. P. C. No. doubt, S. 249 Cr. P. C., provides that the Magistrate may release the accused. The word 'discharge' is not used in S. 249 but is used in the Chapter relating to the trial of warrant cases. The word 'discharge' is not used in the Chapter relating to summons cases becaue in summons cases a charge is not framed. The use of the word 'discharge' by the learned Magistrate in his order, therefore, merely amounts to a release of the accused and stopping the proceedings without a conviction or an acquittal.
(8) I, therefore, allow the application for revision, set aside the order of the learned Sessions Judge and rstore that of the Magistrate passed underS. 249, Cr. P. C.
(9) Application allowed.