1. This is a reference by the Additional Sessions Judge of Benares at Jaunpur, by which he recommends that the conviction of Mahadeo Agrahari, Bechan Agrahari, Dargahi Chamar and Sukhram Chamar be sat aside. The facts seem to be that a complaint was filed against five persons, that is to say, the four persons mentioned above and one Mahabir under Sections 447 and 352, Penal Code. The trying Magistrate acquitted Mahabir, convicted Mabadeo and Bechan under Sections 352 and 447, Penal Code, and Dargahi and Sukhram under Section 447, Penal Code, alone. On appeal the learned Magistrate of the First Class, with appellate powers set aside the conviction of. Mahadeo and Bechan under Section 352, Penal Code, but maintained their conviction and the conviction of Dargahi and Sukhram under Section 447, Penal Code. The sentence was a small sentence of fine. The learned Sessions Judge is of the opinion that the conviction is illegal. The first ground mentioned by the learned Judge is that the trial Court had once dismissed the complaint under Section 247, Criminal P.C.,
and as the dismissal amounted to an acquittal the trial Court had no power to revive the case without a reference to the Hon'ble High Court.
2. It appears that the case was dismissed on 1st August 1933, by the Tahsildar Magistrate on the ground that on that date neither the complainant nor the accused were present. It is argued by learned Counsel on behalf of the accused that the dismissal must be deemed to be a dismissal under Section 247, Criminal P.C., and such a dismissal amounted to an acquittal. It has however come to light that the case before the Magistrate was not fixed for 1st August 1933, but for 2nd August; 1933, and it was only by a clerical error that the order sheet stated that the case was to be heard on 1st August 1933. The Court had fixed 2nd August 1933, the parties had been informed that the case was fixed for 2nd August 1933, and perhaps the reader, misunderstanding the order of the Court, put down in the order sheet that the case will be heard on 1st August 1933. This mistake was repeated on 1st August 1933, when the case was called on and dismissed in the absence of the complainant. The parties attended the Court on 2nd August 1933, and the complainant learnt with surprise that the case had been taken up a day before and dismissed. The matter was represented to the trial Magistrate and ha after investigation and inquiry even from the counsel for the accused decided that a mistake had been committed and that the dismissal was made under a wrong impression. He therefore ordered on 2nd August 1933, that the case should proceed and that the order of 1st August 1933, be ignored. I think there is nothing illegal in the procedure adopted by the Magistrate. The case was not fixed for 1st August 1933, and the parties were not bound to appear on that date. If the Magistrate under a mistake took up the case on a day for which it was not fixed and dismissed the complaint, then the dismissal of the complaint cannot be said to be one under Section 247, Criminal P.C. The words of the section provide for the dismissal of a complaint in the absence of the complainant on the day for the appearance of the accused, and in order to bring into play the consequences mentioned in Section 247, Criminal P.C., the complainant should be absent on that day. As held by the Calcutta High Court in the case of Achambit Nandal v. Mahtab Singh 1915 Cal. 119, the order of the Magistrate dated 1st August 1933, was a mere nullity. The facts of the case in Emperor v. Dulla 1923 All. 360, were entirely different and the decision in that case simply amounts to this that where a complaint has been dismissed in effect under Section 247, Criminal P.C., then a subsequent trial on a fresh complaint is barred inasmuch as the dismissal amounts to an acquittal. To my mind there is no force in this objection taken by the accused.
3. The next point to which reference has been made by the learned Judge is that when the parties appeared before the Court on 15th August 1933, the accused applied that the matter had been compromised and the learned Magistrate ought to have enquired into the allegations contained in the application. The explanation given by the trying Magistrate and the appellate Magistrate and the original order of the trial Magistrate clearly show that the Tahsildar Magistrate did conduct an inquiry into the matter which appeared to he sufficient to him. It is not possible for any Court to lay down any hard and fast rule as to what the nature and the quantum; of the inquiry should be. The inquiry should be such as would enable a Court to decide upon the allegation of the compromise. In the present case the Tahsildar Magistrate came to the conclusion that the parties had not compromised the matter and it is not possible for a superior tribunal to say that the inquiry made by the Magistrate was inadequate in law.
4. The third objection raised by the accused and accepted by the learned Sessions Judge is that the complaint was not made by the proper person and in support of this, reliance has been placed on the case of Moti Lal v. Emperor 1925 All. 540. The facts appear to be that the complainant was the person entitled to the possession of the plots under a mortgage which was subsisting, but he had let out the plots to certain sub-tenants. It is said that if the subtenants were ejected, say wrongly, by the accused, then it is the sub-tenants alone who could have filed a complaint and the complainant, the person entitled under the mortgage to the possession of the plots in question had no right to file a complaint and the conviction following on such a complaint is illegal. The case to which reference has been made does not lay down any such proposition of law, and indeed a Magistrate is entitled to take cognizance of a case, like this, upon a complaint made by anybody, but it must be proved to the satisfaction of the Court that the object of the accused was to insult, intimidate or annoy the person in possession* If the intention was to insult, intimidate or annoy a person who is not in possession of the property then the essential, ingredient of criminal trespass would be lacking. In Moti Lal v. Emperor 1925 All. 540, the house in connexion with which trespass was committed was absolutely vacant and in the present case the plots in dispute over which the accused entered into possession, were in the occupation of sub-tenants.
5. The fourth contention was that to constitute an offence under Section 447, Penal Code, an intention to annoy, insult or intimidate must be proved by the prosecution and in this case there was no finding that the accused took possession with intent to insult, annoy, or intimidate. The law has not been fully stated in this contention. It omits to state that when al person commits trespass for the purpose of committing an offence even then he would be guilty under Section 447, Penal Code. An intention to annoy, insult or intimidate may be proved by direct evidence and may be inferred by circumstances. Now, in the present case the complainant had obtained as mortgagee possession over the property by virtue of a mortgage executed by the elder brother of Sahadeo, the accused, and by the mother of Mahadeo during the minority of Mahadeo. He had remained in possession of the property for a number of years when the accused Mahadeo suddenly took it into his head to grab the property without bringing a suit for the avoidance of the mortgage in a Court of law. It is said that he trespassed on the land not with any intention to annoy, insult or intimidate, but in the bona fide assertion of his title. It is impossible for any Court to hold that the assertion made by the accused was in good faith. The Court below has distinctly held that the action of the accused was palpably highhanded. This is a finding from which an inference to insult, annoy or intimidate might be inferred. Further according to the lower appellate Court, it was proved that there was a threat of bodily injury. I am in entire agreement with the cases cited before me by learned Counsel for the accused and which have decided that the intention of the accused must be present before a conviction under Section 447, Penal Code, can follow. The mere fact that an accused might have the knowledge that his act would annoy, insult or intimidate the person in possession would not be sufficient, but at the same time the intention might be proved by circumstances, and in the present case the circumstances point indubitably to an intention to commit an offence or to insult, intimidate or annoy and they are not consistent with a bona fide assertion of title.
6. The fifth objection relates to an order passed under Section 522, Criminal P.C. The learned Sessions Judge is of the opinion that when the lower appellate Court acquitted the accused of the offence under Section 352, Penal Code, an order restoring possession to the complainant was not justified under Section 522, Criminal P.C., inasmuch as the conviction of the accused was not under an offence attended by criminal force or show of force or by criminal intimidation. The mere fact that the accused were acquitted of assault and convicted only under Section 447, Penal Code, does not mean that no criminal force or show of criminal force or criminal intimidation was present in the conduct of the accused. The appellate Magistrate says in his explanation that the action of the accused was palpably high-banded and that there was threat of bodily injury and that he had held in agreement with the Tahsildar that the dispossession of the batai-holders as well as the mortgagee's heirs had been by show of force. There is therefore no flaw in the order under Section 522, Criminal P.C. Finally, the learned Sessions Judge was of the opinion that the accused Dargahi and Sukhram were mere labourers and it cannot be said by any stretch of imagination that they entered into the fields with the intention of insulting or annoying the complainant. With this objection I agree. The labourers were asked by Mahadeo and Bechan to sow the fields and in the absence of any evidence it cannot be said that they were aware of the true state of affairs and having entered into a conspiracy with Mahadeo had made an attempt to further the cause of Mahadeo. They were labourers and were at the call of any one who chose to pay them. They could not therefore be convicted under Section 447, Penal Code.
7. The result of what I have stated above is that I accept the recommendation of the learned Sessions Judge so far as Dargahi and Sukhram are concerned, set aside their conviction under Section 447, Penal Code, and direct that the fine or any portion of it, if paid by them, be refunded, I refuse to accept the recommendation in the case of Mahadeo and Bechan, their conviction and the sentences will stand. Let the record be returned.