1. This reference raises a shot; question which may be stated as follows. Can a person against whom charge is framed under sections 426 and 370, I.P.C. be convicted under Section 447, I.P.C?
2. Felirani filed a complaint against Kanhaiyalal stating that on 10.2.1949 the accused dismantled the hut of the complainant and took possession of the material and that he was. laying a foundation of a new house. The learned sub-divisional Magistrate Pohari framed a charge under Sections 426 and 379, I.P.C. He, however, acquitted him of both the offences under Sections 426 and 379. I.P.C. and holding. that his act amounts to trespass, convicted him under Section 447, I.P.C. and sentenced him to a fine of Rs. 50/-. The accused filed a petition in revision before the Sessions Judge who has made this reference under Section 438, Criminal Procedure Code.
3. Mr. Inamdar, who appeared on behalf of the complainant, contended that the facts mentioned in the charge were that the accused dismantled the hut with intent to cause wrongful joss to the complainant rind took possession of the material without obtaining complainant's permission. These facts also go to constitute in offence under Section 441, I.P.C. hence under Section 233, Criminal Procedure Code, conviction of the accused under Section 441 cannot be said to be bad.
4. Section 238 reads as follows:
(1)When a person is charged with an offence consisting of several particulars, a combination of some only of which constitutes a complete minor offence, and such combination is proved, but the remaining particulars are not proved, lie may be convicted of the minor offence, though he was not charged with it.
(2) When a person is charged with an offence and facts are proved which reduce it to a minor offence, he may be convicted of the minor offence, although he is not charged with it etc.
Clause (1) of Section 238 does not apply to this case. The only question for consideration is whether Clause (2) is applicable or not. The general principle which is laid down in a number of cases is that the major offence and the minor offence must be cognate offences. In Makhhan v. Emperor Malik J., observed as follows:
The gravity of the offence must depend upon the severity of the punishment that can be inflicted but the major and the minor offences must be cognate offences which have the main ingredients in common, and man charged with one offence which is entirely of a different type from the offence which he is proved to have committed, cannot in the absence of proper charge be convicted of that offence merely on the ground that the facts proved constitute a minor offence Vide Makkhan v. Emperor AIR (32) 1945 All 81 at P. 85).
A person charged with dacoit or house break-ring by night cannot be convicted of dishonestly receiving the stolen property because none of the particulars which go to make up the offence of dacoit or house breaking constitute by themselves the offence of receiving stolen property. Vide Achpal v. Emperor 89 Ind Cas 440. On the same principle a person charged with dacoity and riot cannot be convicted for house trespass, the latter offence not being the part of the former Vide The Queen v. Salamut Ali 23 WR Cr 59; Mehersheikh v. Emperor AIR (13) 1931 Cal 414. From these decisions it is clear that where two offences involve different elements and different questions of facts one offence cannot be said to be minor to the other.
5. The elements of mischief are that there should be destruction of some property and that the accused did it intending or knowing that he was likely to cause wrongful loss or damage to any person. The ingredients of the criminal trespass on the other hand are first entry upon the property in possession of another and second such an entry is done with intent either to commit an offence or to intimidate, insult or annoy the person in possession of the property. These ingredients, therefore, are completely different from each other and hence if a person is charged with mischief he cannot be convicted for criminal trespass because the accused would be prejudiced in making his defence. The arguments put forward by the learned Counsel for the complainant therefore cannot be accepted.
6. I, therefore, allow the reference and set aside the order of conviction and sentence passed by the trial Court. As the case appears to be of a civil nature it is not necessary to order a vitriol. Fine, if paid, shall be refunded to the accused.