1. The applicant Dhananjoy Dhara was convicted by a Deputy Magistrate, First Class, of Krishnagar under Section 447, I. P. C, and sentenced to pay a fine of Rs. 200 or, in default, to undergo rigorous imprisonment for 20 days. It was also ordered that out of the fine, if paid, the local Municipality through the complainant who was the Chairman of the Santipur Municipality should receive Rs. 50 as compensation. Against his conviction Dhanan Dhara appealed to the Sessions Judge of Nadia. As regards the facts of the case the learned Sessions Judge was in agreement with the Deputy Magistrate but he came to the conclusion that the conviction ought to be under Section 448, I. P. C, and not under Section 447 and he ordered accordingly; that is to say, he dismissed the appeal with the modification that the conviction was to be under Section 448 and he maintained the sentence which he considered was quite fit and proper for the ends of justice. The facts of the case, briefly stated, are as follows. There is a very old ferry known as Santipur or Guptipara or Satgachi ferry serving to cross the river Bhagirathi between Guptipara on the Hoogly side of the river and Santipur on the Nadia side. In the year 1928 the management of this ferry was transferred under Government orders to the Municipality of Santipur with a direction that the income derived from such ferry should be divided between the Municipality of Santipur and the District Board of Hoogly. From that time onwards the Chairman of the Municipality of Santipur has leased out the ferry year by year to the highest bidder at public auction and in the year 1933 it was leased out at the usual auction to a man named Panchu Gopal Dhani who acquired the ferry rights for a period of one year for a sum of Rs. 1,300. This man had been in possession of the ferry by plying it for hire between the two points I have mentioned and collecting tolls from the passengers, carts and so on. He had also erected a hut on the Hoogly side of the river.
2. It appears that on 19th April 1933 the present applicant Dhananjoy Dhara made an attack on Panchu Gopal Dhani the lessee of the ferry, drove him away and then forcibly occupied and took possession of the ferry boat and with the help of Manjhis plied between the two sides of the river, collected tolls from persons whom ho carried across the river for a period of nine days. He even set at defiance the municipal peon who came to him for the purpose of getting possession of the moneys which Dhananjoy Dhara had collected. The reason for Dhananjoy Dhara's action, according to his version of the matter, was that his mother-in-law, a woman named Sukeshi Dasi had purchased the proprietary right in a char named Sultanpur at a revenue sale. This char 8ul-tanpur was on the Nadia side of the river and Dhananjoy Dhara claimed that in exercise of the right to the char the ferry became his on the ground that the ferry landing place or ghat on the Santipur side of the river was situated in char Sultanpur. The lessee of the ferry, Panchu Gopal Dhani, who had been treated in the manner 1 have narrated and the municipal peon lodged a complaint with the Chairman of the Santipur Municipality as a result of which the Chairman caused the present ease to be instituted. The defence set up was that the case had been concocted for the purpose of forcing the owners of the landing ghat to part with their right, title and interest therein. At the trial it was also suggested on behalf of the defence that the Nadia Court had no jurisdiction as the occurrence had really taken place on the Hooghly side of the river, that is to say at Satgachia. The learned Sessions Judge in his judgment said:
The only points for determination in this appeal are whether the accused assaulted and abused the complainant, ferry man and criminally trespassed into his ferry boat with intent to commit an offence or to intimidate or insult or annoy any person in possession thereof and whether the accused did so in exercise of any bona fide claim of right to the property.
3. Now, with regard to the facts both the Courts came to the conclusion that they were substantially as the prosecution averred. As regards the question of jurisdiction the learned Sessions Judge said:
The evidence of the prosecution witnesses clearly shows that though the occurrence began at Guptipara side (that is to say at Satgachia) it culminated at Santipur side where the complainant was pushed down from the boat and the ferry boat was taken possession of by the accused who plied it, with the help of manjhis for about nine days and collected tolls etc.
and he accordingly and no doubt rightly came to the conclusion that the Magistrate of Krishnagar had ample jurisdiction to try the case. With regard to the question of bona fide claim of right the learned Sessions Judge pointed out that the accused had never laid any claim to the ownership of the boat or the ferry which was an incorporeal right quite independent of and separate from the right to the soil. The learned Sessions Judge summed up his finding in these words:
In these circumstances I hold that the accused criminally trespassed into the ferry boat of the complainant with intent to commit an offence to intimidate or annoy the person In possession thereof.
4. He then proceeded to discuss the question whether the conviction under Section 447, I. P. C, was right. As to that he said this:
As to Section 447, I. P. C. under which the accused appears to have been convicted, it is argued that the word 'property' in Section 441, I. P. C., means only immoveable corporeal property and does not include vessel as held by the trying Magistrate. There is much force in the above argument for Mayne also holds that this Section 441, I. P. C., does not appear to include any cases of trespass to moveable property.
5. The passage in Mayne's Criminal Law of India to which the learned Sessions Judge referred is to be found at p. 741, Edn. 4. The passage reads as follows:
This section' the learned author was referring to Section 447, 'does not appear to include any cases of trespass to moveable property. The language is inconsistent with such a construction, particularly the words having lawfully entered into or upon such property, unlawfully remains there.
6. Now, Section 441, I. P. C, reads as follows:
Whoever enters into or upon property in the possession of another with intent to commit an offence or to intimidate, insult or annoy any person in possession of such property, or, having lawfully entered into or upon such property, unlawfully remains there with intent thereby to intimidate, insult or annoy any such person, or with intent to commit an offence, is said to commit criminal trespass.
7. It is upon the language of the second part of the section that the learned commentator suggested, it seems to me he did no more than suggest, that this section did not apply to a case of trespass to moveable property. It is a little difficult to see how that view was arrived at except possibly upon the basis of the suggestion thrown out by Mr. Basu (who appeared to show cause against this rule) to the effect thai it had not been contemplated at the time, this treatise was written that there would be such a variety of moveable property as we find in use in modern times susceptible of being entered into or upon. I invited Mr. Mukherjee who appeared in support of this rule to cite to me any authority or judicial decision having the effect of putting upon the word 'property' as used in Section 441 the narrow interpretation suggested in Mayne's book. He was quite unable to produce anything of the kind. I have no doubt that the reason is that it has never been seriously argued in a Court of law that the word 'property' is not sufficiently wide to cover any kind of property either moveable or immoveable into or upon which it is possible for a person to enter with an intent of the description mentioned in Section 441. It seems to me quite obvious that it is reasonable to hold, for example, that there could be a criminal trespass within the meaning of Section 447 to a motor car, an aeroplane and certainly to a boat. The learned Sessions Judge having accepted what is obviously no more than a speculation on the part of Mr. Mayne and clearly being of opinion that the accused ought to be convicted of some offence, then proceeded to convict him under the provisions of Section 448, I. P. C, which is the operative section, if I may so describe it, for the offence described in Section 442. Section 442 says:
Whoever commits criminal trespass by entering into or remaining in any building, tent or vessel used as a human dwelling, or any building used as a place for worship or as a place for the custody of property, is said to commit house trespass.
8. The learned Sessions Judge seems to have thought that the ferry boat in question was a 'vessel' within the meaning of Section 442, I. P. C. No evidence whatever was given to show that this particular boat was ever used as a human dwelling or even that anyone ever slept upon it. It is to be observed that the offence described in Section 442, I. P. C, is more serious than that described in Section 441. It is indeed, an aggravation of the offence described in Section 441 for the obvious reason that there is likely to be a greater degree of annoyance and inconvenience involved by the invasion of the amenities or privacy of persons dwelling in any building, or tent or vessel of the kind contemplated by Section 442. As this offence is more serious than the offence under Section 441 in, my opinion it was not open to the. Learned Sessions Judge in any event to make the substitution even had it been shown that this particular vessel was used as a dwelling house but as I have stated there was no such evidence. I take the view however that the definition given in Section 441 is quite wide enough to cover the circumstances of the present case and it must be taken that a ferry boat is 'property' within the meaning of that section.
9. The ground on which Mr. Mayne has expressed his opinion is as I have indicated, that generally speaking it is not possible to enter into or upon a moveable property. Obviously in the case of a car or carriage or aeroplane or a boat it is quite easy to conceive circumstances where a person has lawfully entered into or upon any one of these things and yet has unlawfully remained there with such intent as would constitute an offence under the provisions of Section 441. In my judgment the right order to make in the present case is that the decision of the Magistrate who tried the case should be restored and that the accused should stand convicted under Section 447, I. P. C. Mr. Mukherjee has made an appeal for reduction of the penalty which has been imposed. It is clear that the action of Dhananjoy Dhara was high-handed in the extreme. He not only took possession of the boat which he knew bad been leased to Panchu Gopal Dhani but he proceeded to appropriate to himself moneys which might otherwise have gone into the pockets of Panchu Gopal Dhani. In all the circumstances I cannot see any reason why it should be said that the fine of Rs. 200 which has been imposed is in any way excessive. The rule will be discharged but an order will be made restoring the original order of the Magistrate.