1. The petitioners in this case have been found guilty of having committed an offence punishable under Section 148, Penal Code, as well as of offences punishable under Sections 447 and 426. Penal Code, and they have been sentenced to pay certain fines.
2. The case for the prosecution briefly is this: The land in suit belonged to a zemindar of Sainthia in the District of Birbhum. It was let out to the complainant who again let out the land to one Barkatulla. The land was fallow and Barkafulla sought to bring the land under cultivation by erecting ails upon it. It is Said that the accused persons at about 7 or -9 o'clock in the night came there and out the ails. On getting information of this, Barkatulla and four or five others went to the locality and seized three of the accused persons and took them to the thana and lodged a first information against them. The other persons who were there ran away. On these allegations the accused were pro. secuted for committing the offences mentioned above.
3. The defence taken is that this land has been used by the villagers as pasturage for over 50 years and that neither Barkatulla nor Nepal had any right to interfere with the villagers' right of pasturage and erect ails on the land. The accused inter alia raised a plea that they broke the ails in the exercise of a bona fide claim of right. This plea was not accepted and -the accused were convicted. They have obtained 'the present rule against this order of conviction.
4. The main point for decision is whether the defence has succeeded in showing that the accused acted in the exercise of a bona fide claim of right. In my opinion, the evidence indicates that the accused were acting in the exercise of such a claim, It has been admitted by the prosecution witnesses that the land was used for grazing cattle. There is sufficient evidence to indicate that this right has been exercised for a long time. It may bothat this fact does not give them the right to prevent the land from being cultivated. That is not the point for decision. the point for decision is whether they believed that they bad the right of pasturage by reason of the fact that this right has been exercised for the lost 60 Tears. The learned Sessions Judge who heard the appeal has refused to believe this plea and he makes a somewhat curious remark'. He says: 'There can be no question of a bona fide claim of right as no right existed.' To me this statement seems to be meaningless. The question of bona fide claim of right arises only when no right exists. If the right existed, the question of a bona fide claim of right does not arise. I find from the evidence that the accused persons acted in the exercise of a bona fide claim of right. That being so, the question arises whether they can be guilty of any of the charges framed against them. They have been charged under Section 143, Fenal Code, and it is said that the unlawful common object was to commit mischief and criminal trespass, that 1b to say, the charge was based on the third clause of Section 141, Penal Code. Now, can it be said that the accused persons had the common object of committing mischief Mischief has been defined in Section 425, Penal Code, and it presupposes on the part of the ao-cussed an intent to cause wrongful loss oc damage to the public or to a person or the knowledge that by his act he is likely to cause wrongful loss or damage to the public or to any person. Here, obviously, there is no intent to cause wrongful loss or damage because the intention was obviously to exercise their right of pasturage. It was argued that they knew that by cutting the ails they were likely to cause wrongful loss or damage, Now, wrongful loss means loss by unlawful means. Let us assume that the erection of the ails was unlawful. In such a case, if a person came and destroyed the ails on the ground that they were interferingwith his right even though the destruction of the ails may cause loss or damage to the person who erected it, it would not be unlawful loss or damage be-cauiie the person removing the ail would be Actiog lawfully. Now, the accused in this case believed that the erection of the ail was unlawful and therefore they removed the ail. It cannot be said therefore that they acted with the knowledge that they were likely to cause unlawful loss or damage.
5. As regards trespass, the position is the same. In order to constitute criminal trespass, there must be an intention to oommit an offence or to intimidate or insult or annoy a person in possession of property. Here, there was no intention to commit any offence nor was there any intention to intimidate, insult or annoy. The very fact that' these persons went there surreptitiously in the night negatived such an intention. It was pointed out on behalf of the Grown that there is evidence of witness No, 1 for the prosecution that the accused party consisted of 100 persons and they were armed with lathis. That evidence is obviously false because the facts belie such a state of affairs. If the com- plainant'a party consisted of only five persons and if the accused were there 100 strong with lathis, it would be impossible for these five persona to go scatheless and to be able to arrest three of the 100 persons and inflict injuries on them.
6. In these circumstances, I be ld that the conviction cannot be supported. I set it aside and acquit all the accused petitioners. The fines if paid, shall be refunded. The rule is made absolute.