1. This is a petition for revision of an order of a learned Magistrate discharging the opposite parties against whom a criminal prosecution under Sections 448, 880 or 341, Penal Code had been started. The case against the opposite parties was that one of them had entered certain premises which admittedly he owned but which had been let to the complainant. According to the complainant, he was the tenant of a room in a be use owned by one of the opposite parties for which the eomplainanf paid Rs. 11 per month and had been tenant since the year 1943. According to the complainant he left for his home in the Punjab in February 1947 and on returning to Calcutta on 21st March 1947, he found the opposite parties in possession of his room, the padlock of the door having been broken and all his things stolen. The opposite parties would not permit the complainant to enter the room.
2. It is clear that before the opposite parties entered this room, one of them made an application to a learned Magistrate, The learned Magistrate of course could not authorise him to break open the lock and enter this room and he merely told him that he could do so at his own-risk. However, some policemen appear to have accompanied the opposite party when he broke open the padlock and opened the room.' There-was nothing secret or underhand in this act. The opposite party acted quite openly which-rather suggests his bena fides.
3. The case for the opposite party was that the complainant was heavily in arrears with his rent and also that he had erected some structure elsewhere which he appeared to have done in order to live in it. The opposite party contended that his action was bena fide and could not possibly amount to a criminal trespass as suggested-by the prosecution.
4. The learned Magistrate after hearing the evidence for the prosecution was satisfied that the opposite party had forcibly entered this room, but he was not satisfied that the evidence disclosed that anything had been stolen or that the opposite party had any intention to Bteal or oommit any offence or had any intention to insult, annoy or intimidate the complainant. The learned Magistrate was of opinion that the opposite party acted honestly and entered with a view to resume possession of a room thought to have been abandoned.
5. The essence of this proseoution wag an Act. of criminal trespass. If the opposite party had any of the intentions stated in Section 441, his entry would be illegal. But in my view on the finding of the learned Magistrate the case could not possibly come within B. 441, Penal Code. That section provides that whoever entere 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 is said to commit criminal trespass. Intent is of the very essence of the offence. Mere entry on another's property is not criminal trespass unless such entry is with intent either to commit an offence, to intimidate, insult or annoy. The learned Magistrate was of opinion that the opposite party entered these premises honestly believing them to have been abandoned and merely entered to resume possession of the abandoned premises. If that was the intention of the opposite party, the owe could not possibly fall within Section 441, Penal Code. How can it be said that a landlord enters a room with an intent to commit an offence or to intimidate or to insult or annoy a tenant who, he honestly believes, has abandoned the premises and has disappeared.
6. The very point was dealt with by myself in an earlier ease, Nizamuddin v. Jinnat Eossain : AIR1948Cal130 where I pointed out that where a landlord honestly enters premises believing them to have been abandoned there can be no offence under Section 441.
7. The Magistrate was not satisfied that any. thing had been stolen and if the entry was not Criminal I cannot see how any offence under Section 441, could be committed.
8. In the result, I can see no ground for interfering with the order of disoharge. I would accordingly disoharge this Rule.
S.R. Das, J.
9. I agree.