1. This is a Rule against an order of acquittal of an offence under Section 448, Penal Code. The prosecution case was that one Dr. S. Paul was tenant in respect of certain premises, No. 27, Pipe Road. He had to leave them on 1st September 1946, owing to the riots and gave vacant possession to an officer of the landlord who locked the doors. When it was possible to visit the premises on 15th November, the landlord's officer found the accused one Ismail and others in occupation of the premises and on being asked to vacate they threatened him with assault and restrained him from entering the house. The case was originally tried by one Mr. Saha who first framed a charge of criminal trespass by unlawful entry with intent to take forcible possession of the premises. After defence witnesses had been examined this was amended to one of unlawful remaining on the premises with the intent of wrongfully restraining the landlord from entering. The case was not finally disposed of by Mr. Saha but was transferred to Mr. Guha who then acquitted the accused. He held that Section 441 had no application to a case where there was unlawful entry without the necessary intent required for criminal trespass followed by an unlawful remaining with that intent. For this view he relied on the case in Jamnadas v. Emperor : AIR1945All26 . He then observed further:
Further from the facts of the prosecution case it cannot be said that the accused was remaining there with the intention of restraining the complainant and others.
The accused restrained the complainant because he was asked to vacate a house, entry into which, according to amended charge, was lawfully obtained. The evidence on the record does not suggest that the accused was remaining there with the intention of restraining the complainant and others. It may be noted here that the original charge i.e., entry with intention to get forcible possible possession was also not maintainable. The section contemplates on entering upon property with a certain intention specified in the section: Ramzan v. Emperor ('29)16 A.I.R. 1929 Sind 149.
I am afraid I am totally unable to follow this reasoning.
2. The defence was that the accused had been admitted into the premises by the tenant Dr. S. Paul and a lawyer's letter from him on this subject was put in as Ex. A. The prosecution examined Dr. S. Paul and the lawyer to prove that this was a bogus letter, the lawyer stating that the accused himself came pretending that he was an agent of Dr. S. Paul and had the letter written. The Magistrate found this to be a fact. It seems that in some way the learned Magistrate has managed to satisfy himself that the accused should be acquitted owing to some juggling with the charges and deduction from the charges themselves as to the facts which it was the Magistrate's duty to find. The acquittal cannot be supported at all by the reasons given by the learned Magistrate.
3. The order of acquittal is accordingly set aside and the case is remanded for trial of the accused on a charge of house trespass under Section 448, Penal Code, by unlawfully entering the premises No. 27, Pipe Road, with intent to intimidate, assault or annoy the landlord. A charge accordingly should be framed and the defence may be given an opportunity to cross-examine any of the prosecution witnesses already examined with respect to this amended charge and they may call also defence witnesses if they so desire. The trial will be held by some Magistrate other than Mr. Guha nominated by the District Magistrate, 24 Parganas. The Rule is made absolute accordingly.