Trevelyan and Beverley, JJ.
1. The first question which we must decide in this case is whether we ought to hold that the Magistrate had no power to try this case summarily, and that his proceedings are illegal.
2. Learned Counsel for the accused cited to us cases to show that the offence was, for the purposes of Section 260 of the Criminal Procedure Code, determined by the complainant, and that if a complaint be made of an offence not triable summarily, the Magistrate cannot under any circumstances investigate the complaint summarily.
3. Although there are expressions used in some of the cases sufficient to justify this argument, we do not think that the cases are so unanimous as to force us to the same conclusion.
4. We say this as it appears to us that there may frequently be cases in which the charge has been exaggerated, and is, on examination by the Magistrate before process is issued, reduced to its proper proportions. This is notoriously the case in respect of many charges, which, according to the complaint, would be triable exclusively by a Court of Session, but which when shorn of their exaggeration the Magistrate very properly finds to be comparatively slight offences within his own cognizance.
5. If the complainant does not complain of this course, it is difficult to see why the Magistrate should adopt the procedure applicable only to the exaggerated charge.
6. In the case of The Empress v. Abdool Karim I.L.R. 4 Cal. 18 cf. p. 20, Mr. Justice Ainslle, with the concurrence of Mr. Justice Broughton, says: 'If a charge of an offence not triable summarily is laid and sworn to, the Magistrate must proceed with the case accordingly, unless he is at the outset in a position to show from the deposition of the complainant that the circumstances of aggravation are really mere exaggerations and not to be believed.' In another case, The Queen v. Aboo Sheikh 23 W.R. Cr. 19, where a man was charged with rioting, and the Magistrate tried the case summarily as one of mischief and unlawful assembly, Phear and AINSLIE, JJ., declined to interfere at the instance of the accused person.
7. In the matter of Mewa (6 N. W., 254), it was held that a Magistrate has a discretion to enquire into and try a person on any charge which he may consider covered by the facts reported without reference to the particular charge which may have been pressed, and without reference to the procedure, which, when he has determined the offence with which he will charge the accused, it will be competent for him to adopt. In the two latter of these cases the Judges do not seem to have heard any argument, but the same observation can be made with regard to the cases of The Queen v. Johrie Singh 22 W.R. Cr. 28, and Ram Chunder Chatterjec v. Kanye Laha 25 W.R. Cr. 19, cited to us by Mr. Woodroffe for the petitioner.
8. In the present case the complaint was made by Mr. Boddam, who did not-pretend to be an eye-witness of what had occurred. The Magistrate, before issuing process against the accused, examined an eye-witness, one of Mr. Boddam's servants, and his statement showed what the real complaint was. We think that this case comes within the class of cases contemplated by Mr. Justice Ainslie and that when the Magistrate ascertains that the facts which are alleged to have taken place disclose only an offence triable summarily, ha can dispose of such case summarily. The mere fact that the complainant enumerates sections of the Penal Code relating to offences not triable summarily,, does not, we think, affect the jurisdiction of the Magistrate unless the facts of which he really complains disclose such offences.
9. We think that this case was triable summarily. It has also been urged before us, that no offence has been committed, the object of the intruders only being to survey the premises.
10. No doubt that was their primary object, but when we find them going on to the premises in Mr. Boddam's absence and without his leave, and taking three swords with them, we think it clear that they intended to intimidate Mr. Boddam's servants into not opposing their entering upon the premises, which, from their relation with Mr. Boddam, they must have known he would have objected to their entering. It is true that they seem to have to some extent attempted to avoid discovery, but when accosted by Mr. Boddam's servants they persisted in their trespass, and endeavoured to prevent opposition by the false statement that they had been sent by the orders of the Bengal Government.
11. The trespass was most unwarrantable, and if it were to be tolerated that while two persons are litigating as to a property, one may go armed on to the property of which the other is in possession for the purpose of getting materials for an hostile application, breaches of the peace would be frequent.
12. We think, therefore, that the conviction must stand, and we do not think that the fine was under the circumstances excessive.
13. The rule is, therefore, discharged.