1. This is a petition for revision of an order of the learned Third Presidency Magistrate convicting the petitioners under Section 448, Penal Code and sentencing each of them to pay a fine of Rs. 100.
2. It appears that the petitioners were landlords of Certain premises situate in Synagogue Street. The complainant was a tenant of a shop for which he paid the petitioners rent at the rate of Rs. 65 per mensem. During the very serious disturbances in August 1946 the complainant left the premises and the premises were padlocked. The complainant never communicated with these landlords and never paid any rent. The landlords becoming disturbed applied to a learned Magistrate for permission to break into these premises. Obviously, the learned Magistrate could not grant them such permission, but he told them that they could do so at their own risk. They did enter the premises by removing the padlock. They are now prosecuted for criminal house trespass.
3. There can be little doubt that the petitioners must have believed that the complainant had abandoned these premises. The complainant was a Mahomedan and it would appear as if the premises were in a Hindu locality. In those circumstances, it was natural that he should run away and as far as the petitioners knew he might also be dead. Had the tenant communicated with the petitioners and told them that he intended to continue the tenancy or paid his rent, different considerations would arise. But from the facts it might well be that the petitioners imagined that the tenant had abandoned the premises. Would re-entry by the landlords in those circumstances constitute an offence of criminal trespass? Precisely the same point arose in Emperor v. Jangi Singh ('04) 26 All. 194 in which it was held that when a zamindar under the pretext that one of his tenants had left the village and abandoned his holding, took possession of the tenant's holding wrongfully, in the absence of evidence of one of the objects specified in Section 441, Penal Code, the zamindar could not properly be convicted of criminal trespass, his intention apparently being merely to get possession of the land. At page 195 Sir John Stanley C.J. observed:
His intention possibly was to obtain possession contrary to law, but this of itself would not constitute criminal trespass. Proof of an intention to commit an offence or to intimidate, insult or annoy was necessary. There was no evidence of any such intention, or from which such an intention might be reasonably inferred.
4. In the present case there is no evidence at all from which any inference could be drawn other than the inference that the landlords wished to resume possession of property which might well have been abandoned. There was no evidence of any of the intents necessary to constitute a criminal trespass and that being so the petitioners should not have been convicted. The proper course for the complainant was to seek his remedy in a civil Court. In the result, therefore, this petition is allowed, the convictions and sentences are set aside and the petitioners are acquitted. The fines, if paid, must be refunded forthwith. The rule is made absolute.