1. This is a Rule against an order of acquittal in a case Under Section 448, Penal Code.
2. The prosecution case was that the accused opposite party were three tenants, each in respect of one shop room in a building at Work, shop Road, Kanchrapara, paying a rental of Rs. 30/- per month. Behind these shop rooms, the complainant was constructing three other rooms. While the work was in progress and before it was complete, the complainant left during the Pujah holidays of 1948 fox a short while. On return he found that the opposite parties had broken open the padlocks of the three rooms under construction, removed a number of tools, some loose doorframes, bags of sand and other things kept inside the rooms and forcibly trespassed into the rooms. On the complainant asking them to vacate the rooms they abused him and threatened him with assault.
3. The learned Magistrate has held that as the complainant was not at the time on the spot in actual physical possession of the rooms and had mere juridical possession, Section 448 cannot apply to the present case. He makes some reference to Section 530, Criminal P.C., apparently meaning Section 622, Criminal P. C., and seems to be of opinion that unless the trespass in question is achieved in conditions which would make Section 522 of the code applicable and justify an order for restoration, then there is no criminal trespass at all.
4. Clearly, his reasons for holding-the accused not guilty are erroneous. He also has held that as the only object of the trespassers was to take possession of the rooms, and as they did not intend to intimidate, insult or annoy the complainant, no case of trespass has been made out. He has presumably some support for this view on the basis that when the trespass was made the complainant was not actually present, bat he overlooks the latter part of the definition of trespass in Section 441, Criminal P. C. There can be no doubt, on the complainant's case, of their intention to annoy and intimidate him when on his return he asked the trespassers to leave the premises. I have been referred to the decisions in the cases of Satish Chandra v. The King, 53 C. W. N. 402 : (A. I. R. (36) 1949 Cal. 107 : 50 Cr. L. J. 161), Soita Biswal v. Dochhi Stri, 12 C. W. N. 269 and Debi Prosanna Ghose v. Joy Narain, 53 C. W. H. 822. In each of these cases, there are special features which take them out-side the terms of Section 441. Every trespass does not necessarily amount to a criminal trespass. These oases are instances where it has been pointed out that the circumstances did not establish criminal trespass. The reasons given here by the learned Magistrate are in no way supported, in my opinion, by any of those decisions. In fact, if they hold good, the provisions of Section 447, Criminal P. C. would be rendered, in my opinion, almost entirely nugatory.
5. The Rule is accordingly made absolute. The order of acquittal is set aside and the case is remanded for trial by the Sub-Divisional Magistrate, Barraokpore, or by some other Magistrate to whom he may transfer the case other than Mr. B.N. Sen.