Debabrata Mookerjee, J.
1. This is a petition for revision of an Older made by a Magistrate, at Alipore by which the petitioner were convicted under Sections 447 and 143, Penal Code. The trial Magistrate sentenced the petitioners to pay a One of Rs. 25/- each in default to suffer rigorous imprisonment for one month each under Section 447 of the Code. No sentence was however passed under Section 143. The petitioners thereafter applied before the Sessions Judge 24-Parganas for a reference to this Court with the recommendation that the convictions of and the sentences imposed upon them be set aside; but the learned Additional Sessions Judge who came to deal with the matter declined to interfere by an order dated 25-9-1954. Thereafter the petitioners moved this Court and obtained the present Rule.
2. The fads shortly stated are that the opposite party was me owner and occupier of a plot of arable land within Tollygunge P. S. On 30-11-1953 the opposite party lodged an information with the Tollygnnge police to the effect that on the night previous certain persons who were described as members of the Executive Committee of Sri Colony had trespassed upon the land and erected 4 huts. It was further stated that the aggressors had bean armed with deadly weapons and formed themselves into an unlawful assembly.
3. The police took cognizance and an investigation followed. It resulted in a charge sheet being submitted against the petitioners and another who were eventually tried before the learned Magistrate upon charges under Sections 447 & 147. Penal Code. At the trial the case made was to the effect that the complainant had been possessing the land for a long time, by cultivating it and growing crops upon it. The petitioners with others came upon the land with lathis etc. and started constructing the huts. There was protest made but the petitioners paidno heed to the protest and went on completing the construction.
4. At the trial two charges were framed. First, that the petitioners formed themselves into an unlawful assembly with the common object of forcibly occupying the plot of land in question belonging to the complainant to his annoyance and injury; Secondly, that the petitioners committed criminal trespass by entering into and remaining on the land in possession of the complainant to his annoyance and injury,
5. To the charges thus framed in the case the petitioners pleaded not guilty & the defence inter alia was that the elements of the offences charged bad not been proved or established by the evidence on the record.
6. The learned Magistrate believed the prosecution evidence and convicted the petitioners of the charge under Section 447, Penal Code, and sentenced them as stated above. As regards the other charge under Section 147 the learned Magistrate thought the evidence disclosed commission of a lesser offence and he recorded a conviction under Section 143 of the Code and passed no sentence thereunder.
7. The trial Magistrate held that the acts of the accused came within the mischief of Section 447, Penal Code, inasmuch as the complainant had been in possession of the land in question and that the nuts were constructed to the annoyance and injury of the complainant. The Magistrate reinforced this finding by reference to the fact that the petitioners had not the semblance of a right to the land therefore the ingredients of the offence of criminal trespass had been clearly made out.
As respects the other charges the Magistrate found that the petitioners were members of an assembly the unlawful common object of which related to forcible occupation of the plot in question to the annoyance and injury of the complainant.
8. It is quite clear that the offence under Section 143 of which the petitioners were eventually convicted was really one which related to the entertainment of a common object which in its active phase constituted the subject-matter of the other charge under Section 447. It is thus another version of the charge under Section 447 of the Code with the additional element of membership of an assembly with the unlawful common object just mentioned.
9. Thus it falls to be considered whether the real gravamen of the two charges in the case has been established by the evidence on the record. An assembly would become unlawful only when it had one or other of the different objects mentioned in Section 141, Penal Code. By a process of elimination the one object which can be said to be unlawful in the circumstances of the present case is that the petitioners with others intended to commit an offence of criminal trespass.
Therefore for the purpose of the two chargesit is essentially necessary to see whether the evidence establishes the ingredients of Section 441, Penal Code.
10. Section 441 of the Code provides that a person entering upon property in the possession of another must do so with intend to commit an offence or to intimidate, insult or annoy any person in possession of such property. The second part of Section 441 does not really come into play in view of the case made and is therefore left outof consideration. It is thus clear that there must be entry upon, property in possession of anotherto commit an offence or to intimidate, insult or annoy a person in possession of that property.
There is no allegation whatever in the presentcase that the petitioners intended to commit any offence other than the offence of criminal trespass. All that was said in the evidence was that the petitioners entered upon the plot in question which was in the possession of the opposite party in order to intimidate, annoy or insult him.
It is quite understandable that as a result of this entry made by the petitioners the opposite party was insulted or more properly lelt annoyed. But the real question is whether by entering upon the property in the possession of the complainant the petitioners themselves had intended to insult intimidate or annoy the opposite party. The evidence, such as it is, or even the findings arrived at by the Courts below do not warrant the conclusion that the petitioners could reasonably be said to have constructed the huts in order to intimidate, insult or annoy him, although the inevitable result of the act of the petitioners must have been annoyance to the complainant.
It is therefore essentially necessary in a case of this kind to examine the evidence relative to the state of mind of the person who is alleged to have committed the offence, and it would be utterly Wrong to rely on the result and annoyance of the complainant to react an inference of guilt of the person charged.
The resultant annoyance or insult felt by the complainant is a wholly irrelevant consideration in a charge under Section 441. The Courts below appear to have completely misdirected themselves in this regard. The learned Judge formulated question which he had to decide with prcis(SIC) and accuracy; but when it came to react a find(SIC) as respects the acts of the petitioners alleged(SIC) have been committed with the intent to intimidate, insult or annoy the complainant, the learned Judge felt the difficulty of drawing the necessary inference against the petitioners and he filled the void, if I may say so, by calling in aid a wholly extraneous circumstance, namely, the helplessness of the complainant who was described as an old man of 80 or 90 years of age in that predicament.
The complainant may have the sympathy of the Court but such sympathy cannot do duty for the essential finding that must he reached upon evidence yielding the inference that the petitioners had intended to annoy, insult or intimidate the complainant.
11. It is equally clear that the other finding of the learned Judge to the effect that the petitioners had not even the semblance of a right to go upon the land which must necessarily have caused annoyance to the complainant is wholly insufficient for the purpose of conviction under Section 447 of the Code.
12. It appears the learned. Judge's 'attention was drawn to the decision of the Privy Council and other reported cases in which this question was gone into with care; but the learned Judge, as I have already said, set before himself the proposition or law with exceptional clarity but in arriving at his findings which must have had to be based upon the evidence before him, he, failed to apply the law correctly to the facts.
13. If the charge of criminal trespass under Section 447 cannot be sustained it is extremely difficult to see how the other charge under Section 143 of the Code can be maintained. Leaving, out of consideration the unnecessary appendage in the charge under Section 143, the substance of it seems to be that the petitioners with others formed themselves into an assembly with the unlawful common object to commit the offence of criminal trespass.
If the evidence is insufficient to prove the substantive charge of criminal trespass it will be extremely difficult to hold that the petitioners were members of an unlawful assembly the only common object of which was to commit the offence of criminal trespass, as an abstract proposition of law it might not be inconceivable that some persons might form themselves into an unlawful assembly for the purpose of committing an offence of criminal trespass although no actual offence of trespass was committed but then that would be a position very much divorced from the realities of the situation and having regard to the evidence adduced in the case I think it would be extremely risky to hold the petitioners guilty of the other' charge under Section 143, Penal Code in view of the findings already arrived at with regard to the charge under Section 447 of the Code.
14. The result is that this Rule is made absolute. The conviction of and the sentences imposedupon the petitioners are set aside. The fines, ifpaid, should be refunded.