N.C. Talukdar, J.
1. This Rule is at the instance of the two accused-petitioners, Giri Bala Shau and Lachmi Shau, and is directed against an order dated the 31st January, 1973 passed by Sri Ramabilash Goswami, Presidency Magistrate, 8th Court, Calcutta, convicting the two accused-petitioners under Section 448 of the Indian Penal Code and sentencing them to pay a fine of Rs. 100/- each, in default, the accused-petitioner No. 1 is to suffer simple imprisonment for one month and accused-petitioner No. 2 to suffer rigorous imprisonment for one month in case No. C. 622 of 1970. The two co-accused were acquitted by the learned trying Magistrate.
2. The facts of the case can be put in a short compass. Four accused-persons were placed on their trial before the learned trying Magistrate to answer a charge under Section 448 of the Indian Penal Code and two of them, viz. accused Nos. 3 and 4 were ultimately acquitted. The prosecution case briefly is that the accused persons had forcibly broken open the padlock of room being room No. 6 on the first floor of premises No. 155, Rabindra Sarani, the tenant where-of was the complainant's husband, with an ulterior criminal intent on the 15th March 1970 at about 7-30 p.m. The accused persons took possession of the room and committed theft of the articles kept therein. The complainant and her husband at the time were on their way to their native place in Maharashtra, They came back and occupied room No. 7 but could not get back the possession of room No. 6. A petition of complaint was filed on the 16th September, 1970 before the learned Additional Chief Presidency Magistrate. Processes were issued under Sections 454, 341 and 380 of the Indian Penal Code and ultimately on his transfer the charge was amended to one under Section 448 of the Indian Penal Code against all the accused persons. The defence case, inter alia is that the accused persons are not guilty; that the entry was not in any way with an ulterior motive but on a due surrender of the tenancy by the complainant's husband; and that the entry complained of was not accompanied in any way with intent to commit an offence or to intimidate, insult or annoy the person in possession of property. Eight witnesses were examined on behalf of the prosecution, two of whom were not tendered for cross-examination and their evidence was expugned. Besides, this, the prosecution proved several exhibits. The learned Magistrate ultimately by his order dated the 31st January, 1973 acquitted the two co-accused and convicted the accused-petitioners as mentioned above. An application under Section 522 of the Code of Criminal Procedure appears to have been filed by the complainant on the same date and that it still pending in the Court below. The order of conviction and sentence referred to above has been impugned by the accused-petitioners and the present Rule was issued along with an ad interim stay, as prayed for, till tha disposal of the Rule.
3. Mr. Bejoy Kumar Bhose, Advocate (with Mr. Pinaki Chandra Motilal Advocate) appearing in support of the Rule on behalf of the two accused-petitioners contended in the first instance that the essential ingredients of an offence under Section 448 of the Indian Penal Code being conspicuous by their absence, the order of conviction and sentence, as passed by the learned Presidency Magistrate, is clearly bad and repugnant. Mr. Bhose in this context submitted that the dominant intention accompanying such entry as enjoined under Section 441 of the Indian Penal Code is the intention to commit an offence or to intimidate, insult and annoy a person in possession and the failure on the part of the court of fact to take the same into consideration has resulted in a non-conformance to the said provision vitiating ultimately the order of conviction and sentence, Mr. Bhose further submitted that the learned Presidency Magistrate has completely overlooked the impact of the considerable delay in filing the petition of complaint in a criminal proceeding. Although there is no question of any limitation, the point nonetheless is whether the person concerned can avail of the alternative remedy available to him through the civil court. Mr. Moni Bhusan Sarkar, Advocate (with Mrs. Moitryee Ghose, Advocate) appearing on behalf of the complainant opposite party joined issue, Mr. Sarkar submitted that the evidence on the record clearly established the offence of criminal trespass and the special plea taken by the accused persons has not been established although the onus is on them to prove the same. Mr. Sarkar further submitted that there is clear and clinching evidence and the court of fact having appraised the evidence on the record and come to relevant conclusions, this Court sitting in revision may not be pleased to interfere with the same. As to the delay, Mr. Sarkar contended that a cogent explanation has been given by P.W. 5 in her evidence and there is no reason as to why the same should be disbelieved and in any event on that ground alone the claim of the complainant should not be clouded. Mr. Amiyalal Chatterjee, Advocate, appearing on behalf of the State, submitted that there is quite a considerable body of evidence on the record and the court of fact has appraised the said evidence and has come to certain conclusions. It cannot be said that those conclusions are clearly bad being against the weight of the evidence on the record. Mr. Chatterjee, however, in his fairness submitted that ,the learned Presidency Magistrate in any event should have taken into consideration the impact of the considerable delay made by the complainant in lodging her complaint. In any event, he could not support the ultimate conclusions arrived at on the basis of the finding that the 'accused Nos. 1 and 2 having failed to prove that they entered into the possession of room No. 6 by virtue of alleged surrender, it follows that they entered into possession by force or clandestine means'. Mr. Chatterjee in this context submitted that findings under Section 448 -of the Indian Penal Code must be in accordance with the provisions laid down under Section 441 of the Indian Penal Code and that a mere entry alone would not amount to an offence. The learned trying Magistrate having not considered this the ultimate order has not been proper. In view of the evidence, however, Mr. Chatterjee ultimately submitted that there may be a remand for a retrial.
4. I have heard the submissions made at the Bar and I have considered the materials on the record. The evidence I have been taken through by the learned Advocates, appearing on behalf of the respective parties, as also the exhibits. Having given my anxious consideration to the same, I ultimately hold that the essential ingredients of an offence under Section 448 of the Indian Penal Code have not been established beyond reasonable doubt by the gamut of the evidence on the record. It is pertinent in this context to refer to the provisions of Section 441 of the Indian Penal Code, laying down the definition of criminal trespass, viz., that whoever enters upon property in the possession of another with intent to commit an offence or to intimidate, insult or annoy any person in possession of such property etc. is said to commit criminal trespass. It is abundantly clear, therefore, that the intention of the legislature is to pinpoint the intention on the part of the trespasser to commit an offence or to intimidate, insult or annoy etc. If and when the trespasser has that blameworthy mind in effecting the entry into the property in possession of some others, he is said to have committed the offence of criminal trespass. There was a cloud at one stage over the meaning of the words 'criminal trespass' and conflicting decisions were given by the different Courts until the cloud was lifted by their Lordships of the Judicial Committee in the well-known case of Sinnasamy Selvanayagam v. The King reported in (1951) 55 Cal WN 1 (PC). The aforesaid case is in the backdrop of Section 427 of the Ceylon Penal Code which is equivalent to Section 441 of the Indian Penal Code and therefore the decision is on the point. Sir John Beaumont delivering the judgment observed, inter alia, that the dominant intention of the accused in such cases of criminal trespass was to commit an offence or to insult, intimidate or annoy the occupant but mere entry upon land made under a bona fide claim of right, however, ill-founded in law the claim may be, does not become criminal merely because a foreseen consequence of the entry is annoyance to the occupant. I respectfully agree with the observations and I hold that the dominant intention as ' referred to above has not been established in the present case to bring the case within the ambit of Section 448 of the Indian Penal Code. Mr. Sarkar appearing on behalf of the complainant opposite party referred in this context to the case of Rash Behari Chatterjee v. Fagu Shaw reported in : 1970CriLJ4 . Mr. Justice Sikri (as his Lordship then was) delivering the judgment of the Court observed in the facts of the said case that when the decree obtained by the complainant from the civil court was executed and the delivery of possession of the case land was obtained by him through the court, the accused persons when they trespassed into the land and were found making preparation for construction of bamboo structures, it must be held that the intention of the accused was to annoy the complainant who was in the possession of the land. The principle laid down by the Supreme Court really is not in any way different from the principles laid down above by the Judicial Committee. The facts of the ease under consideration by the Supreme Court are clearly distinguishable because in the first instance there was resistance in that case by the accused persons to the execution of the decree sought to be made through the Nazir of the Serampur Civil Court and the process-servers. Because of the resistance and refusal to give possession on the part of the accused, the said attempt failed. However, on a following date the Nazir with police help went to the spot for delivery of possession and the complainant obtained actual physical possession. In view of the clear knowledge on the part of the accused about the factum of possession, the subsequent trespass made by them on the land with the consequent dispossession thereof of the complainant, has been blatant and gives rise to the inference that it must have been done with the intention to commit an offence, or to intimidate, insult or annoy any person in possession within the bounds of Section 441 of the Indian Penal Code. The said case, therefore, does not help the present contention of Mr. Sarkar. The submissions of Mr. Bhose accordingly, on this point, succeed.
5. There is a considerable force again behind the second submission of Mr. Bhose as to the effect of considerable, delay of about six months in lodging the petition of complaint. The date of occurrence is the 15th March, 1970 and on her own admission, P.W. 5 came back to Calcutta on the 23rd March, 1970. The considerable delay of about six months thereafter, according to the complainant, is because the landlord told her and her husband that they would deliver back possession. Subsequently they found out that the tactics are dilatory and they came to the criminal court. It is abundantly clear, however, that there is no whisper of a complaint either in the first blush or even for a considerable time to come. No G. D. entry is there and no other complaint made to anybody. The impact of this delay has not been taken into consideration by the court of fact. Mr. Bhose has contended that the dispute between the parties, as is borne out by a considerable body of witnesses, is of a civil nature. This is ultimately a dispute between the landlord and the tenant, highlighted by differences and litigations and ultimately resulting in a surrender, wherefrom the tenant is alleged to have resiled and ultimately gave rise to the present criminal case. For a proper determination of the points at issue between the parties, therefore, the civil court is the proper forum. Mr. Sarkar has submitted that this will be loading the dice heavily against the tenant as already a considerable period of time has elapsed and it is just and fair that the matter be disposed of in the criminal court. It is difficult for me to agree with him because justice must be in accordance with law. The complainant appears to have contributed to the considerable delay caused in the case. The learned trying Magistrate has not referred to the effect of delay and considered it, and accordingly the order ultimately passed by him has been bad and improper. The second branch of Mr. Bhose's contention also succeeds.
6. This is not all. A reference to the judgment brings to light that the ultimate conclusion arrived at by the learned Presidency Magistrate is not preceded by the relevant steps of reasoning which one would expect to justify the order of conviction passed under Section 448 of the Indian Penal Code. The learned trying Magistrate found towards the end of his judgment that 'Now as the accused Nos. 1 and 2 have failed to prove that they entered into possession of room No, 6 by virtue of alleged surrender, it follows that they entered into possession by force or clandestine means'. This finding is clearly bad and improper. The court of fact is entitled to appraise the evidence and arrive at proper findings within the ambit of Section 448 of the Indian Penal Code, viz. that the legal materials on the record disclosed that the dominant intention on the part of the trespasser was to commit annoyance within the bounds of Section 441 of the Indian Penal Code. But merely because the special defence taken by the accused persons is not relied upon and the story of surrender is not believed, it does not necessarily follow that the entry on the part of the accused persons is accompanied by an intention to cause annoyance or insult and to intimidate a person in possession. Such a conclusion is not warranted by the materials on the record and the steps of reasoning are missing A conviction by a criminal court cannot be based on hypotheses and assumptions not warranted by the legal materials on the record and the benefit of doubt, if it at all arises, must enure to the accused and not to the complainant. The failure on the part of the learned Presidency Magistrate to take the same into consideration has ultimately vitiated the order of conviction and sentence. On this ground also the Rule should be made absolute.
7. Before I part with the case, I must make it quite clear, however, that I make no observations on the merits of the ultimate dispute between the parties and the complainant is at liberty to go to the civil Court for a proper determination of her claim, if she be so advised.
8. In the result. I make the Rule absolute : set aside the order of conviction and sentence passed by Sri Ramabilash Goswami, Presidency Magistrate, 8th Court. Calcutta on the 31st January, 1973 in case No. C-622 of 1970 under Section 448 of the Indian Penal Code; and I direct that the fines, if paid, are to be refunded.