1. The Judgment of the Trying Magistrate in this case is most unsatisfactory. He has not considered in his judgment the know ledge or the intention with which the accused caused the bamboo-fencing to be removed. Nor does it appear from his judgment that he came to the conclusion that the accused entered into or upon property in the possession of the complainant, or what his intention was in trespassing, if he did so. The result is that it is extremely difficult from the judgment to ascertain what was in the mind of the Magistrate when he convicted the accused under Sections 447 and 426 of the Indian Penal Code. He seems to have discussed the case as if it was of a civil nature. Having done so, he had to deal with it as a criminal trial which in fact it was. It would have been much better if the Magistrate had considered whether or not the case was of a civil nature and. if he came to the conclusion that only a civil wrong had been committed he should have said so and. dealt with the case accordingly. If, on the other hand, he was of opinion that a criminal offence had been committed, though he might refer to the evidence in a manner equally appropriate to civil proceedings, he should not have lost sight of this fact that he was dealing with a criminal prosecution and ultimately he should have disposed of the case purely from the stand-point of the Criminal law. This judgment of the learned Magistrate, in my opinion, is neither the one nor the other.
2. The judgment and order of the Deputy Magistrate of Berhampore, dated the 6th December 1922, must be set aside. The case is a petty one, but, even so, in the circumstances, there must be re-trial. The case is, therefore, remanded in order that it may be tried by some other Magistrate and we leave it to the District Magistrate to nominate such Magistrate.
3. The sums ordered to be paid, if paid, will be refunded.
4. I agree with the order.