IN RE: DAVID AND ANOTHER Vs. STATE

JUDGEMENT

(1.) THE Petitioners in these petitions were accused 1 and 2 in C.C. No. 25228 of 1968 on the file of the Fifth Presidency Magistrate, Egmore, and each of them has been convicted of the offence of criminal trespass under Section 447 , Indian Penal Code and sentenced to pay a fine of Rs. 100/ - and in default to suffer R.1. for one month.

(2.) THE case of the prosecution was that the Petitioners committed criminal trespass upon the tank bed in Peravallur belonging to the Government and were found supervising the construction of houses upon the tank bed. S. 441, I. P. C. defines criminal trespass and says that whoever enters into or 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, is said to commit criminal trespass. No evidence has adduced in this case to show that the accused entered upon the tank bed with intent to commit any offence. It may be they have instigated encroachment upon Government property by assisting others to construct huts thereon. But such an encroachment would not constitute an offence within the meaning of I. P. C. Nor is there any evidence to show that the person in possession of the tank bed was sought to be intimidated, insulted or annoyed by the Petitioners. The ingredients or the offence of criminal trespass are conspicuous by their absence in this case and the learned Magistrate was unjustified in convicting the Petitioners of the offence under Section 447, I. P. C. The convictions are clearly illegal. So are the sentences and both are set aside. Petitioners are acquitted of the offences under Section 447 I. P. C. The fine if collected from them shall be refunded to them.