STATE OF RAJASTHAN Vs. BALWANT SINGH

JUDGEMENT

(1.) This is a State appeal under section 378 (1) of the Code of Criminal Procedure, against the order of the learned Munsif and Judicial Magistrate, 1st Class Jodhpur, in case No. 140/75, under Sec. 447 of the Indian Penal Code.

(2.) Though, the learned Magistrate has wrongly acquitted the accused-respondent of the offence, but; as I will presently show on facts no useful purpose will be served in setting aside the order of acquittal, and sending the accused-respondent back for trial before the learned Magistrate. The learned Magistrate has acquitted the accused under Sec. 265 (1) of the Code of Criminal Procedure of the offence under Sec. 447 of the Indian Penal Code, after perusing the papers submitted along with the police report, on which, cognizance of the offence was taken. Under Sec. 255 (1) of the Code of Criminal Procedure, an order of acquittal can only be recorded if after taking all the evidence, which has been produced by the prosecution in support of the case, the Magistrate finds the accused not guilty. In the instant case therefore, the learned Magistrate could not acquit the accused under Sec. 255 (1) of the Code of Criminal Procedure, because no evidence of the prosecution had been recorded. But, it appears that the learned Magistrate has purported to act under Sec. 258 of the Code of Criminal Procedure, which empowers the Magistrate in any case instituted otherwise than upon complaint for reasons to be recorded by him, to stop the proceedings at any stage without pronouncing any judgment and where such stoppage of proceeding is made after the evidence of the principal witnesses has been recorded, pronounce a judgment of acquittal, and in any other case, release the accused, and such releases shall have the effect of discharge and not acquittal. Therefore, so far as the legal position is concerned, the order of the learned Magistrate acquitting the accused, cannot be said to be in accordance with law. But I shall presently show that on facts no useful purpose will be served by setting aside the order of acquittal of the accused and in sending the case back to the learned Magistrate.

(3.) Neither from the First Information Report, nor from the evidence, collected during the investigation of the case, it appears that any ingredients of an offence under Sec. 447 of the Indian Penal Code, are made out. All cases of encroachment in the property of another, are not necessarily cases of criminal trespass as defined under Sec. 441 of the Indian Penal Code. A trespass to be a criminal trespass must be with intent to commit an offence or to intimidate, insult or annoy any person in possession of such property. In the instant case, it is not even stated either in the First Information Report or in the statements of the witnesses recorded under Sec. 161 of the Code of Criminal Procedure, as to when the act of trespass was committed by the accused. It has not been mentioned that such act of trespass was committed with intent to commit an offence or to intimidate, insult or annoy any person in possession of the property. As such, no prima facie under Sec. 447 of the Indian Penal Code is made out.